Karnataka High Court

Sri Sadashiva Rayappa Maralingannavar ... vs The State Of Karnataka on 25 July, 2024

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                                                      NC: 2024:KHC-D:10539
                                                       CRL.P No. 100325 of 2023




                   IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                           DATED THIS THE 25TH DAY OF JULY, 2024
                                              BEFORE
                              THE HON'BLE MR JUSTICE S.RACHAIAH
                        CRIMINAL PETITION NO. 100325 OF 2023 (482)
                BETWEEN:

                SRI. SADASHIVA RAYAPPA MARALINGANNAVAR,
                S/O. LATE SRI. RAYAPPA MARALINGANNAVAR,
                AGED ABOUT 53 YEARS,
                OCC: SENIOR MOTOR VEHICLE INSPECTOR,
                REGIONAL TRANSPORT OFFICE, NAVANAGARA,
                BAGALKOT DISTRICT- 587103,
                RESIDENT OF RENUKA NIVASA,
                6TH CROSS, SWAMY VIVEKANANDA NAGARA,
                GOKAK -591307.
                                                                       ...PETITIONER
                (BY SRI MURTHY D.NAIK, SENIOR COUNSEL FOR
                 SRI SHIVASAI M.PATIL, ADVOCATE)

                AND:

                THE STATE OF KARNATAKA
                THROUGH LOKAYUKTA POLICE,
                REPTD. BY THE STATE SPECIAL PUBLIC PROSECUTOR,
                HIGH COURT OF KARNATAKA,
CHANDRASHEKAR
LAXMAN          DHARWAD 580011.
KATTIMANI
                                                             ...RESPONDENTS

                (BY SRI SANTOSH B.MALAGOUDAR, ADVOCATE)
HIGH
COURT OF
KARNATAKA              THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
                SEEKING TO QUASH THE ENTIRE PROCEEDINGS IN ACB PS CRIME
                NO.14/2021 (CRIME NO.14/2021 ACB PS BELAGAVI) REGISTERED
                FOR THE OFFENCES PUNISHABLE U/SEC. 13(1)(b) R/W SEC. 13(2)
                OF PREVENTION OF CORRUPTION ACT, 1988 (AMENDED 2018)
                PENDING BEFORE THE LEARNED IV ADDL. DISTRICT AND SESSIONS
                JUDGE   AND    SPL.   JUDGE   (PCA)   AT   BELAGAVI   AGAINST   THE
                PETITIONER/ACCUSED PRODUCED AT ANNEXURE-B.
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                                      NC: 2024:KHC-D:10539
                                         CRL.P No. 100325 of 2023




      THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 22.06.2024, COMING FOR PRONOUNCEMENT THIS DAY,
THIS COURT MADE THE FOLLOWING:

                               ORDER

Heard Sri Murthy D.Naik, learned senior counsel

appearing on behalf of Sri Shivasai M.Patil, learned counsel for

the petitioner and Sri Santosh B.Malagoudar, learned Special

Public Prosecutor for the respondent/State.

2. The petition is filed by the petitioner to quash the

FIR in Crime No.14/2021 for the offences punishable under

Section 13(1)(b) r/w Section 13(2) of the Prevention of

Corruption Act, 1988 assigning the reason that the registration

of FIR is contrary to the law laid down by the Hon'ble Supreme

Court and also submitted that the FIR filed against the

government servant without conducting the preliminary enquiry

in respect of disproportionate assets is held to be illegal and it

should be vitiated.

3. Brief facts of the case are as under:

The petitioner was appointed as Junior Training Officer in

the Department of Employment and Training Labour in the year

2003. Subsequently, he became Motor Vehicle Inspector in the

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Department of Transport in the year 2009. The petitioner was

working as a Senior Motor Vehicle Inspector in the Office of the

Assistant Regional Transport at Gokak, Belagavi District. The

Police Inspector, the then ACB, Belagavi collected an

information confidentially regarding acquired assets

disproportionate to his known source of income and also based

on the source report, conducted raid and seized moveable and

immovable properties and opined that the petitioner had

disproportionate assets more than his known source of income.

Hence, they are conducting investigation. At this stage, the

petitioner filed this petition to quash the FIR.

4. Sri Murthy D.Naik, learned senior counsel appearing

on behalf of Sri Shivasai M.Patil, learned counsel for the

petitioner submitted that collecting the evidence before

registration of FIR is contrary to law laid down by the Hon'ble

Supreme Court in the case of Lalita Kumari v/S Government

of Uttar Pradesh and others reported in (2014) 2 SCC 1

and it is further submitted that before registration of the FIR,

the person who has been entrusted the work of investigation

has to secure the source report and also conduct preliminary

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enquiry to arrive at a conclusion as to whether the delinquent

government official had such disproportionate assets or not.

5. The learned senior counsel further relied on the

judgment of the Hon'ble Supreme Court in the case of

Charansingh V/s State of Maharashtra and others

reported in (2021) 5 SCC 469. The Hon'ble Supreme Court

held in the said case that during enquiry at pre-registration of

FIR stage, if the person satisfies on production of materials

produced relating to his known source of income on the assets,

in that case, no FIR will be lodged. Further, he relied on the

judgment of the Hon'ble Supreme Court in the case of

P.Sirajuddin V/s State of Madras reported in AIR 1971 SC

520, the Hon'ble Supreme Court in this case held that need for

preliminary enquiry before prosecuting against public

servants/accused in a corruption or misconduct, it is stated that

when such enquiry is to be held for the purpose of finding out

whether criminal proceedings are to be vitiated and the scope

thereof must be limited to the examination of the person who

have knowledge of the affairs of the person against whom the

allegations are made and documents bearing on the same to

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find out whether there is a prima facie evidence and guilt of the

officer.

6. It is further submitted that Section 482 of Cr.P.C. is

more or less parimateria to Article 226 of the Constitution of

India, the intention and object of enacting both these provision

and article only to restore the rights of the parties and to save

the inherent powers of the constitutional Courts. It is further

submitted that the documents produced along with the petition

would indicate that the petitioner herein has not committed any

offence or he was not having any disproportionate assets to his

known source of income. Therefore, the FIR needs to be

quashed. Making such submissions, the learned senior counsel

prays to allow the petition and quash the FIR.

7. Per contra, Sri Santosh B.Malagoudar, learned

Special Public Prosecutor vehemently opposed the said

submissions and further, he submitted that the preliminary

enquiry before registration of FIR is not mandatory and it is

only directory. If the police officer satisfies himself that he can

proceed with the source report, that is enough to restore the

FIR. It is further submitted that prima facie there are materials

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to proceed against the petitioner. If the petitioner has any

documents to equate the disproportionate assets, he may

produce the said documents before the Investigating Officer

and he can get a clean chit in respect of the alleged

disproportionate assets. Without producing any documents

before the authority, he cannot produce such documents before

this Court and asked the Court to scrutinize the said

documents. Such procedure which appears to be unnatural and

erroneous. Therefore, the petition deserves to be dismissed.

8. To substantiate his submission, the learned Special

Public Prosecutor relied on the judgment of the Hon'ble

Supreme Court in the case of State of Telangana V/s

Managipet alias Mangipet Surveshwar Reddy reported in

(2019) 19 SCC 87 and also Central Bureau of

Investigation (CBI) and another V/s Thommandru

Hannah Vijayalakshmi alias T.H.Vijayalakshmi and

another reported in AIR 2021 SC 5041.

9. After having heard the learned counsel for the

respective parties and also perused the averments of the

complaint, it appears from the record that the petitioner had

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joined the service as Junior Training Officer in the Department

of Employment and Training in the year 2003 and

subsequently, he acquired different posts and worked at

different places. The respondent-police have collected

information about the known source of income of the petitioner.

According to them, the petitioner had 120.40% of total worth

beyond his known source of income.

10. The learned senior counsel mainly contended that

before registration of the FIR, the preliminary enquiry in

respect of disproportionate assets to the known source of

income is very much essential and contrary to the said settled

principle, registration of FIR is required to be vitiated. In this

regard, it is necessary at this stage to refer the judgment of the

Hon'ble Supreme Court in the case of T.H.Vijayalakshmi

stated supra. The Hon'ble Supreme Court in Paragraph No.32

and 33 observed as follows:

"32. In view of the above discussion, we hold that since the institution of a Preliminary Enquiry in cases of corruption is not made mandatory before the registration of an FIR under the CrPC, PC Act or even the CBI Manual, for this Court to issue a direction to that affect will be tantamount to stepping into the legislative domain. Hence, we hold that in case the information received by the CBI, through a complaint or a "source information" under Chapter 8, discloses

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the commission of a cognizable offence, it can directly register a Regular Case instead of conducting a Preliminary Enquiry, where the officer is satisfied that the information discloses the commission of a cognizable offence.

33. The above formulation does not take away from the value of conducting a Preliminary Enquiry in an appropriate case. This has been acknowledged by the decisions of this Court in P Sirajuddin (supra), Lalita Kumari (supra) and Charansingh (supra). Even in Vinod Dua (supra), this Court noted that "[a]s a matter of fact, the accepted norm - be it in the form of CBI Manual or like instruments is to insist on a preliminary inquiry". The registration of a Regular Case can have disastrous consequences for the career of an officer, if the allegations ultimately turn out to be false. In a Preliminary Enquiry, the CBI is allowed access to documentary records and speak to persons just as they would in an investigation, which entails that information gathered can be used at the investigation stage as well. Hence, conducting a Preliminary Enquiry would not take away from the ultimate goal of prosecuting accused persons in a timely manner. However, we once again clarify that if the CBI chooses not to hold a Preliminary Enquiry, the accused cannot demand it as a matter of right. As clarified by this Court in Managipet (supra), the purpose of Lalita Kumari (supra) noting that a Preliminary Enquiry is valuable in corruption cases was not to vest a right in the accused but to ensure that there is no abuse of the process of law in order to target public servants.

11. On careful reading of the dictum of the Hon'ble

Supreme Court, it is clarified that 'if the authority chooses not

to hold preliminary enquiry, the accused cannot demand it as a

matter of right.' Having considered the dictum of the Hon'ble

Supreme Court, I am of the considered opinion that the

contention raised by the learned senior counsel that the

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preliminary enquiry is necessary before registration of FIR held

to be untenable and loses its significance.

12. The learned senior counsel produced several

documents before this Court to satisfy this Court that those

documents were not considered by ACB before concluding that

the petitioner had disproportionate assets of 120.40%. Can the

Courts are required to consider the documents would be the

moot question which needs to be answered. Before answering

to the said question, it is necessary to refer the proposition of

law on this point. Now it is relevant to refer the judgment of

the Hon'ble Supreme Court in the case of State of Tamil Nadu

V/s R.Soundirarasu and others reported in (2023) 6 SCC

768, paragraph No.82 and 83 held as under:

"82. By accepting the entire evidence put forward by the accused persons applying the doctrine of preponderance of probability, the case put up by the prosecution cannot be termed as "groundless". As observed by this Court in C.D.S. Swami (supra) that the accused might have made statements before the investigating officer as to his alleged sources of income, but the same, strictly, would not be evidence in the case.

83. Section 13(1)(e) of the Act 1988 makes a departure from the principle of criminal jurisprudence that the burden will always lie on the prosecution to prove the ingredients of the offences charged and never shifts on the accused to disprove the charge

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framed against him. The legal effect of Section 13(1)(e) is that it is for the prosecution to establish that the accused was in possession of properties disproportionate to his known sources of income but the term "known sources of income" would mean the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused. It is for the accused to account satisfactorily for the money/assets in his hands. The onus in this regard is on the accused to give satisfactory explanation. The accused cannot make an attempt to discharge this onus upon him at the stage of Section 239 of the CrPC. At the stage of Section 239 of the CrPC, the Court has to only look into the prima facie case and decide whether the case put up by the prosecution is groundless."

13. On careful reading of the above said dictum of the

Hon'ble Supreme Court, it makes it clear that, the burden lies

on the accused to prove his case and it is for him to account

satisfactorily for the questions raised for his assets. Further it

is clarified that at the time of considering the application for

discharge, the accused cannot make an attempt to discharge

his onus upon him at that stage.

14. After having considered the ratio laid down by the

Hon'ble Supreme Court in the case R.Soudarirarasu stated

supra, now it is necessary to advert the facts. The learned

senior counsel filed several documents along with the petition

to convince the Court that the said documents are sufficient to