Karnataka High Court

Sri T N Sudhakar Reddy vs State Of Karnataka on 4 March, 2024

Author: K.Natarajan

Bench: K.Natarajan

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 4TH DAY OF MARCH, 2024

                     BEFORE

       THE HON'BLE MR JUSTICE K.NATARAJAN

       CRIMINAL PETITION NO.13460 OF 2023


BETWEEN:


SRI. T.N.SUDHAKAR REDDY
S/O T.R.CHIKKANARAYANAREDDY,
AGED ABOUT 47 YEARS,
PRESENTLY R/AT NO.25,
HALCYON DEFENCE ENCLAVE,
SATHNUR VILLAGE,
BAGALURU MAIN ROAD,
BENGALURU - 560 097.


ALSO AT:

THULUVANURU,
GOLLAHALLI (POST),
CHINTHAMANU TALUK,
CHIKKABALLAPUR.
                                       ...PETITIONER

(By SRI. H.L.VISHALARAGHU, ADVOCATE)


AND:

STATE OF KARNATAKA
LOKAYUKTA TOWN POLICE STATION,
BENGALURU - 560 001.
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REPRESENTED BY
THE SPECIAL PUBLIC PROSECUTOR ATTACHED TO
HON'BLE HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
                                     ...RESPONDENT

(BY SRI. B. LETHIF, SPECIAL COUNSEL FOR
    RESPONDENT/KARNATAKA LOKAYUKTHA)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE FIR IN
CR.NO.56/2023 PENDING ON THE FILES OF THE 23RD
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, SPL.
COURT, LOKAYUKTA FOR OFFENCE P/U/S 13(1)(B) R/W
SEC. 13(2) OF THE PREVENTION OF CORRUPTION ACT,
AGAINST THE PETITIONER (ANNEXURE-A).

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 19.02.2024 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:

                        ORDER

This petition is filed by the petitioner-accused

under Section 482 of Cr.P.C. for quashing the FIR in

Crime No.56/2023 registered by Karnataka Lokayuktha,

for the offence punishable under Sections 13(1)(b), 12

read with Section 13(2) of the Prevention of Corruption

Act, 1988 (for short 'P.C. Act') and amended Act, 2018.

2. Heard Sri C.H. Jadhav, learned Senior

counsel for the petitioner and Sri B. Lethif, learned

Special counsel for the respondent-Lokayuktha.

3. The case of the prosecution is that a suo

motu complaint registered by the Lokayuktha Police on

the source report alleging that the petitioner worked

with the KPTCL in the year 2007 and presently working

as Deputy General Manager (Vigilance), BESCOM,

Bengaluru said to be amazed wealth of

Rs.3,81,40,246/- than the known source of income with

90.72% that he is in possession of assets both

moveable and immovable property to the tune of

Rs.4,20,37,736/- and he has spent expenditure of

Rs.1,08,75,000/- and his income during the check

period was Rs.6,93,02,982/- and the difference amount

was Rs.3,81,40,246/- (90.72%), hence, the police

registered the FIR and took up the investigation, which

is under challenge.

4. The learned Senior counsel for the petitioner

has vehemently contended that the Police registered

the FIR based upon the source report and the same has

been submitted to the Superintendent of Police.

Without making any preliminary enquiry and without

registering the FIR, the S.P. has passed the order as

per second proviso of Section 17 of the P.C. Act which

is violation of the mandatory provision and there is non

application of mind by the S.P. while passing the order

under Section 17 of the P.C. Act and FIR has been

registered subsequently, therefore, the FIR is not

sustainable under the law.

5. Learned Senior counsel also contended that

the petitioner declared his assets and liability to the

Authority concerned regularly and he is the income tax

payee. The police not made any preliminary enquiry

that the property have been purchased prior to joining

his service as public servant has been added in the

source report. The declared income of the wife, mother

and petitioner was not added in the income. The

market value fixed on the property was present market

value not on the value fixed on the date of purchasing

the property. Hence, prayed for allowing the petition

and quash the criminal proceedings. In support of his

contention, the learned Senior counsel for the petitioner

relied upon various judgments of the Hon'ble Supreme

Court.

6. Per contra, learned counsel appearing for

the respondent has contended that the source report

was received on 10.11.2023. Based upon the same, the

Investigating Officer came to the conclusion that there

is cognizable case made out and sent to the S.P. and in

turn, S.P. passed the order on 4.12.2023 by giving

permission to Dy.S.P.-4 for investigating the matter.

The learned counsel further contended that the

petitioner having immovable properties which stands in

the name of his mother and one Uma Devi while joining

service worth about Rs.1.25 crores and movables worth

Rs.21,68,804/- but he has illegally gained the property

worth Rs.3,29,79,768/-. Even the properties stands in

the name of petitioner, his wife, his mother and

relatives worth about more than Rs.5.9 crores, thereby,

he is having disproportionate wealth of 90.72%. He

further contended that it is in pre matured stage and

when the matter is under investigation, the FIR cannot

be quashed. The petitioner has produced some

documents which is under investigation. The

preliminary enquiry is not required as there is

cognizable case made out. The Court cannot hold a mini

trial while considering Section 482 of Cr.P.C. In support

of his case, the learned counsel relied upon the

judgments of the Hon'ble Supreme Court in the cases

of CBI vs. Thommandru Hannah Vijayalakshmi in

Crl.A.No.1045/2021 dated 8.10.2021; State of

Chhattisgarh and Another vs. Aman Kumar Singh

and Others in Crl.A.Nos.646-48 of 2023 and

connected appeals reported in (2023) 6 SCC 559; and

State of Tamil Nadu vs. R. Soundirarasu and

Others reported in (2023) 6 SCC 768 and hence,

prayed for dismissing the petition.

7. Having heard the arguments of both the

learned Senior counsels, learned counsel for the

respondent and perused the records, as per the FIR

registered by the Police that the petitioner being Officer

working in the Vigilance Wing of BESCOM Department,

he has joined the service on 3.8.2007 as Assistant

Executive Engineer and he was promoted as Executive

Engineer in the year 2021. It is alleged that the

petitioner made illegal assets in the name of his wife,

mother and relatives and acquired properties in the

name of Benami and he has no other income than the

salary. He has illegally gained Rs.3,29,79,767/-,

therefore, there is a source report collected by the

police and registered the FIR.

8. The learned Senior counsel for the petitioner

has mainly contended that the petitioner has purchased

some property prior to entering into the service, that

cannot be considered as property purchased

subsequent to the entering into service and hence,

filing the income tax returns and apart from that, his

wife is also earning income and she is the income tax

assessee. He has declared the assets and liabilities to

the Authority continuously. Therefore, question of

making allegation that he has amazed the wealth more

than the known source of income does not arise.

9. The another main contention of the learned

Senior counsel is that there is no proper application of

mind by the S.P. for appointing the Investigation Officer

as per Section 17 of the P.C. Act. There is no FIR

registered by the Police prior to requesting the S.P. for

passing the order as per proviso 2 of Section 17 of the

P.C. Act. There is no preliminary enquiry conducted by

the Investigating Officer before registering the FIR and

FIR was registered after according permission by the

S.P. under Section 17 of P.C. Act, which is not correct.

Therefore, conducting investigation in the FIR is

unsustainable under the law.

10. In support of his contention, the learned

Senior counsel has relied upon the judgments of

Hon'ble Supreme Court in the cases of State of

Haryana and Others vs. Bhajan Lal and Others

reported in 1992 Supp (1) SCC 335; Charan Singh

vs. State of Maharashtra & Others reported in

(2021) 5 SCC 469 and also the judgment passed by

the Co-ordinate Benches of this Court. The Hon'ble

Supreme Court in the case of Charan Singh stated

supra has held at paragraph Nos.15 and 15.1 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."

11. The Co-ordinate Bench of this Court in the

case of Navaneeth Mohan N. vs. SHO, ACB,

Bengaluru and Another in W.P.No.43817/2018

(GM-RES) dated 21.04.2021 has held 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."

12. The Co-ordinate Bench of this Court in the

case of Balakrishna H.N. vs. State by ACB, Mysuru

in W.P.No.15886/2022 (GM-RES) has held at

paragraph No.12 which is 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 twe, 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.

13. The Co-ordinate Bench had taken similar

view holding that there is no preliminary enquiry

conducted by the Police before registering the FIR and

before registering the FIR passing the order by the S.P.

under proviso 2 of Section 17 of P.C. Act is a gross

violation of the mandatory provisions.

14. Here in the case on hand, the S.P. accorded

permission purely based upon the source report and he

has not verified the FIR. The FIR also not registered

prior to passing the order under Section 17 of the P.C.

Act. Apart from that, it is brought to the notice of the

Court that the source report was prepared on

10.11.2023 and it was placed before the Police

Inspector. For that, it was endorsed as "FOR ENQUIRY

& REPORT", but there is no preliminary enquiry

conducted by the Police. But on the same source

report, the S.P. passed the order under proviso 2 of

Section 17 of the P.C. Act on 4.12.2023 and

simultaneously, he has instructed the Dy.S.P. to

register the FIR and take up the investigation on

4.12.2023. It is clear case of violation of the guidelines

issued by the Lalita Kumari vs. Government of

Uttar Pradesh and others reported in (2014) 2 SCC

1. Once the Police Inspector submitted the source

report, when it was endorsed by the Higher Officer for

enquiry and report, there is no preliminary enquiry

conducted and any report submitted by the police but

directly passed the order under Section 17 of the P.C.

Act and then FIR was registered. There is no occasion

for the S.P. to verify the source report, preliminary

enquiry and the FIR prior to passing the order under

Section 17 of the P.C. Act. As held by the Co-ordinate

Bench of this Court in the case of Balakrishna stated

supra, the police required to file preliminary enquiry

based upon the source report, then FIR required to be

registered, thereafter, the source report, preliminary

enquiry report and FIR shall be forwarded to the S.P.

for according permission under Section 17 of P.C. Act.

Thereafter, the S.P. required to apply his mind and

after satisfaction, he should pass the order for

investigating the matter. But here in this case, directly,

passed the order under Section 17 of P.C. Act and

simultaneously ordered to register FIR by making

endorsement as "REGISTER FIR AND TAKE UP

INVESTIGATION (SIGNED BY THE S.P.)". There is

clear violation of the mandatory provisions as held by

the Hon'ble Supreme Court in the case of Bhajan Lal

stated supra, has held at paragraph No.128 which is 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".

15. In view of the principle laid down by the

Hon'ble Supreme Court in the above said cases i.e.,

Bhajan Lal's case and Lalita Kumari 's case and the

Co-ordinate Bench of this Court in the case of

Balakrishna stated supra, the FIR deserved to be

quashed for not following the mandatory principle laid

down by the Hon'ble Supreme Court. Therefore, this

Court need not to go into the validity of the source

report or the disproportionate asset said to be held by

the accused and the judgment relied by the learned

counsel for the respondent, it is not applicable to the

fact and circumstances of the case. Therefore, the