Karnataka High Court
Sri N Satish Babu vs State Of Karnataka on 1 March, 2024
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
WRIT PETITION NO.3107 OF 2024
BETWEEN:
SRI. N SATISH BABU,
S/O LATE SRI. T. NARASIMHAIAH,
AGED ABOUT 52 YEARS,
OCCUPATION: SUPERINTENDENT ENGINEER,
PUBLIC WORKS PORTS AND INLAND WATER
TRANSPORT DEPARTMENT,
BUILDING CIRCLE,
2ND FLOOR, KR CIRCLE,
BENGALURU,
R/AT: 23/A, 6TH CROSS,
3RD MAIN ROAD ,
JAYAMAHAL LAYOUT,
BENGALURU - 560 046.
...PETITIONER
(BY SRI. P. PRASANNA KUMAR, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
LOKAYUKTA POLICE STATION,
BENGALURU CITY,
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR,
OFFICE OF KARNATAKA LOKAYUKTA,
M. S BUILDING,
2
DR. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2 . SRI. K G RAMAKRISHNA
S/O K P GANGARAJU,
AGED ABOUT 52 YEARS,
DEPUTY SUPERINTENDENT - 06,
KARNATAKA LOKAYUKTA,
BENGALURU CITY,
M S BUILDING,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI. B. LETHIF, ADVOCATE FOR R1 & R2 KARNATAKA
LOKAYUKTHA )
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA READ WITH SECTION 482
OF CR.P.C. PRAYING TO
QUASH THE FIR AND COMPLAINT/SOURCE REPORT IN
CRIME NO.03/2024 DATED 08.01.2024 REGISTERED BY THE
R1. KARNATAKA LOKAYUKTA POLICE, BENGALURU CITY AS
AGAINST THE PETITIONER HEREIN WHO IS ARRAYED AS
ACCUSED ALLEGING THE COMMISSIONER OF OFFENCE
PUNISHABLE U/S 13(1)(B) R/W SECTION 13(2) OF THE
PREVENTION OF CORRUPTION ACT, 1988 (AMENDMENT ACT
2018), WHICH IS PENDING ON THE FILE OF THE HONBLE
XXIII ADDL. CITY CIVIL AND SESSIONS COURT,
BENGALURU CITY, INSOFAR AS THE PETITIONER /
ACCUSED IS CONCERNED (PRODUCED VIDE ANNEXURES-A
AND B.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 14.02.2024 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
3
ORDER
This petition is filed by the petitioner/accused under
Articles 226 and 227 of Constitution of India, read with 482
of Cr.P.C for quashing the FIR in Crime No.3/2024
registered by the Karnataka Lokayuktha police, Bengaluru,
for the offences punishable under Section 13(1) (b), read
with 13(2) of Prevention of Corruption Act, 1988
(Amendment Act 2018) (hereinafter referred to as 'PC Act').
2. Heard the learned counsel for the petitioner and
learned special counsel for the respondent Nos.1 and 2.
3. The case of the prosecution is that on the suo-
motu complaint registered by the Lokayuktha police,
Bengaluru, against the petitioner alleging that the petitioner
was appointed as Industrial Extension Officer, Shikaripura
Industries and Commerce Department on 24.10.1994. Then
he was appointed as Junior Engineer in 2002 and worked in
various departments of Public Works Department (for short
'PWD'). Now he is Executive Engineer in PWD. As per the
source report collected by the police on 18.11.2023, FIR has
been registered, alleging that during his tenure as public
servant he has amassed wealth to the tune of
Rs.3,62,50,000/- about 110% disproportionate to his known
source of income in his name, from check period
24.10.1994 till date. Accordingly, the investigation has
taken up which is under challenge. Learned counsel for the
petitioner has vehemently challenged the
proceedings/investigation mainly on the ground, that the
DySP of Lokayuktha filed a source report against the
petitioner without conducting preliminary enquiry as
mandated under the law by the Lalita Kumari vs.
Government of Uttar Pradesh and others reported in
(2014) 2 SCC 1, passed by Hon'ble Supreme Court.
Further contended that the superintendent of police without
conducting preliminary enquiry/verification and without
satisfying himself of the genuineness of the source report
and without application of mind, in contravention of the
proviso to Section 17 of the PC Act, had permitted the
respondent No.1 to register the FIR and conduct the
investigation which is bad in law.
4. Learned counsel further contended, while
according the permission, the Superintendent of Police (SP),
had not at all considered that there is no preliminary
enquiry or registering the FIR and he should verify the
preliminary enquiry and FIR, then only accord the
permission under Section 17 of the PC Act. But the alleged
permission reveals he has not verified any FIR and no FIR
was registered based upon the source report, the
permission has been granted. Therefore, conducting
investigation is bad in law and hence prayed for quashing
investigation. In support of his case, learned counsel for the
petitioner relied upon the judgments of the Hon'ble
Supreme Court as under:-
1. 1992 Supp (1) SCC 335 in case of
State of Haryana & Ors. V. Bhajan Lal &
Ors.
2. WP No. 16028/2023 in case of
Shri. Pramod Kumar NG V. State of
Karnataka dated 14.12.2023.
3. (2021) 5 SCC 469,in case of
Charansingh V. State of Maharashtra & Ors.
4. W.P. No. 43817/2018 (GM-RES) in case
of Navaneeth Mohan N Vs. SHO, ACB,
Bengaluru dated 21.04.2021.
5. W.P. No. 15886/2022 (GM-RES) in
case of Balakrishna H.N. V. State of
Karnataka by ACB, Mysuru, dated:
03.01.2023.
5. Per contra, learned counsel for the respondent
Lokayuktha filed statement of objection contending that the
petitioner amassed wealth disproportionate to the known
source of income to the tune of Rs.3,62,50,000/- i.e.,
110%. The accused has purchased various properties and is
leading lavish life and purchased benami property in name
of his wife, mother-in-law and daughters. The matter is
under investigation. The SP after verifying the source report
and then passed the order as per proviso to Section 17 of
the PC Act. He further contended section 17 (a) of the PC
Act, was amended on 26.7.2017. Therefore, it is not
applicable to the case. The petitioner cannot seek relief
under Section 482 of Cr.P.C. Therefore, prayed for
dismissing the petition. In support of his contention learned
counsel relied upon the judgment of the Hon'ble Supreme
Court in case of 'CBI Vs Thommandru Hannah
Vijayalakshmi alias Vijayalakshmi reported in AIR
(2021) 18 SCC 135 : 2021 SCC OnLine SC 923 court
5041 and contended that this court cannot verify and sit as
a chartered accountant. The petitioner is having right to file
his documents and explanation. Therefore, prayed for
dismissing the petition.
6. Having heard the arguments, perused the records.
The main contention of the learned counsel for the
petitioner is that the Section 17, proviso 2 of the PC Act,
was not followed, which is mandatory in nature. Prior to
according permission, the SP is required to verify the source
report and should make preliminary enquiry and to register
FIR. Thereafter, shall pass the order under Section 17 of PC
Act, for investigating the matter. But here in this case, no
FIR was registered and based upon the source report, he
has accorded the permission under Section 17 proviso 2 of
the PC Act. In support of his case, learned counsel relied
upon the judgment of the Hon'ble Supreme Court in Bhajan
lal's case stated supra. Hon'ble Supreme Court has held
at paragraph 128 as under;
"128. The conspectus of the above decisions
clearly shows that the granting of permission
under Section 5-A authorising an officer of
lower rank to conduct the investigation is not
to be treated by a Magistrate as a mere
matter of routine, but it is an exercise of his
judicial discretion having regard to the policy
underlying and the order giving the
permission should, on the face of it, disclose
the reasons for granting such permission. It
is, therefore, clear in the light of the above
principle of law that the Superintendent of
Police or any police officer of above rank
while granting permission to a non-
designated police officer in exercise of his
power under the second proviso to Section 5-
A(1), should satisfy himself that there are
good and sufficient reasons to entrust the
investigation with such police officer of a
lower rank and record his reasons for doing
so; because the very object of the legislature
in enacting Section 5-A is to see that the
investigation of offences punishable under
Section 161, 165 or 165-A of Indian Penal
Code as well as those under Section 5 of the
Act should be done ordinarily by the officers
designated in clauses (a) to (d) of Section 5-
A(1). The exception should be for adequate
reasons which should be disclosed on the face
of the order. In this connection, it is worthy
to note that the strict compliance with Section
5-A(1) becomes absolutely necessary,
because Section 5- A(1) expressly prohibits
police officers, below certain ranks, from
investigating into offences under Sections
161, 165 and 165-A, IPC and under Section 5
of the Act without orders of Magistrates
specified there- in or without authorisation of
the State Government in this behalf and from
effecting arrests for those offences without a
warrant. See also A.C. Sharma v. Delhi
Administration".
7. Learned counsel also relied upon the judgment of
the Hon'ble Supreme Court in Charansingh v. State of
Maharashtra & Ors, Hon'ble Supreme Court held in
paragraph Nos. 15 and 15.1 are as under;
"15. While expressing the need for a
preliminary enquiry before proceeding against
public servants who are charged with the allegation
of corruption, it is observed in P. Sirajuddin³ that:
(SCC p. 601, para 17),
"before a public servant, whatever be his
status, is publicly charged with acts of dishonesty
which amount to serious misdemeanour or
misconduct of indulging into corrupt practice and
a first information is lodged against him, there
must be some suitable preliminary enquiry into
the allegations by a responsible officer. The
lodging of such a report against a person who is
occupying the top position in a department, even
if baseless, would do incalculable harm not only to
the officer in particular but to the department he
belonged to in general. If the Government had set
up a Vigilance and Anti-Corruption Department as
was done in the State of Madras and the said
department was entrusted with enquiries of this
kind, no exception can be taken to an enquiry by
officers of this Department.
It is further observed that: (P. Sirajuddin case³, SCC p.
601, para 17)
"when such an enquiry is to be held for
the purpose of finding out whether criminal
proceedings are to be initiated and the scope
thereof must be limited to the examination of
persons who have knowledge of the affairs of the
person against whom the allegations are made
and documents bearing on the same to find out
whether there is a prima facie evidence of guilt of
the officer, thereafter, the ordinary law of the
land must take its course and further enquiry be
proceeded with in terms of the Code of Criminal
Procedure by lodging a first information report."
15.1. Thus, an enquiry at pre-FIR stage is
held to be permissible and not only permissible
but desirable, more particularly in cases where
the allegations are of misconduct of corrupt
practice acquiring the assets/properties
disproportionate to his known sources of income.
After the enquiry/enquiry at pre-registration of
FIR stage/preliminary enquiry, if, on the basis of
the material collected during such enquiry, it is
found that the complaint is vexatious and/ or
there is no substance at all in the complaint, the
FIR shall not be lodged. However, if the material
discloses prima facie a commission of the offence
alleged, the FIR will be lodged and the criminal
proceedings will be put in motion and the further
investigation will be carried out in terms of the
Code of Criminal Procedure. Therefore, such a
preliminary enquiry would be permissible only to
ascertain whether cognizable offence is disclosed
or not and only thereafter FIR would be
registered. Therefore, such a preliminary enquiry
would be in the interest of the alleged accused
also against whom the complaint is made.
8. Learned counsel also relied upon the coordinate
bench in Navaneeth Mohan's case stated supra at
paragraph Nos.15 and 16 as under;
"15. The source report which is part of
Annexure-A submitted before
Superintendent of Police, ACB, Bengaluru,
the note of Superintendent of Police, ACB
do not indicate that along with the said
report any material was placed before him
to grant permission to register the FIR and
investigate the matter. In the order of
Superintendent Police absolutely, there is
no reference to submission of any
documents along with the source report.
In one stroke the Superintendent of Police
says that he is convinced that it is a fit
case to register the FIR and investigate
the case. He does not even say that any
preliminary enquiry was conducted prior to
placing source report before him.
Therefore, there is clear violation of the
direction issued by the Hon'ble Supreme
Court in Lalitha Kumari's case in
registering the FIR.
16. In the judgment of the Hon'ble
Supreme Court in Charansingh Vs. State of
Maharashtra and others in
Crl.A.No.363/2021 dated 24.03.2021
relied upon by the learned Spl. Public
Prosecutor himself, in para 12 it was held
that before registering the FIR a
preliminary enquiry shall be conducted
either confidential or open enquiry."
9. Another coordinate bench in Balakrishna's case
stated supra also taken similar view and has held at
paragraph 12 as under;
"12. If the reasons rendered by Apex
Court are noticed, two factors would
emerge one, that the prosecution is
required to draw up source report after
conducting some sort of a preliminary
enquiry to know the assets of the
Government servant and two, after the
source information report is placed
before the Superior Officer -
Superintendent of Police, he has to verify
as to whether a crime should be
registered or otherwise. If these
principles that would emerge from the
judgment of the Apex Court are
considered qua the facts obtaining in the
case at hand, the registration of the
crime would fall foul of the principles laid
down by the Apex Court and that of this
Court in the afore-quoted judgment.
Therefore, on this short ground that the
source information report disclosed
blatant non-application of mind and non-
conduct of preliminary inquiry as is
necessary in law only in cases concerning
disproportionate assets.
10. In view of the judgment rendered by Hon'ble
Supreme Court as well as coordinate benches of this court
and looking to the fact of the case, where the
superintendent of police have granted permission on
8.1.2024 and directed the Dy.SP to investigate the matter.
The said order has been passed just based upon the source
report submitted by one Ramakrishna Dy.SP -06. On
perusal of the order it does not reveal the application of
mind by the SP directing to register and investigate the
matter. Just that he has passed the order as per the source
report of the Dy.SP-06 and he has authorised to register
and investigate the case. But learned SP has not at all
applied his mind as to how the said figure was required to
be investigated and registered the FIR. The coordinate
bench has held in the Balakrishna's case stated supra, the
source report, if makes out a cognizable offence, the police
officer can register the FIR by making a preliminary enquiry
then forward the FIR as well as preliminary enquiry report,
along with the source report to the SP for according
permission to investigate the matter. However, herein this
case, it is a clear violation of the mandatory provision of
Section 17 (proviso 2) of PC Act. In the Charan Singh's
case stated supra, has considered the same. Here in this
case, even if there is no preliminary enquiry to be conducted
by the police in order to know the veracity of the source
report and if the cognizable offence is made out, they have
registered FIR and then forwarded the same to SP for
according the permission to investigate the matter. In this
case, after according permission by the SP, the FIR has
been registered. Absolutely there is no preliminary enquiry
conducted by police. FIR was also not registered prior to
order of SP. The coordinate bench of this court while
considering the Lalita Kumari's case in Balakrishna's
case stated supra had quashed the criminal proceeding and
another coordinate bench in WP.No.43817/2018 in
Navaneeth Mohan's case also had quashed the criminal
proceedings based upon the non-compliance of the guidance
issued by the Hon'ble Supreme Court in the Lalita
Kumari's case and Charan Singh's case stated supra.
Therefore, considering the facts and circumstances of
the case, there is clear violation of guidelines issued in
Lalita Kumari's case and Charan Singh's case and in view
of the judgment of the Hon'ble Supreme Court in Bhajan
Lal's case, the prosecution launched by the respondent is
abuse of process of law. It is not a fit case for investigating
the matter and FIR is liable to be quashed.
Accordingly, this petition is allowed.
Consequently, the FIR filed against the
petitioner/accused in Crime No.3/2024 registered by the
Karnataka Lokayuktha police, Bengaluru, is hereby quashed.
Sd/-
JUDGE
AKV
CT:SK
