Karnataka High Court

Sri Vasudev Rama Nilekani vs The State Of Karnataka on 18 November, 2023

Bench: M.Nagaprasanna

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 18TH DAY OF NOVEMBER, 2023

                          BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

            CRIMINAL PETITION No.5919 OF 2022

BETWEEN:

SRI VASUDEV RAMA NILEKANI
S/O SH RAMA
AGED ABOUT 55 YEARS
R/AT SHAMBHAVI COLONY
3RD CROSS, GANDHINAGAR
DHARWAD KARNATAKA.

NOW R/AT
LAKSHMI RANGANATH SWAMY NILAYA
3RD PHASE, KHB COLONY
NEAR SADIK NAGAR
CHITRADURGA - 577 501.

                                            ... PETITIONER
(BY SRI MOHAMMED AKHIL, ADVOCATE AND
    SRI H.L.PRADEEP KUMAR, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY THE CENTRAL BUREAU OF INVESTIGATION
ANTI-CORRUPTION BRANCH
BENGALURU.

                                           ... RESPONDENT

(BY SRI P.PRASANNA KUMAR, SPL.PP)
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     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO SET ASIDE/QUASH THE IMPUGNED ORDER
DATED 25.04.2022 PASSED BY SPL.C.C.NO.565/2021 ON THE FILE
OF THE LXXXI ADDL. CITY CIVIL AND SESSIONS JUDGE
BANGALORE (CCH-82) IN I.A. UNDER SEC 239 OF CRPC FOR
DISCHARGE OF THE ACCUSED NO.20/PETITIONER FOR THE
OFFENCES ALLEGED AGAINST HIM AND ALLOW THE I.A. U/S 239
OF CRPC BY ALLOWING THE CRL.P.


     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 08.09.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-


                             ORDER

The petitioner is before this Court calling in question

proceedings in Special C.C.No.565 of 2021 pending before the

LXXXI Additional City Civil and Sessions Judge, Bengaluru and order

dated 25-04-2022 passed by the learned Sessions Judge declining

to discharge the petitioner from the array of accused as Accused

No.20 in the aforesaid proceedings.

2. Heard Sri. Mohammed Akhil, learned counsel appearing for

the petitioner and Sri P.Prasanna Kumar, learned Special Public

Prosecutor appearing for the respondent.

3. Facts, in brief, germane are as follows:-

The genesis of the petitioner getting embroiled in the

impugned crime is based upon a complaint which becomes a crime

in Crime No.135 of 2016. A complaint comes to be registered by

Smt. Mallavva, wife of Yogish Goudar, a member of the Zilla

Panchayat, Dharwad. It was the case of the complainant that her

husband, two days prior to the incident, received an anonymous

letter threatening that he would be murdered just like his elder

brother late Uday Goudar. The narration in the complaint is that her

husband had around 25 criminal cases pending against him and was

also listed as a rowdy in the Police Stations of Dharwad and

Navalgund. On 15-06-2016 her husband as a routine tries to enter

the Gym at which point in time, some unknown person assault him

with deadly weapon and commit his murder. On the said incident

the complaint comes to be registered on 15-06-2016 which

becomes a crime in Crime No.135 of 2016 against unknown persons

for offence punishable under Section 302 of the IPC. The Police

then conduct investigation and file a charge sheet against six

accused for offences punishable under Sections 143, 147, 148,

120B, 302, 201 r/w 149 of the IPC. The accused were alleged of

having known the deceased and being politically connected with the

rival parties. Accused No.1 therein had entered into certain

agreements for purchase of lands close to 26 acres. It is the

allegation that the deceased had threatened accused No.1 that in

the event he would purchase the lands he would kill accused No.1.

It is, therefore what was projected was a murder on account of a

property dispute. On the police filing charge sheet observing that it

was a property dispute between the deceased and the accused, one

Thungamma, mother and Mr. Gurunath Goudar, brother of the

deceased have knocked at the doors of this Court in Writ Petition

Nos.58183-58184 of 2017 seeking a mandamus directing

investigation to be transferred to the hands of the Central Bureau of

Investigation ('CBI'). This comes to be rejected by a co-ordinate

Bench in terms of its order dated 01-03-2019. This was challenged

before the Apex Court and the Apex Court rejected the special leave

petition. Thus ended the request for transfer of matter to the

hands of the CBI by the family of the deceased.

4. The Government of Karnataka on 06-09-2019 accords

approval for bringing in the CBI under Section 6 of the Delhi Special

Police Establishment Act, 1946 for conduct of further investigation

in Crime No.135 of 2016. The CBI then registers a separate FIR for

same offences afore-quoted in R.C.17(S)/2019 and begins conduct

of investigation. The CBI files three supplementary charge sheets

under Section 173(8) of the CrPC, two of which dragged the MLA

Mr. Vinay Kulkarni as accused No.15 and the third of which dragged

the petitioner into the web of crime. After the petitioner comes into

the web of crime by filing a supplemental charge sheet and

arraigning him as accused No.20, the petitioner files an application

under Section 239 of the CrPC seeking his discharge from the array

of accused. During the pendency of the said discharge application,

the very reference to the CBI was called in question before this

Court in Writ Petition Nos.51012 of 2019 and connected cases. A

Division Bench of this Court rejects the writ petitions which

challenged the reference to the CBI. After the said order was

passed by the Division Bench, the impugned order comes to be

passed rejecting the discharge application filed by the petitioner in

terms of the order dated 25-04-2022 in Special C.C.No.565 of

2021. Claiming to be aggrieved by the said order of rejection of

discharge, the petitioner is before this Court in the subject petition.

5. The learned counsel appearing for the petitioner would

urge the following contentions:

The petitioner is accused No.20. He is at the relevant point in

time was discharging his duties as Assistant Commissioner of Police

at Dharwad. He had no role to play with regard to the conduct of

investigation or signing of charge sheet to be filed before the

concerned Court. Those were the powers vested with the Deputy

Commissioner of Police, Law and Order, Dharwad. Entire

investigation was carried on by accused No.19. Merely because the

petitioner is the immediate senior to accused No.19, he has been

roped into these proceedings without any rhyme or reason. The

entire proceedings against the petitioner are without jurisdiction as

there is no sanction accorded under Section 197 of the CrPC as all

the acts alleged against the petitioner are in the course of discharge

of his official duties. For an allegation of filing of forged and false

documents it is necessary that the Court should comply protection

under the CrPC. He would contend that these issues have not been

looked into by the learned Sessions Judge while considering the

application for discharge and has summarily rejected the

application. He would seek discharge of the petitioner from the

array of accused on all the aforesaid grounds.

6. On the other hand, the learned Special Public Prosecutor

Sri P. Prasanna Kumar representing the Central Bureau of

Investigation would contend that there is specific role attributed to

the petitioner which only emerged while the CBI conducted the

investigation and filed their third supplementary charge sheet. It is

at that point in time it was noticed that there were glaring lacunae

in the performance of duties by the petitioner. The investigation

had revealed that local police had not arrested the actual accused

who had assaulted the deceased and brought before the petitioner.

The CCTV footage available was not scrutinized for the day of crime

so on and so forth. The learned counsel would seek to emphasize

that the allegation against the petitioner would touch upon Section

120B of the IPC which could be criminal conspiracy. For the

submission that no sanction has been accorded, the learned counsel

would submit that the CBI has obtained the sanction under Section

197 of the CrPC as well as under Section 19 of the Prevention of

Corruption Act, 1988 and the same is part of the record as

document No.77 of the charge sheet. Therefore, it is false to submit

that there is no sanction accorded to the case of the petitioner. He

would seek dismissal of the petition.

7. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record.

8. The afore-narrated facts that led the petitioner into the

web of crime are a matter of record. The petitioner was not an

accused at the time of registration of crime and was also not an

accused when charge sheet was filed by the State Police. The

petitioner comes into the picture as an accused when the third

supplementary charge sheet was filed by the CBI after the matter

being entrusted to the CBI. The further investigation conducted by

the CBI is said to have revealed all the lapses of investigation

conducted by the State Police who had not taken note of several

facts and not arrested persons actually involved in the alleged

incident of crime. The allegations against the petitioner, in

particular, as could be found in the charge sheet filed by the CBI

are that, accused No.19, the Inspector of Police and the Station

House Officer, Dharwad recorded the arrest of accused Nos. 1 to 6

who had surrendered before the petitioner. This was without

conduct of investigation or comparing the accused persons to the

persons who had surrendered with the help of CCTV footage. The

petitioner/accused No.20 had instructed his subordinate officials to

bring one wooden stick and one iron rod and further instructions

were issued to smear the blood of the deceased brought from the

mortuary over the weapons for the purpose of sending to forensic

examination. Therefore, this was the evidence that was built up

later. The petitioner is alleged to have been directly involved in the

said incident. The investigation had further revealed that the

petitioner had found a black colour bag with a knife in the

compound of a nearby building while inspecting the scene of crime

and had sent the same to the Police Station where it had been

tampered with, as the reference is no such bag was seized during

the course of investigation. CCTV footage clearly indicated accused

No.11 carrying a black bag. The petitioner had supervised the

investigation conducted by accused No.19 only with an intention to

save the real accused for extraneous considerations. Extraneous

consideration would mean alleged receipt of illegal gratification, as

CWs-7, 8, 103, 105 and 109 have all deposed that the petitioner

had demanded illegal gratification and was handed over such

money on his demand. These are the facts that led the petitioner as

accused No.20 into Special C.C.No.565 of 2021.

9. If these are the facts which are required to be proved in a

full blown trial, it is ununderstandable as to how this Court at this

juncture would interfere with the findings, interdict the trial and

obliterate the crime against the petitioner. These are in the realm of

seriously disputed questions of fact which would require a full blown

trial. Reference being made to the judgment of the Apex Court in

the case of KAPTAN SINGH v. STATE OF UTTAR PRADESH1 in

(2021) 9 SCC 35

the circumstances becomes apposite. In the said judgment it is

held as follows:

"9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation.

Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents

of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.

9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1 SCC (Cri) 173] , referred to hereinabove.

9.3. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27- 10-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.

11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as

mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.

12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

13. Even the High Court has erred in observing that original complaint has no locus. The aforesaid observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court. However, when it is specifically stated in the FIR that Munni Devi has executed the power of attorney and thereafter the investigating officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial.

14. In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and

proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed."

(Emphasis supplied)

In the light of the facts narrated hereinabove which are too intricate

to decipher in a petition under Section 482 of the CrPC, interference

at this stage is unwarranted. The contention of the learned counsel

for the petitioner that there is no finding even rendered by the

concerned Court while considering the discharge application, is

contrary to the record. The concerned Court in several paragraphs

considers the evidence against the petitioner and rejects the

discharge application. Though the Court answering the discharge

application cannot act as a mere post office, the Court has not

acted as a post office in the instant case. The reasons rendered by

the concerned Court are cogent to reject the application seeking