Shri C N Patil vs The State Of Karnataka
2023 Latest Caselaw 7756 Kant

                                            -1-
                                                  NC: 2023:KHC-D:13439
                                                   CRL.P No. 102627 of 2023




                IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                   DATED THIS THE 17TH DAY OF NOVEMBER, 2023

                                        BEFORE
                      THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                       CRIMINAL PETITION NO. 102627 OF 2023


               BETWEEN:



               SHRI C.N.PATIL
               AGE. 37 YEARS,
               OCC. COMMERCIAL TAX INSPECTOR,
               OFFICE OF THE JOINT COMMISSIONER
               OF COMMERCIAL TAXES (ENFORCEMENT),
               NORTH ZONE, BELAGAVI - 590 001
               TQ / DIST.: BELAGAVI.

                                                              ...PETITIONER

               (BY SRI. A.S.PATIL, ADVOCATE)

               AND:
Digitally signed
by PADMAVATHI
BK
Location: HIGH THE STATE OF KARNATAKA
COURT OF
KARNATAKA        BY DEPUTY SUPERINTENDENT,
               KARNATAKA LOKAYUKTA POLICE STATION,
               BELAGAVI,
               NOW REPRESENTED BY SPECIAL PUBLIC
               PROSECUTOR
               HIGH COURT OF KARNATAKA,
               DHARWAD - 580 008.

                                                             ...RESPONDENT

               (BY SRI.ANIL KALE, SPL.PP)
                                 -2-
                                      NC: 2023:KHC-D:13439
                                       CRL.P No. 102627 of 2023




     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE COMPLAINT FILED BY
THE RESPONDENT AS PER ANNEXURE-A, THE IMPUGNED FIR
AS PER ANNEXURE-B BY LOKAYUKTA POLICE STATION,
BELAGAVI IN CRIME NO.04/2023 PENDING ON THE FILE OF IV
ADDL. DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE
(PCA) AT BELAGAVI FOR THE OFFENCES P/U/S 7(c) OF
PREVENTION OF CORRUPTION ACT, 1988 (AMENDMENT ACT-
2018) AGAINST THE PETITIONER/ACCUSED.

    THIS CRIMINAL PETITION, COMING ON FOR FURTHER
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:


                               ORDER

The petitioner is before this Court calling in question a

complaint filed by the respondent in Crime No.4/2023, pending

before the IV Additional District and Sessions Judge & Special

Judge (PCA), Belagavi, for offence punishable under Section

7(c) of the Prevention of Corruption Act, 1988 (Amendment Act

2018) ('the Act' for short).

2. Heard Sri A.S.Patil, learned counsel for petitioner and

Sri Anil Kale, learned Special Public Prosecutor for the

respondent.

3. The respondent is the complainant and a complaint

comes to be registered on 27.03.2023 before the Karnataka

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

Lokayuktha Police Station. The complaint then becomes a FIR

in Crime No.4/2023 on 30.03.2023. At the relevant point in

time, the petitioner was working as Commercial Tax Inspector

in the Office of the Joint Commissioner, Commercial Taxes

(Enforcement0 North Zone, Belagavi. The allegation in the

complaint is that, a Television channel by name Asianet

Suvarna News conducts a sting operation under the title 'Rana

Rochak Operation', of the conversation held between the

petitioner and the transporters of the Gutka products pertaining

to demanding of monthly amount from the said transporters;

the manner to evade commercial taxes for transportation; set

all officers at entire district; contacting one person by name

Abu through phone and he would be the person to collect

monthly amount. On the broadcast of the aforesaid

conversation / allegation against the petitioner on the television

on 25.11.2022, the Deputy Superintendent of Police filed a

complaint on 27.03.2023 and the Lokayuktha Police registered

the FIR in Crime No.4/2023 on 30.03.2023, after about four

months of the telecast. It is the registration of crime that

drives the petitioner to this Court in the subject petition.

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

4. The issue in the lis need not detain this Court for long

or delve deep into the matter as it stands covered by the order

passed by this Court in W.P.NO.15582 OF 2022 AND

CONNECTED MATTERS DISPOSED ON 06.10.2023. This

Court has held as follows:

"ISSUE NO.2:

(ii) Whether compliance with Section 17A of the Prevention of Corruption Act is imperative to the facts of the cases at hand owing to its importance?

24. The marrow of the submissions of all the learned senior counsel representing the petitioners lied in non-compliance of Section 17A of the Act. Therefore, I deem it appropriate to notice Section 17A of the Act, its interpretation and applicability to the facts of the cases at hand. Section 17A of the Prevention of Corruption Act, 1988 was brought into force on 26.07.2018. Section 17A is extracted hereunder for the purpose of quick reference:

                    "17-A. Enquiry     or     inquiry      or
           investigation of offences       relatable       to

recommendations made or decision taken by public servant in discharge of official functions or duties.--(1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval -

(a) in the case of a person who is or was employed, at the time when the offence was

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

alleged to have been committed, in connection with the affairs of the Union, of that Government;

(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:

Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month."

In terms of the above extracted provision of law introduced by an amendment, no Police Officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the Prevention of Corruption Act, where the alleged offence is relatable to any recommendation made or decisions taken by such public servant in discharge of his official functions or duties without the previous approval of the officer or authority concerned.

25. Clause (a) thereof provides that in case of public servant who is or was employed in connection with the affairs of the Union at the time when the offence alleged to have been committed, the previous approval of the Central Government shall be obtained. Clause (b) likewise provides that in case of a public servant who is or was an employee in connection with the affairs of the State at the time when the offence was alleged to have

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

been committee, the approval of the State Government shall be obtained before proceeding. Clause (c) provides that in case of any other person who comes within the definition of public servant, previous approval of the Competent Authority to remove him from office at the time when the offence alleged to have been committee should be obtained. The narrative hereinabove cannot but indicate that the object of the Section was to protect public servants from malicious, vexatious or baseless prosecution. However, if enquiry into the circumstances in which the alleged administrative or official act was done by the public servant or where malfeasance committed by the public servant which would involve an element of dishonesty or impropriety is to be proceeded against, the approval of the Competent Authority is required.

26. In the considered view of this Court, Section 17A and its purport must be observed with complete strictness bearing in mind public interest and protection available to such officers against whom offences are alleged, failing which, sometimes result in malicious prosecution. Section 17A is clearly a filter that the prosecution must pass in order to discourage or avoid vexatious prosecution, though it cannot be considered as a protective shield for the guilty, but a safeguard for the innocent.

27. The provision (supra) was also considered by the Apex Court in the case of YESHWANTH SINHA v. CENTRAL BUREAU OF INVESTIGATION1. The Apex Court though did not consider as to how the previous approval of the Competent Authority has to be taken, but considered the amendment and its importance in the following paragraphs:

"117. In terms of Section 17-A, no police officer is permitted to conduct any enquiry or inquiry or conduct investigation into any offence done by a public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous

(2020) 2 SCC 338

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

approval, inter alia, of the authority competent to remove the public servant from his office at the time when the offence was alleged to have been committed. In respect of the public servant, who is involved in this case, it is clause (c), which is applicable. Unless, therefore, there is previous approval, there could be neither inquiry or enquiry or investigation. It is in this context apposite to notice that the complaint, which has been filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018, moved before the first respondent CBI, is done after Section 17-A was inserted. The complaint is dated 4.10.2018. Para 5 sets out the relief which is sought in the complaint which is to register an FIR under various provisions. Paras 6 and 7 of the complaint are relevant in the context of Section 17-A, which read as follows:

"6. We are also aware that recently, Section 17-A of the Act has been brought in by way of an amendment to introduce the requirement of prior permission of the Government for investigation or inquiry under the Prevention of Corruption Act.

7. We are also aware that this will place you in the peculiar situation, of having to ask the accused himself, for permission to investigate a case against him. We realise that your hands are tied in this matter, but we request you to at least take the first step, of seeking permission of the Government under Section 17-A of the Prevention of Corruption Act for investigating this offence and under which, "the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month".

(emphasis supplied)

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

118. Therefore, the petitioners have filed the complaint fully knowing that Section 17-A constituted a bar to any inquiry or enquiry or investigation unless there was previous approval.

In fact, a request is made to at least take the first step of seeking permission under Section 17-A of the 2018 Act. Writ Petition (Criminal) No. 298 of 2018 was filed on 24.10.2018 and the complaint is based on non- registration of the FIR. There is no challenge to Section 17-A. Under the law, as it stood, both on the date of filing the petition and even as of today, Section 17-A continues to be on the statute book and it constitutes a bar to any inquiry or enquiry or investigation. The petitioners themselves, in the complaint, request to seek approval in terms of Section 17-A but when it comes to the relief sought in the writ petition, there was no relief claimed in this behalf.

119. Even proceeding on the basis that on petitioners' complaint, an FIR must be registered as it purports to disclose cognizable offences and the Court must so direct, will it not be a futile exercise having regard to section 17-A. I am, therefore, of the view that though otherwise the petitioners in Writ Petition (Criminal) No. 298 of 2018 may have made out a case, having regard to the law actually laid down in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1: (2014) 1 SCC (Cri) 524], and more importantly, Section 17-A of the Prevention of Corruption Act, in a review petition, the petitioners cannot succeed. However, it is my view that the judgment sought to be reviewed, would not stand in the way of the first respondent in Writ Petition (Criminal) No. 298 of 2018 from taking action on Ext. P-1, complaint in accordance with law and subject to first respondent obtaining previous approval under Section 17-A of the Prevention of Corruption Act."

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

The Apex Court has considered the importance of previous approval of the Competent Authority in the afore-extracted judgment.

28. Section 17A casts an obligation of application of mind on the part of the Competent Authority in three situations. The Section makes it clear that no officer shall conduct any enquiry or inquiry or investigation without previous approval. Therefore, the approving authority will have to look into the materials, apply its mind in all the three contingencies i.e., enquiry or inquiry or investigation. Though, 'enquiry' and 'inquiry' are often used interchangeably, there exists a difference between the two. Etymologically, the source of both enquiry and inquiry could be the same as 'en' is derived from French and 'in' is from Latin. Inquiry has a formal and official ring to it. Enquiry is informal and can be unofficial. Enquiry could even mean, to question; Inquiry is a formal investigation; investigation is a search. Therefore, the act casts an obligation of application of mind upon the authority to consider whether approval is sought for an enquiry, inquiry or an investigation. It becomes imperative for the authority to apply its mind to what is brought before it, as application of mind is the bedrock of any order that an authority passes, failing which, it would be contrary to the principles of natural justice, as non- application of mind is in itself violative of principles of natural justice.

29. Whether Section 17A of the Act would be applicable to the facts of the case at hand is required to be examined. The submission of the learned counsel appearing for the then Anti Corruption Bureau, now the Lokayukta is that, the proviso to Section 17A directs that no such approval would be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or any other person. Section 17A cannot be read in isolation and it should be read qua the offences that are alleged against these petitioners. They are the ones

- 10 -

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

punishable under Section 7 of the Act. Section 7(a), (b) and (c) of the Act reads as follows:

"7. Offence relating to public servant being bribed.--Any public servant who,--

(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant;

(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or

(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person,

shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine."

Section 7(a), (b) or (c) mandates that one who obtains or accepts or attempts to obtain from any person an undue advantage, with an intention to perform or forbear from performing any public duty would be an offence. The soul of Section 7 is therefore, demand and acceptance. The concept of demand and acceptance being sine qua non for any proceeding to be initiated under Section 7 of the Act need not detain this Court for any further interpretation as the Apex Court in plethora of judgments

- 11 -

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

has considered this aspect and has rendered its imprimatur to the said concept. Reference being made to the judgment of the Apex Court in the case of NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI)2 in the circumstances becomes apposite. The Apex Court has held as follows:

"LEGAL POSITION

8. Before we analyze the evidence, we must note that we are dealing with Sections 7 and 13 of the PC Act as they stood prior to the amendment made by the Act 16 of 2018 with effect from 26th July 2018. We are referring to Sections 7 and 13 as they stood on the date of commission of the offence. Section 7, as existed at the relevant time, reads thus:

"7. Public servant taking gratification other than legal remuneration in respect of an official act.--

Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years

2023 SCC OnLine SC 280

- 12 -

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

but which may extend to seven years and shall also be liable to fine.

Explanations.-

(a) "Expecting to be a public servant"- If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.

(c) "Legal remuneration"- The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

(e) Where a public servant induces a person erroneously believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section."

9. Section 13(1)(d), as existed at the relevant time, reads thus:

"13. Criminal misconduct by a public servant.--

(1) A public servant is said to commit the offence of criminal misconduct,-

(a) ....................................

- 13 -

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

(b) ....................................

(c) ....................................

(d) if he,-

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii)while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

(e) ........................................"

10. The demand for gratification and the acceptance thereof are sine qua non for the offence punishable under Section 7 of the PC Act.

11. The Constitution Bench was called upon to decide the question which we have quoted earlier. In paragraph 74, the conclusions of the Constitution have been summarised, which read thus:

"74. What emerges from the aforesaid discussion is summarised as under:

(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.

(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter

- 14 -

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there

- 15 -

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and

(i) and (ii) of the Act.

(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section

- 16 -

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

20 does not apply to Section 13(1)(d)(i) and (ii) of the Act.

(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point

(e) as the former is a mandatory presumption while the latter is discretionary in nature."

(emphasis added)

12. The referred question was answered in paragraph 76 of the aforesaid judgment, which reads thus:

"76. Accordingly, the question referred for consideration of this Constitution Bench is answered as under:

In the absence of evidence of the complainant (direct/primary, oral/documentary evidence), it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution."

(emphasis added)

13. Even the issue of presumption under Section 20 of the PC Act has been answered by the Constitution Bench by holding that only on proof of the facts in issue, Section 20 mandates the Court to raise a presumption that illegal gratification was for the purpose of motive or reward as mentioned in Section 7 (as it existed prior to the amendment of 2018). In fact, the Constitution Bench has approved two decisions by the benches of three Hon'ble Judges in the cases of B. Jayaraj and P. Satyanarayana Murthy. There is another decision of a three Judges' bench in the case of N.

Vijayakumar v. State of Tamil Nadu, which follows the view taken in the cases of B.

- 17 -

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

Jayaraj and P. Satyanarayana Murthy. In paragraph 9 of the decision in the case of B. Jayaraj, this Court has dealt with the presumption under Section 20 of the PC Act. In paragraph 9, this Court held thus:

"9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."

(emphasis added)

14. The presumption under Section 20 can be invoked only when the two basic facts required to be proved under Section 7, are proved. The said two basic facts are 'demand' and 'acceptance' of gratification.

The presumption under Section 20 is that unless the contrary is proved, the acceptance of gratification shall be presumed to be for a motive or reward, as contemplated by Section 7. It means that once the basic facts of the demand of illegal gratification and acceptance thereof are proved, unless the contrary are proved, the Court will have to presume that the gratification was demanded and accepted as a motive or reward as contemplated by Section 7. However, this presumption is rebuttable. Even on the basis of the preponderance of probability, the accused can rebut the presumption.

- 18 -

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

15. In the case of N. Vijayakumar, another bench of three Hon'ble Judges dealt with the issue of presumption under Section 20 and the degree of proof required to establish the offences punishable under Section 7 and clauses

(i) and (ii) Section 13(1)(d) read with Section 13(2) of PC Act. In paragraph 26, the bench held thus:

"26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI [C.M.

      Girish     Babu v. CBI, (2009)     3    SCC
      779 : (2009) 2 SCC (Cri) 1] and in B.
      Jayaraj v. State         of         A.P. [B.

Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543]. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1) (d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court."

(emphasis added)

- 19 -

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

16. Thus, the demand for gratification and its acceptance must be proved beyond a reasonable doubt.

17. Section 7, as existed prior to 26th July 2018, was different from the present Section 7. The unamended Section 7 which is applicable in the present case, specifically refers to "any gratification". The substituted Section 7 does not use the word "gratification", but it uses a wider term "undue advantage". When the allegation is of demand of gratification and acceptance thereof by the accused, it must be as a motive or reward for doing or forbearing to do any official act. The fact that the demand and acceptance of gratification were for motive or reward as provided in Section 7 can be proved by invoking the presumption under Section 20 provided the basic allegations of the demand and acceptance are proved. In this case, we are also concerned with the offence punishable under clauses (i) and (ii) Section 13(1)(d) which is punishable under Section 13(2) of the PC Act. Clause (d) of sub-section (1) of Section 13, which existed on the statute book prior to the amendment of 26th July 2018, has been quoted earlier. On a plain reading of clauses (i) and (ii) of Section 13(1)(d), it is apparent that proof of acceptance of illegal gratification will be necessary to prove the offences under clauses (i) and (ii) of Section 13(1)(d). In view of what is laid down by the Constitution Bench, in a given case, the demand and acceptance of illegal gratification by a public servant can be proved by circumstantial evidence in the absence of direct oral or documentary evidence. While answering the referred question, the Constitution Bench has observed that it is permissible to draw an inferential deduction of culpability and/or guilt of the public servant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The conclusion is that in absence of direct evidence, the demand and/or

- 20 -

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

acceptance can always be proved by other evidence such as circumstantial evidence.

18. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. If we come to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidence to prove the demand."

(Emphasis supplied)

The Apex Court was clarifying the judgment rendered by the 5 Judge Bench in NEERAJ DUTTA v. STATE3 and the Apex Court holds that the basic concept of demand and acceptance has not been diluted and that is the soul of the offence under Section 7 of the Act. If the facts obtaining in the case at hand, as narrated above, are noticed on the bedrock of the provision and its interpretation by the Apex Court in the aforesaid judgment, what would unmistakably emerge is that there is ostensible lack of demand of money, but the presence of alleged acceptance pervades through the allegations

2022 SCC OnLine SC 1724

- 21 -

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

against the petitioners particularly to that officers working in the Commercial Tax Department.

30. The proviso to Section 17A will have to be read in juxtaposition with Section 7. If so done, what would unmistakably emerge is, in cases where the officers of the Commercial Tax Department have been the subject matter of issues in the lis, they would require prior approval for registration of crime as they are not the ones wherein the officers have demanded, accepted and caught accepting such bribe or arrested on such ingredients. The allegations are that they have accepted bribe at the point in time when the sting operation recording is made. Therefore, it is a case where there is no demand, but only acceptance. It cannot be equated with a trap where the public servant had already demanded or demanding and accepting at the time of recording in the sting operation. Therefore, those cases which involve acceptance of money during a sting operation or forcefully loading into the hands of those officers would come within the ambit of protection under Section 17A of the Act. On both the counts that the allegations against the petitioners/officers of the Commercial Tax Department do not meet the very soul of Section 7 i.e., the demand and acceptance, as also, their being no approval for registration of the crime as obtaining under Section 17A, the crimes registered in those cases would necessarily meet its obliteration.

31. It would have been an altogether different circumstance and judicial scrutiny would have been differently done if there had been an order obtaining approval from the hands of the Competent Authority to register the crime, as obtaining under Section 17A of the Act. The case at hand is one which has no approval at all, so to say there is no approval sought from the hands of the Competent Authority and the defence put up is that it is not required. The cases at hand are not cases of trap. Therefore, on the act of no approval being sought or granted by the Competent Authority prior to registration of the crime, the crimes registered in those cases are necessarily to be obliterated.

- 22 -

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

32. The other batch of cases are the ones where sting operation reveals acceptance of bribe from the drivers and owners of lorries for permitting the lorries into the City during the time when they are not to be permitted at the places where they are not supposed to be permitted. In these cases, there is deemed, demand and acceptance of bribe for permitting lorries carrying huge granite slabs in an area where they are not supposed to ply, and during prohibitory hours. This permission is given on the strength of acceptance of money from the owners or drivers of lorries. This is caught on camera. This would undoubtedly mean that it was a positive sting operation, as the public servant or Traffic Police Inspector demands money, for doing a favour of letting the lorries and in exchange of such undue favour accepts money. The sting operation has thus caught the officers accepting money. It is undoubtedly akin to a trap proceeding or even on a higher pedestal. Therefore, rigour or protection under Section 17A of the Act would not be applicable in cases of public servants accepting money for permitting violations of traffic.

33. What is alleged is letting of vehicles which carry granite blocks in the peak, and prohibitory hours into the city. This has resulted in clogging vehicular traffic in the city, a menace in the city to-day. Therefore, such cases where Traffic Police indulge in accepting of bribe for movement of vehicles which are clearly prohibited is an unpardonable act. The rigour of Section 17A cannot be pressed into service for such acts, as it cannot become a cloak for protection of such illicit acts. The cases would clearly mean that they have demanded money, accepted bribe and executed the work immediately on acceptance of such bribe. These are cases where the Government/prosecuting agencies will have to deal with an iron hand.

- 23 -

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

34. In the light of what is observed hereinabove, the division is clearly two fold. If a public servant is entrapped for his ugly undertakings, it would amount to violation of right to privacy, as he has not demanded on his own volition, but he is alleged of accepting money which is caught on the camera during the sting operation. It is, therefore, the offence under Section 7(a), (b) and

(c) is laid. These are cases where prior approval under Section 17A would be imperative. The other set of cases, as observed hereinabove, where there is due demand and acceptance, and immediate favour is done, such cases would not require approval under Section 17A of the Act, as its rigour is protected under the proviso. Therefore, the issue is answered holding that crimes registered on account of either acceptance of hush money by these officers of the Commercial Tax Department cannot be permitted to be continued as there is no prior approval granted; and those crimes registered against Traffic Police Inspectors, in any of these cases, are necessarily to be permitted to be continued. The issue is answered accordingly."

In the light of the afore-quoted order of this Court, which

covers the issue on all its fours and for the reasons recorded in

the aforesaid W.P.Nos.15582/2022 and connected matters

(supra), the subject petition also deserve to succeed in the very

same terms that is ordered in the aforesaid writ petitions and

granting the very same relief.

- 24 -

NC: 2023:KHC-D:13439 CRL.P No. 102627 of 2023

5. For the aforesaid reasons, I pass the following:

ORDER

(i) The Criminal Petition is allowed.

(ii) The crime registered against the petitioner in Crime No.4 of 2023, pending before the IV Additional District and Sessions Judge & Special Judge (PCA) at Belagavi, stands obliterated.

Consequently, I.A.No.1/2023 stands disposed, as it does

not survive for consideration.

Sd/-

JUDGE

NVJ