Karnataka High Court
Sri. G.M Shivakumar vs State Of Karnataka on 7 March, 2024
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
WRIT PETITION NO.17248 OF 2022
BETWEEN:
1 . SRI. G.M SHIVAKUMAR
S/O LATE MAHADEVAIAH,
AGED ABOUT 41 YEARS,
R/A NO.13, 2ND A CROSS,
5TH A MAIN,
AISHWARYA LAYOUT,
KUVEMPUNAGAR,
DODDAKALASANDRA,
BANGALORE - 560 062.
2 . SMT. SOUMYA V
W/O G.M.SHIVAKUMAR,
AGED ABOUT 35 YEARS,
R/A NO.13, 2ND A CROSS,
5TH A MAIN,
AISHWARYA LAYOUT,
KUVEMPUNAGAR,
DODDAKALASANDRA,
BANGALORE - 560 062.
...PETITIONERS
(BY SRI. SANDESH J CHOUTA, SENIOR ADVOCATE FOR
SRI. ADBUTH J K., ADVOCATE)
2
AND:
THE STATE OF KARNATAKA
BY THE INSPECTOR OF POLICE,
LOKAYUKTA POLICE,
BANGALORE,
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
...RESPONDENT
(BY SRI. B B PATIL, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C. PRAYING TO
QUASH THE ORDER DATED 14.02.2022 OF TAKING
COGNIZANCE AND ISSUING PROCESS TO THE PETITIONERS
IN SPL.CC.NO.191/2022 ANNEXURE-D BY THE LEARNED
HONBLE XXIII ADDL.CITY CIVIL AND SESSION JUDGE AND
SPECIAL JUDGE FOR PREVENTION OF CORRUPTION
ACT,BANGALORE FOR THE ALLEGED OFFENCE PUNISHABLE
UNDER SECTION 13(1)(e), 13(2) OF PREVENTION OF
CORRUPTION ACT,1988 AND R/W SECTION 109 OF IPC AND
CONSEQUENTLY QUASH THE ENTIRE PROCEEDINGS.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 01.02.2024 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
3
ORDER
This writ petition is filed by the petitioner-accused
Nos.1 and 2 under Articles 226 and 227 of the Constitution
of India read with Section 482 of Cr.P.C. for quashing the
criminal proceedings in Special C.C. No.191/2022 pending
on the file of XXIII Additional City Civil and Special Judge for
Prevention of Corruption Act, Bengaluru, arising out of
Crime No.10/2019 registered by the then ACB and now
Lokayuktha, Bengaluru, for the offences punishable under
Section 13(1)(e) read with Section 13(2) of Prevention of
Corruption Act, 1988 (hereinafter referred to as 'P.C. Act')
read with Section 109 of IPC.
2. Heard the arguments of learned Senior Counsel for
the petitioners and learned Special Counsel for the
Lokayuktha.
3. The case of prosecution is that petitioner No.1 is
working as village accountant at Talaghattapura Gram
Panchayat in the year 2006. In the year 2007, the said
Talaghattapura Gram Panchayat came under BBMP limit and
petitioner No.1 was appointed as temporary Bill Collector in
ward No.198. It is alleged that as per the source report,
petitioner No.1 given false assurance that he would help the
public by imposing less tax by creation of false khatha and
has been acting as middle man. He is said to be amazed
with more than the known source of income amounting to
Rs.3,47,50,000/- between the check period between
08.06.2005 and 10.04.2018. Based upon the source report,
an FIR came to be registered and charge sheet has been
filed, which is under challenge.
4. The learned Senior Counsel for the petitioners has
seriously contended that though the BBMP has initiated
departmental enquiry against petitioner No.1 on 08.02.2021
and he has been exonerated from the departmental enquiry
vide order dated 29.11.2021, the police have illegally
included the name of petitioner No.2, who is the wife of
accused No.2, along with accused No.1 and filed charge
sheet. It is further contended that the trial Court took
cognizance wrongly against both the accused for the
offences punishable under Sections 13(1)(e) and 13(2) of
P.C. Act.
5. The learned Senor Counsel has further contended
that there is no basis for registering the FIR against
petitioner No.1. The petitioner has been already exonerated
from the departmental proceedings. The police have
wrongly shown the properties belong to the father and wife
of the petitioner as benami properties of petitioner No.1.
Petitioner No.2 is having her own source of income from
rent and chit business even prior to the check period and
she is an income tax assessee and therefore, she cannot be
made as an accused.
6. The learned Senior Counsel further contended that
mere possession of assets is not an offence, but failure on
the part of the public servant to satisfactorily explain the
same is an offence under Section 13(1)(e) of the P.C. Act.
Petitioner No.1 has successfully explained the sources of
income and therefore, the explanation offered by him,
cannot be discarded. Respondent was unable to establish
its charge in the departmental proceedings. Therefore,
continuing the proceedings, in this case, does not arise,
which is nothing but abuse of process of law.
7. The learned Senior Counsel further contended that
the police have failed to conduct preliminary enquiry before
registering the FIR and there is violation of guidelines issued
by Hon'ble Supreme Court in the case of LALITA KUMARI
Vs. GOVERNMENT OF UTTAR PRADESH AND OTHERS
reported in (2014) 2 SCC 1.
8. The learned Senior Counsel has mainly contended
that there is violation of the mandatory provision of the
second proviso to Section 17 of P.C. Act. There is no order
passed by the S.P. under the second proviso to Section 17
of the Act permitting the Dy.S.P. to investigate the matter.
Without the order of the S.P., which is mandatory in nature,
the investigation has been conducted. Once the source
report is received, the police are required to make
preliminary enquiry. If the preliminary enquiry reveals that
there is cognizable offence made out, then FIR shall be
registered under Section 154 of Cr.P.C. Thereafter, the
preliminary enquiry report along with the source report and
the FIR shall be forwarded to the S.P. seeking permission
under the second proviso to Section 17 of the Act.
Thereafter, the S.P. shall apply his mind and pass an order
for the investigation. But, the S.P. is said to be passed the
order under Section 17 of the P.C. Act which reveals there is
no application of mind. The order of the S.P. is based upon
the source report, but not on the preliminary enquiry report
and on the FIR. which is a mandatory provision for granting
the order for investigating the matter. Therefore, Criminal
prosecution is not sustainable under law. In support of his
contention, the learned Senior Counsel has relied upon the
following judgments:
(i) State of Haryana and others
Vs. Bhajan Lal and others - 1992 Supp(1)
SCC 335;
(ii) State Through Central Bureau
of Investigation Vs. Hemendra Reddy
and another - 2023 SCC Online SC 515;
(iii) Shri Udaya Ravi Vs. the State
of Karnataka and another - W.P.
No.104906/2023 D.D. on 20.12.2023;
(iv) State of M.P. and Others Vs.
Ram Singh and others - (2000)5 SCC 88;
(v) Central Bureau of
Investigation (CBI) and another Vs.
Thommandru Hannah Vijayalakshmi
Alias T.H. Vijayalakshmi and another -
2021 SCC Online SC 923;
(vi) Sri K.R. Kumar Naik Vs. The
State by Anti Corruption Bureau - W.P.
No.7911/2022 D.D. on 26.07.2022.
9. Per contra, learned Special Counsel for the
respondent-Lokayuktha has seriously objected the petition
and contended that the S.P. has passed the order under
Section 17 of the P.C. Act based upon the source report
and, and thereafter, the FIR has been registered. The order
under Section 17 of the P.C. Act and the FIR has been
simultaneously registered on 19.03.2018 at 2.30 p.m.
Investigation has already been completed and charge sheet
has been filed and hence, prayed for dismissing the petition.
10. The learned Special Counsel for the respondent-
Lokayuktha has further contended that petitioner No.1 was
amazed with 613.03% more than the known source of
income. As per the source report, petitioner No.1 is amazed
with 457.23% more than the known source of income. He
has further contended that under Section 17 of the P.C. Act,
the order has been passed and there is no flaw in the order.
There is application of mind by the S.P. while passing the
said order. The preliminary enquiry report is not required
when the cognizable offence is made out for registering the
FIR. Merely the departmental enquiry held in favour of the
petitioner No.1-accused No.1 itself is not a ground for
allowing the petition. Though petitioner No.2-accused No.2
is not the public servant, there is no bar for filing the charge
sheet against her. The Court cannot conduct a trial while
considering the petition under Section 482 of Cr.P.C.
Hence, prayed for dismissing the petition.
11. The learned Special Counsel for the respondent-
Lokayuktha has relied upon the various judgments of the
Hon'ble Supreme Court as under:
(i) State of Maharashtra Vs.
Pollonji Darabshaw Daruwalla - 1987
(Supp) SCC 379
(ii) State of M.P. and Others Vs.
Ram Singh and others - (2000)5 SCC 88;
(iii) State of W.B. Vs. Kailash
Chandra Pandey - (2004)12 SCC 29
(iv) DSP, Chennai Vs. K.
Inbasagaran - (2006)1 SCC 420
(v) Ashok Tshering Bhutia Vs. State
of Sikkim - (2011)4 SCC 402
(vi) Vinod Kumar Garg Vs. State
(Government of National Capital Territory
of Delhi) - (2020)2 SCC 88
12. Having heard the arguments of learned counsels
for the parties, perused the records.
13. The allegation against petitioner No.1 is that he,
being the public servant working in the BBMP, amazed the
wealth more than the known source of income to the tune of
Rs.3,47,50,000/-. Based upon the source report, the S.P.
passed the order under Section 17 of the P.C. Act for
registering the FIR and investigating the matter.
Accordingly, the Lokayuktha police registered the FIR and
filed charge sheet.
14. The main contention of the learned Senior
Counsel for the petitioners is that after receipt of the source
report, the police required to conduct preliminary enquiry to
find out as to whether any prima facie case for cognizable
offence is made out against the petitioner as per the
judgment of the Hon'ble Supreme Court in Lalita Kumari's
case (supra). After the preliminary enquiry, the police are
required to register FIR. Then the FIR shall be forwarded to
the S.P. along with the source report and preliminary
enquiry report for the purpose of passing the order under
the Second proviso to Section 17 of the P.C. Act. But, here,
in the present case, the police inspector one Subramanya
Swami prepared the source report and he suspected that
the petitioner accumulated the properties worth Rs.3.47
cores which was disproportionate to the known source of
income. Based upon the source report, the S.P. passed the
order on 19.03.2018 directed the Dy.S.P. Balaraju to
register the FIR and investigate.
15. The learned Senior Counsel has contended that as
per the judgments of the Hon'ble Supreme Court and
decision of the Co-ordinate Bench of this Court, once the
source report is received the police required to make
preliminary enquiry to know the cognizance offence made
out or not, and if the cognizable offence is made out, the
FIR required to be registered along with the FIR, preliminary
enquiry report and the source report shall be forwarded to
the S.P., then the S.P. shall order for registering the FIR.
16. On perusal of the records, which reveals that the
police inspector forwarded the source report on 19.03.2018
and immediately, the S.P. suspected that the petitioner
No.1-accused No.1 might have amazed the wealth more
than the known source of income and therefore, ordered to
register the FIR. The order dated 19.03.2018 passed by
the S.P. clearly reveals that he suspected that the petitioner
No.1-accused No.1 might have amazed the wealth more
than the known source of income which clearly demonstrate
that there is no application of mind, and without verifying
the source report and even without having any preliminary
enquiry report, the S.P. has passed the order. Once the
S.P. has stated that he suspected that the petitioner has
amazed the wealth, that means, he has not verified the
source report in order to come to the conclusion that there
is a material for registering the FIR against the petitioners.
The Hon'ble Supreme Court, in the Bhajan Lal's case, at
para 128 has held 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".
17. In CHARANSINGH Vs. STATE OF
MAHARASHTRA AND OTHERS reported in (2021) 5 SCC
469, the Hon'ble Supreme Court at paragraph 15 and 15.1
has held 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.
18. The Coordinate Bench of this Court in the case of
NAVANEETH MOHAN N Vs. THE STATION HOUSE
OFFICER, ANTI CORRUPTION BUREAU, BENGALURU
AND ANOTHER in W.P. No.43817/2018, D.D.
21.04.2021, has held 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."
19. In another case, the Coordinate Bench in the case
of Balakrishna H.N. Vs. State Of Karnataka by ACB,
Mysuru, in W.P. No.15886/2022, D.D. 03.01.2023, at
para 12, has held 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.
20. In view of the principles laid down by the Hon'ble
Supreme Court in Bhajan Lal's case (supra), Charansingh's
case (supra), it has been categorically held that preliminary
enquiry required to be conducted prior to registering the FIR
in order to verify the veracity of the source reported
submitted by the police officer, and if the cognizance offence
is made out, then the FIR required to be registered.
Thereafter, the FIR as well as preliminary report required to
be sent to the S.P. for permission under Section 17 of the
P.C. Act. Thereafter, the S.P. required to apply his mind by
verifying the preliminary enquiry report, source report as
well as the FIR, then should accord permission under the
Second Proviso to Section 17 of the P.C. Act. But, here, in
this case, the order of the S.P. dated 19.03.2018, reveals
that he has suspected the petitioner regarding amazement
of the assets and ordered to register the FIR and
investigate. The Bhajan Lal's case (supra), squarely
applicable to the case on hand. Therefore, the criminal
proceeding against the petitioners is without following the
mandatory provisions and guidelines of the Hon'ble
Supreme Court in Lalita Kumari's case (supra) and Bhajan
Lal's case (supra) and the second proviso to Section 17 of
P.C. Act. Therefore, the Criminal proceeding cannot be
sustainable. The Hon'ble Supreme Court also in the
Ramsingh's has case considered Section 17 of the P.C. Act.
21. Though the learned Special Counsel for
respondent has produced the order dated 19.03.2018
passed by the S.P., which is in a typed manner, it appears
that it was created subsequently in order to show the
compliance of Section 17 of the P.C. Act. Therefore, the
argument of learned Special Counsel for the respondent-
Lokayuktha cannot be sustainable that there is compliance
of Section 17 of the P.C. Act.
22. Apart from that, the learned Senior Counsel for
the petitioner has contended that the respondent-
Lokayuktha has already made the departmental enquiry,
wherein the petitioner was exonerated from the charges and
therefore, the criminal proceeding under the P.C. Act on the
same allegation, cannot be sustainable. The departmental
enquiry report has been produced by the petitioner's
counsel, which reveals that the departmental enquiry was
conducted and the report has been submitted on
29.11.2021 by exonerating the petitioner from the charges
for the same offence for amazing the wealth
disproportionate to the known source of income 457.23%.
The Hon'ble Supreme Court in the case of RADHESHYAM
KEJRIWAL Vs. STATE OF WEST BENGAL AND ANOTHER
reported in (2011)3 SCC 581 has held that once the
accused has been dealt in the departmental enquiry on
some charges and has been exonerated by the Authority,
again on the same charges, the criminal charges will not be
sustainable since degree of proof in departmental enquiry is
based upon the preponderance of probabilities and proving
the guilt in Criminal case is beyond reasonable doubt. When
the prosecution is not able to prove the charges in the
departmental enquiry, where the lesser degree of proof is
required, and based upon the same allegation, the criminal
prosecution cannot stand and liable to the quashed in view
of the judgment of the Hon'ble Supreme Court in
Radheshyam Kejriwal's case (supra). Once the petitioner is
exonerated from the same charges in the departmental
enquiry, the charges in criminal prosecution cannot be
sustainable. Therefore, on that ground, the criminal
proceeding against the petitioners will have to be quashed.
In view of the above findings for both violation of mandatory
provisions of the second proviso to Section 17 of the P.C.
Act, Lalita Kumari's case (supra) and Bhajan Lal's case
(supra), the proceedings against the petitioners is liable to
be quashed. In view of the aforesaid findings, the petition
is deserves to be allowed.
24. Accordingly, the writ petition is allowed. The
proceedings in Special C.C. No.191/2022 pending on the file
of XXIII Additional City Civil and Special Judge for
Prevention of Corruption Act, Bengaluru, arising out of
Crime No.10/2019 registered by the then ACB and now
Lokayuktha, Bengaluru, is hereby quashed.
Sd/-
JUDGE
Cs
