State Of Karnataka vs B S Shivaprakash
2023 Latest Caselaw 2406 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 18TH DAY OF MAY, 2023

                      BEFORE

     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

 CRIMINAL REVISION PETITION NO.376 OF 2017

BETWEEN:

STATE OF KARNATAKA
BY LOKAYUKTHA POLICE
REPRESENTED BY PSI LOKAYUKTHA POLICE
BENGALURU-560 001
BENGALURU CITY DIVISION
                                   ...PETITIONER

(BY SRI. PRASAD B.S, ADVOCATE)

AND:

1.    B.S. SHIVAPRAKASH
      S/O B.K. SIDDALINGAIAH
      AGED ABOUT 51 YEARS
      FIRST DIVISION ASSISTANT
      KANNADA BHAVAN, J.C. ROAD
      BENGALURU
      R/AT NO.F298, SHIVA NILAYA
      B.S. 1ST STAGE, 8TH CROSS
      4TH MAIN ROAD, BHARATH NAGAR
      VISHWANEEDAM POST
      BENGALURU-560 091
      PERMANENT RESIDENT OF BYADARAHALLI
      MAGADI TALUK, BELAGUMBA POST
      KASABA HOBLI
      RAMANAGARA DISTRICT-571 511
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2.   M.P. BALIGAR
     KAS (RETD), FORMER COMMISSIONER
     KANNADA AND CLUTURE DEPARTMENT
     BENGALURU
     R/AT NO.37, 6TH CROSS, 35TH MAIN ROAD
     BTM 2ND STAGE, BENGALURU-560 068

3.   K.T. CHIKKANNA
     RETD. JOINT DIRECTOR
     KANNADA AND CULTURE DEPARTMENT
     KANNADA BHAVAN, J.C. ROAD
     BENGALURU
     R/AT NO.892, 1ST 'E' MAIN ROAD
     2ND STAGE(8TH CROSS ROAD)
     GIRINAGAR, BENGALURU-560 085

4.   S.I. BHAVIKATTE
     MANAGER
     SUVARNA KARNATAKA
     KANNADA AND CLUTURE DEPARTMENT
     KANNADA BHAVAN, J.C. ROAD
     BENGALURU
     PRESENTLY DEPUTY DIRECTOR
     RANGAYANA, MYSORE
     R/AT 'A' BLOCK, NO.11
     VISHWA KANNADA SAMMELANA APARTMENT
     VINOBHA ROAD, MYSORE-570 001
                                ... RESPONDENTS

(BY SRI. RAVI .B NAIK, SENIOR COUNSEL A/W
    SRI. MAHABALESH .K. PATIL, ADVOCATE FOR
    SRI. VIJETHA .R. NAIK, ADV. FOR R1, R2 & R4
    SRI. KARTHIK YADAV. V, ADVOCATE FOR
    SRI. S.K. VENKATA REDDY, ADVOCATE FOR R3)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 CR.P.C. PRAYING TO SET
ASIDE THE ORDER DATED 16.11.2016 PASSED BY THE
XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
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SPECIAL    JUDGE,   BENGLURU     URBAN    DISTRICT
(C.C.H.24), BENGALURU CITY IN SPL.C.C.NO.128/2014.

    THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 13.04.2023 COMING ON
FOR 'PRONOUNCEMENT OF ORDER' THIS DAY, THE
COURT MADE THE FOLLOWING:

                             ORDER

This revision is filed by the State through

Lokayuktha challenging the order dated 16.11.2016

passed by the 23rd Additional Civil Judge and Sessions

Judge and Special Judge, Bengaluru Urban District

(CCH-24) and Special Judge for Lokayuktha ('trial

Court/Special Judge' for short), in Spl.C.C.

No.128/2014, whereby the learned Special Judge has

discharged the accused the accused/respondents herein

for the charges under Section 13(1)(c), 13(1)(d) read

with 13(2) of Prevention of Corruption Act, 1988 (P.C

Act, for short).

2. For the sake of convenience, the parties

herein are referred with the original ranks occupied by

them before the trial Court.

3. Accused Nos. 1, 3 & 4 have filed application

under Section 227 and 239 of Cr.P.C seeking discharge.

The allegations of the prosecution are that, the

complainant-Lokayuktha Police have registered a suo-

moto case against Accused Nos. 1 to 4 and submitted

the charge sheet alleging that the accused being the

responsible officers in Kannada and Cultural

Department, misused their official powers and

misplaced/misappropriated 06 Medals out of 25 Gold

Medals of 22 carrot by causing loss to the tune of

Rs.3,12,000/- to the public ex-chequer. The

Investigating Officer seized 19 Gold Medals from the

custody of Accused Nos. 1 and 4. Accused Nos. 2 & 3,

were working there as Commissioner and Joint Director

during relevant period. The Audit Report of Accountant

General Office discloses that there were 24 Gold Medals

available and subsequently only 19 Gold Medals were

found and 06 Gold Medals were found missing, which is

alleged to be dereliction of duty on the part of the public

servants. In this regard, the accused were

chargesheeted.

4. The accused in pursuance of summons

appeared before the trial Court and were enlarged on

bail. However, Accused Nos.1, 3 and 4 moved

application under Sections 227 and 239 of Cr.P.C. for

their discharge on the ground that, they have collected

a document under Right to Information Act from the

Assistant Audit Officer of Accountant General's Office by

letter dated 21.08.2014 i.e., five months after

submission of the charge sheet and sent it to the

Director of Kannada and Cultural Department,

Bengaluru, for deleting Para No.III/IIB:2010-11 and

Para No.IV/2B:2011-12 and in view of dropping of the

charges by the Audit Officer of Accountant General's

office, the allegations of misappropriation or

misplacement does not arise at all and the documents

disclose that, it is only a miscalculation.

5. The said application was seriously contested

by the learned Special Public Prosecutor. The learned

Special Judge after hearing the parties, by the

impugned Order dated 16.11.2016 discharged all the

accused for the offences punishable under Sections

13(1)(c), 13(1)(d) read with Section 13(2) of P.C. Act.

Hence, this revision by the Lokayuktha.

6. Heard the learned Special Pubic Prosecutor

appearing for the petitioner/Lokayuktha and the learned

Senior Counsel for Respondent Nos. 1, 2 and 4 and the

counsel appearing for Respondent No.3. Perused the

records.

7. Learned counsel for the petitioner/Lokayutha

would contend that the learned Special Judge has

committed serious error in discharging the accused. He

would contend that, while considering the application for

discharge of all the accused, the Court has to assess

only the available records submitted along with the

charge sheet and not to consider any other documents

produced by the accused. He would also contend that

the learned Special Judge has erred in considering the

documents produced by the respondents at the time of

hearing the discharge application. He would also

contend that the charge sheet ingredients including the

Audit Report would prima facie disclose regarding

commission of the offences as alleged. He would

further contend that, the ground that complainant

himself being the Investigating Officer, vitiated the

proceedings could not have been considered at the

stage of framing charge and it was required to be

considered only at the time of the trial to show as to

how the accused were prejudiced by this conduct, since

in the instant case, the entire case dependents on

documents. The Investigating Officer has only collected

documents which are undisputed. It is contended that

the Auditor's letter is placed as additional documents,

but it is not a part of charge sheet. He would contend

that only prosecution materials are required to be

looked into and 17 Gold Medals were admittedly seized

from Accused No.1 and 02 Gold Medals were seized

from Accused No.4. In clarification, the Audit Letter is

relied on by the defence. But, that letter is required to

be tested and at whose instance this clarification was

issued and in what context it is issued, is also required

to be considered only during the course of trial and the

prosecution ought to have given an opportunity in this

regard. But, that was not done. He would also contend

that, the Audit Report discloses that, during physical

audit, 24 Medals were noticed, but later only 19 Medals

were traced. He would also contend that the trial Court

has relied on the letter issued at the instance of

accused, which is available in Page No.19 in Volume-

III. But, that was required to be tested during the

course of trial and that whether the letter issued by the

concerned officer was considered and what are the

reasons given by the Auditor is also to be tested during

trial. Further, it is asserted that the said letter is based

on own calculation of the concerned Department and its

officials and that will not prevail, but Audit Report will

prevail. Hence, he would contend that the entire

approach of the learned Special Judge is

erroneous and it has resulted in miscarriage of justice.

Hence, he would seek for setting aside the impugned

order.

8. Per contra, learned Senior Counsel appearing

for Respondent Nos. 1, 2 and 4 would contend that, as

per the case of prosecution, 25 Gold Medals were

entrusted to Accused and 19 were seized and it is

alleged that 06 Medals were missing. He would contend

that, there is no dispute regarding seizure of 19 Medals

and from 2010 Audit is conducted from time to time.

He invites the attention of the Court regarding the

statement of Commissioner and the letter issued

available in Volume No.III at Page No.917 and 986,

wherein it is clarified that only 19 Medals were

available. Contrary to the same, in Volume-II at page

No.134, the Audit Report discloses availability of 20+4

Medals. He would specifically contend that, the letter

issued by the Assistant Auditor would disclose that

these observations were deleted. Admittedly, out of 20

Medals, 03 were distributed and 17 were available and

02 Medals were added to it and 19 Gold Medals were

seized. He would contend that in normal circumstances,

the prosecution evidence is only relevant for considering

the discharge application. But, if an un-impeachable

evidence is produced by the defence, that can be looked

into and in support of his contention, he placed reliance

on 07 decisions noted below:-

i)     State Vs. Rajangam
       [(2010) 15 SCC 369]

ii)    Nitya Dharmananda @ K. Lenin & Another Vs.
       Sri. Gopal Sheelum Reddy & Another
       [Criminal Appeal No.2114/2017-

Arising out of SLP (CRl.) No.8279/2016]

iii) Yogesh V. State Maharashtra [2008) 10 SCC 394

iv) CBI, Hyderabad Vs. K. Narayan Rao [(2012) 9 SCC 512]

v) Union of India Vs. Prafulla Kumar Samal & Another [1979) 3 SCC 4]

vi) State of M.P. Vs. Mohanlal Soni [(2002) 6 SCC 338]

vii) Dilwar Balu Kurane Vs. State of Maharashtra [(2002) 2 SCC 135

9. Learned counsel appearing for Respondent

No.3 adopts the arguments advanced by the Senior

counsel appearing for Respondents No. 1, 2 & 4.

10. Having heard the arguments and perusing

the records, now the following point would arise for my

consideration:

Whether the learned Special Judge has committed error in discharging the accused for the charges levelled against him?

11. At the out-set, it is to be noted here that the

discharge applications were filed by Accused Nos.1, 3 &

4 alone. However, the learned Special Judge has

passed discharge order against all the accused.

Further, the charge sheet is based on the Audit Report

and the Audit Report discloses that, totally 24 Gold

Medals were held in stock and they were not utilized by

the Department, which is available in Page No.171 of

Volume No.II for the year 2011-12. This Audit Report

further discloses that the Department was having 20

Gold Medals in stock till March 2011 and since from

1990, which was observed in the Audit Report of 2011-

12. Further, it is observed that 54 Gold Medals were

purchased during the year 2011 and out of them, 50

Gold Medals were distributed and 04 Medals remained in

stock. As such, 24 Gold Medals were held in stock for

the year 2011-12. There is no dispute that 03 Gold

Medals were distributed to Mr. Harish Kumar, Mr.

Balaram and Mr.Nandakumar. But, they were

distributed in the year 2011 and that was taken note of

in Page 171, wherein there is clear observation that, out

of 54 Gold Medals purchased, 50 Medals were

distributed and 04 Medals were available in stock.

Further at Page No.588 of Volume-II, there is a clear

reference that the Commissioner of Kannada and

Cultural Department in his letter has stated that, for the

year 1996, 2004, 2005 and 2008, one Gold Medal each

was pending and for one more year which is not

mentioned there, two Gold Medals each were held in

stock and in 2010 and 2011, 06 Gold Medals each were

held in stock and total Gold Medals were 20. This is

based on the letter issued by the Commissioner of

Kannada and Cultural Department. On the basis of

these aspects, in the Audit Report at Page-171, there is

clear observation that 20 earlier Gold Medals and 04

Gold Medals of 2011 remained in stock ie., total 24 Gold

Medals were held in stock.

12. Now, the defence counsel has relied on the

statement of Commissioner available at Page Nos. 485

and 486. But, that has been considered while

considering the charge sheet and in the statement it is

asserted that 04 gold Metals were incorporated by

mistake and it was a calculation error and clarification

letter was written. But, it is not forthcoming as to why

the Commissioner has given statement under 161

Cr.P.C, which is contrary to the letter issued by the

Commissioner earlier wherein there is an admission that

24 Gold Medals were in stock.

13. The defence counsel has placed reliance on

the letter issued by the Commissioner of Kannada and

Cultural Department dated 25.10.2013, where 20 Gold

Medals were shown in stock and 03 Medals were said to

have been distributed. But, there is no explanation in

this letter regarding 24 Gold Medals and what is base

for this clarification is not forth coming. Further, the

defence counsel has relied on the paragraphs pertaining

to 24 Gold Medals in stock in earlier letter. But, the

question would arise, at whose instance the said letter

came to be issued and whether this letter was

considered elaborately and after recalculation, whether

the Audit was done or not. All these questions to are

required to be answered by the Auditor and merely on

the basis of letter obtained under RTI regarding

dropping certain paragraphs, it cannot be straightaway

presumed that innocence of accused is proved or

established. Whether before dropping of certain

paragraphs, relevant factors were considered or not and

whether fresh audit report is submitted or not is

required to be considered. All these questions are

required to be answered by the Auditor for issuing

subsequent letter said to have been issued by the

Assistant Auditor of Accountant General's office. But,

without verifying the same, only on the basis of that

letter, straightaway discharging the accused appears to

be erroneous. The said document is taken as gospel

truth by the defence counsel. But, it is based on the

letter issued by the Commissioner and earlier also the

Commissioner has written a letter disclosing the stock.

What is transpired in between are required to be

explained by the defence. All these aspects are matter

of trial.

14. Further, while considering the discharge

application, only prosecution materials need to be

looked into. There is no dispute of the fact that 17 Gold

Medals were recovered from the custody of Accused

No.1 and 02 Gold Medals were recovered from the

custody of Accused No.4. Why these two accused were

keeping these Medals in stock differently is not at all

explained. All these Medals should have been kept in

chest or should have been deposited in the treasury and

lots of irregularities are forthcoming on the face of the

record. Even while handing over the charge, all the

Medals were not handed over and all these aspects are

required to be tested during the Course of trial. Hence,

without going to trial straightaway discharging the

accused on the basis of subsequent alleged clarification

is not just and proper.

15. It is argued that the complainant himself is

the Investigating Officer and hence, it is submitted that

entire investigation is vitiated. In this contest, reliance

is placed on the decision reported in (2010) 15 SCC

369 [State Vs. Rajangam]. But, that was pertaining

to NDPS Act and for recording seizure under NDPS Act,

certain guidelines have been laid down and personal

seizure is required to be carried in presence of

Gazetted Officer. Hence acquittal in the said case was

after trial and it was nothing to do with discharge

application. Further, in the instant case, the entire case

is based on documentary evidence and Audit Report.

Hence, all the questions are required to be answered by

the Auditor and the Investigating Officer has no role

except placing seized records before the Court. There is

no serious dispute regarding records also. Looking to

these facts and circumstances, the principles enunciated

in the above cited judgment will not come to the aid of

the respondents/accused in any way and no evidence is

placed to show that the accused were prejudiced in any

way. However, they can show this aspect during the

course of the trial and hence, at this juncture, the said

principles cannot be made applicable.

16. The learned Senior Counsel appearing for

respondents has placed reliance on a decision of the

Apex Court in Criminal Appeal No.2114/2017

(Arising out of SLP (Crl.) No.8279/2016) in Nitya

Dharmananda @ K.Lenin and Another Vs. Sri.

Gopal Sheelum Reddy and Another rendered on

07.12.2017, and invited the attention of the Court to

Para No.9 of the said judgment. In Para No.9, the Apex

Court has clearly held that, ordinarily the Court has to

proceed on the basis of material produced with the

charge sheet for dealing with the issue of charge and if

the court is satisfied that there is material of sterling

quality which has been withheld by the

investigator/prosecutor, the Court is not debarred from

summoning or relying upon the same even if such

document is not a part of the charge sheet'. There is no

dispute about this proposition of law. But, the

observation of the Apex Court is that, the material

sought to be produced for considering discharge

application needs to be of sterling quality. But, in the

instant case, inconsistent stands are taken by the

Commissioner and earlier the Commissioner himself has

disclosed the stock of 24 Gold Medals and subsequently

it was reduced to 19. Subsequently, the Assistant

Auditor of Accountant General's Office is said to have

given some letter. But, authenticity of letter is required

to be tested during trial. Hence, with due regards to

their Lordships, the principles enunciated in the above

cited judgment cannot be made applicable to the case in

hand and the documents relied at this juncture by

defence cannot be said to be of sterling quality and it

requires to be tested during trial by summoning the

author of document.

17. The learned Senior Counsel appearing for

respondents/accused has further placed reliance on the

decision reported in (2008) 10 SCC 394 [Yogesh @

Sachin Jagadish Joshi Vs. State of Maharashtra].

In the said decision, it is observed that, if two views are

equally possible and if the Judge is satisfied that

evidence produced gives rise to suspicion only, as

distinguished from grave suspicion, he would be fully

within his right to discharge the accused. But, in the

instant case, the Audit Report states missing of 06

Medals. Now the accused are relying on a clarification

letter issued by the Auditor. But, that is required to be

tested as to whether it was issued at the instance of the

accused or otherwise and hence, at this juncture, other

view cannot be drawn and as such, the said principles

cannot be made applicable to the facts and

circumstances of the case in hand.

18. The learned Senior Counsel has further

placed reliance on the decision in CBI, Hyderabad Vs.

K. Narayana Rao [(2012) 9 SCC 512], wherein it is

observed that, the Judicial Magistrate enquiring into the

case is not to act as mere Post Office and has to arrive

at conclusion whether the case before him is fit for

commitment of accused before the Sessions Court. He

has further placed reliance on the decision in Union

of India Vs. Prafulla Kumar Samal and Another

[(1979) SCC 4]. Again in the said decision, it is held

that, the Special Judge should not act as a trial Judge,

but should weigh evidence and form opinion only on the

limited question of whether a prima facie case made-

out. Except in the cases of grave suspicion which the

accused is unable to explain, he is empowered to

discharge the accused'. The facts being different the

said principles are not applicable to the facts and

circumstances of the case in hand.

19. The learned Senior Counsel has further

placed reliance on the decision in State of M.P.Vs.

Mohanlal Soni [(2000) 6 SCC 338]. But, in the said

case, Income-tax Returns which were collected during

the course of investigation itself are rejected and they

were part of the charge sheet. But, the facts and

circumstances of the present case are entirely different

and in the instant case, the document now said to have

been produced is entirely different and it is yet to be

tested. As such, the principles cannot be made

applicable to the facts and circumstances of the case in

hand.

20. Lastly, the learned Senior Counsel has placed

reliance on the decision in Dilawar Balu Kurane Vs.

State of Maharashtra [(2000) 2 SCC 135]. But, in

the said case also, the observations were regarding role

of the Judge and he cannot be a mouth piece of

prosecution, as held in the case of Narayana Rao's

case (supra) and the Judge has to sift and weigh the

evidence for limited purpose. First of all, the said

principles cannot be made applicable to the facts and

circumstances of the case in hand, as now the

document sought to be produced would not tally with

the charge sheet and secondly it was not tested and

opportunity is required to be given to the prosecution to

lead evidence and cross examine the person, who has

given this document and then only the Court is required

to assess the total evidence based on audit report.

Hence, the above said principles will not assist

accused/respondent in any way.

21. Looking to the facts and circumstances, the

approach of the learned Special Judge in discharging

the accused only on the basis of the subsequent letter

issued by the Assistant Auditor of Accountant General's

Office regarding deletion of certain paragraphs cannot

be a ground for discharge and it is required to be

weighed and tested only during the course of trial. The

learned Special Judge without considering any of these

aspects, in a mechanical way, discharged the accused

by accepting additional documents. The letter produced

by way of defence is not a part of charge sheet and the

said clarification letter is required to be tested during

trial and the accused are at liberty to prove this defence

during the course of trial to show their innocence.

Considering these facts and circumstances, the entire

approach of the learned Special Judge is erroneous and

without proper application of mind, he has discharged

the accused only on the basis of document/certification

letter produced by the accused. The prosecution is

required to be given an opportunity to substantiate their

case, as the charge is required to be framed and

accused are at liberty prove their defence during the

course of trial. Under such circumstances, the

impugned order of discharge passed by the learned

Special Judge is erroneous and does not sustain for

judicial scrutiny and it warrants interference by this

Court.

22. Considering the above facts and

circumstances, the revision petition needs to be allowed

and accordingly the point under consideration is

answered in the affirmative and accordingly, I proceed

to pass the following:

ORDER

i) The revision petition is allowed.

ii) The impugned order dated 16.11.2016 passed by the 23rd Additional Civil Judge and Sessions Judge and Special Judge, Bengaluru Urban District (CCH-

24) and Special Judge for Lokayuktha, for the offences under Section 13(1)(c), 13(1)(d) read with 13(2) of P.C. Act, in Spl.C.C. No.128/2014, is set aside and matter is restored to original file.

iii) The learned Special Judge is directed to frame charge against the accused and proceed with the trial.

iv) The respondents/accused are at liberty to substantiate their defence during the course of trial.

Sd/-

JUDGE

KGR* CT:NR