Karnataka High Court
Ghanashyam Pradhan vs State By Central Bureau Of ... on 5 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 1168 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.1168 OF 2024
BETWEEN:
1. GHANASHYAM PRADHAN,
S/O SRI. INDRAMANI PRADHAN,
AGED ABOUT 61 YEARS,
EXECUTIVE ENGINEER (GENERAL),
O/O THE CHIEF ADMINISTRATIVE OFFICER,
BANGALORE CANTONMENT,
SOUTH WESTERN RAILWAY,
BENGALURU - 560001.
R/AT NO.375, 7TH MAIN,
VISWESWARANAGAR,
MYSORE - 570 008.
PERMANENT RESIDENT:
PATTASUNDARPUR VILLAGE AND POST,
Digitally signed KAKATPUR PS, PURI DISTRICT,
by DEVIKA M
ORISSA - 752 108.
Location: HIGH
COURT OF
KARNATAKA 2. SUDHA PRAVA PRADHAN,
W/O SRI. GHANASHYAM PRADHAN,
AGED ABOUT 47 YEARS,
R/AT NO.373, 7TH MAIN,
VISWESWARANAGAR,
MYSURU - 570 008.
3. SMT. SERMISTA PRADHAN,
W/O GHANASHYAM PARADHAN,
AGED ABOUT 51 YEARS,
R/AT NO.140/2,
3RD CROSS, GARAGE ROAD,
KAVERI EXTENSION,
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CRL.RP No. 1168 of 2024
KUMBARKOPPAL,
METAGALLY POST,
MYSURU - 570016.
...PETITIONERS
(BY SRI. MANE SHIVAJI HANAMANTAPPA, ADVOCATE)
AND:
1. STATE BY CENTRAL BUREAU OF INVESTIGATION,
ANTI-CORRUPTION BRANCH,
NO.36, BELLARY ROAD, GANGANAGAR,
BENGALRUU - 560 032.
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR,
IN THE HON'BLE HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
...RESPONDENT
(BY SRI. PRASANNA KUMAR P., ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER OF THE
TRIAL COURT DATED 02.09.2024 IN SPL.C.C.NO.132/2022
PENDING BEFORE THE LEARNED THE XXXII ADDL. CITY CIVIL
AND SESSIONS JUDGE AND SPL. JUDGE FOR CBI AND ED
CASES AT BENGALURU (CCH-34), BY ALLOWING THIS
REVISION PETITION AND DISCHARGE PETITIONERS FOR
OFFENCES PUNISHABLE UNDER SECTION 13(2) R/W 13(1)(e)
OF PC ACT, 1988 AND UNDER SECTION 13(2) R/W 13(1)(b) OF
PC ACT, 1988 (AS AMENDED IN 2018) IN THE ABOVE MATTER.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 1168 of 2024
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
Heard the learned counsel for the petitioners and the
learned counsel for the respondent.
2. This revision petition is filed against the dismissal
of discharge application dated 02.09.2024 passed in
Spl.C.C.No.132/2022 by the Trial Court.
3. The factual matrix of the case of the respondent
CBI while invoking Section 13(2) read with Section 13(1)(b)
of the Prevention of Corruption Act and Section 104 of IPC
against the petitioners is that accused No.1 has acquired
assets to an extent of Rs.3,77,96,644/-, which is 142%
beyond his known source of income during the check period
from 01.04.2010 to 09.01.2020 and accused Nos.2 and 3
have abated accused No.1 to acquire the said
disproportionate assets. But according to the accused
persons, proper calculation have not been made by the
Investigating Officer while preparing the final charge sheet.
According to them, several assets which were available at the
beginning of the check period have not been taken into
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consideration and therefore less assets have been shown in
statement A for the purpose of wrong calculation and more
assets have been shown in statement B so as to show that
accused No.1 had disproportionate assets. In fact, several
assets were not at all in existence. It is also contended that
the income of accused No.1 during the check period, several
income have been left out and thereby the Investigating
Officer has shown lesser income. The expenditure with
regard to unverifiable domestic expenditure, the Investigating
officer has shown 1/3rd on the gross salary instead of taking
1/3rd on the net salary. Taking 1/3rd on the gross salary is
not permissible under law. It is contended that some other
unnecessary expenses have been shown by the Investigating
officer only to make wrong calculation with regard to the
alleged disproportionate assets. It is contended that legal
and fair investigation has not been conducted by the
Investigating Officer. Therefore, there is serious lapse on the
part of the Investigating Officer while filing the charge sheet.
It is contended that the charge sheet is filed by the Sub-
Inspector of Police and he is not a competent person to file
the charge sheet. The learned counsel contend that wrongly
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shown the beginning of the check period income as Rs.24
lakhs as against Rs.54 lakhs and the Trial Court fails to look
into the cursory examination of material collected by the
Investigating Officer and committed an error in dismissing the
discharge application.
4. The learned counsel for the petitioners in support
of his arguments relied upon the judgments of the Apex Court
in the case of KANCHAN KUMAR v. THE STATE OF BIHAR
reported in 2022 LiveLaw (SC) 763, KRISHNANAND
AGNIHOTRI v. THE STATE OF MADHYA PRADESH
reported in (1977) 1 SCC 816 and B.C. CHATURVEDI v.
UNION OF INDIA AND OTHERS reported in (1995) 6 SCC
749. The learned counsel referring these judgments would
contend that the Trial Court failed to consider the material
placed on record and though the law is settled that only the
material evidence has to be looked into, the learned counsel
brought to the notice of this Court the discussion made in the
judgment of the Apex Court in the case of Kanchan Kumar
(supra) and relied upon paragraph Nos.14, 16, 16.2, 16.3 and
18, wherein it is held that the conclusions that we have drawn
are based on materials placed before us, which are part of the
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case record. This is the same record that was available with
the Special Judge (Vigilance) when the application under
Section 227 of Cr.P.C was taken up. Despite that, the Special
Judge (Vigilance) dismissed the discharge application on the
simple ground that a roving inquiry is not permitted at the
stage of discharge. What we have undertaken is not a roving
inquiry, but a simple and necessary inquiry for a proper
adjudication of an application for discharge. Unfortunately,
the High Court committed the same mistake as that of the
Special Judge (Vigilance).
5. The learned counsel also relied upon the judgment
of the Apex Court passed in Criminal Appeal
No.5009/2024 dated 04.12.2024, wherein the Apex Court
taken note of the income of the public servant as well as
income of the wife i.e., more than the amount
disappropriately shown and hence exercised the power in
quashing the proceedings initiated against the accused in the
said judgment.
6. Per contra, the learned counsel for the respondent
would contend that there are two cases against this
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petitioner. In the other case, he has taken the benefit from
the contractors when he allotted the work to the contractors
and also contend that he himself stood as a guarantor for the
loan availed by the contractors and the same was taken note
of in the said case. The learned counsel relied upon the order
passed by the Trial Court in respect of other charge sheet
filed against him in Special C.C.No.107/2023. The learned
counsel contend that in the present case on hand,
disproportionate asset is Rs.4.5 Crores and Rs.2.88 Crores is
the expenditure. The learned counsel contend that
disproportionate asset is 142% i.e., Rs.3,77,96,644/-. The
learned counsel contend that it is not in dispute that the
Police Sub-Inspector conducted the investigation and filed the
charge sheet and document No.3 is produced before this
Court along with the list of doucments, which clearly shows
that authorization was given to him by the Superintendent of
Police to conduct the case. When there is an authorization
given to the Police Sub-Inspector, the petitioner cannot
question the competence of the Police Inspector, who
conducted the investigation.
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7. The learned counsel for the respondent relied upon
the judgment of the Apex Court in the case of STATE OF
ORISSA v. DEBENDRA NATH PADHI reported in (2005) 1
SCC 568 and brought to the notice of this Court paragraph
No.23, wherein discussion was made with regard to the law is
that at the time of framing charge or taking cognizance the
accused has no right to produce any material and the same is
reiterated in the case of Satish Mehra v. Delhi Admn.
reported in (1996) 9 SCC 766, holding that the Trial Court
has powers to consider even materials which the accused may
produce at the stage of Section 227 of the Code has not been
correctly decided.
8. The learned counsel also relied upon the judgment
of the Apex Court in the case of STATE OF TAMIL NADU v.
R. SOUNDIRARASU AND OTHERS reported in (2023) 6
SCC 768 and brought to the notice of this Court paragraph
No.81, wherein discussion was made with regard to the High
Court has acted completely beyond the settled parameters.
The High Court has completely ignored that it was not at the
stage of trial or considering an appeal against a verdict in a
trial and at the time of discharge ought not to have relied
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upon the documents and the doctrine of preponderance of
probabilities cannot be decided while consdiering the
application at the time of discharge. The learned counsel also
brought to the notice of this Court paragraph No.83 wherein it
is held 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 framed against him
and the prosecution has to establish that the accused was in
possession of properties disproportionate to his known source
of income. 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 Cr.P.C. At the stage of Section 239 of Cr.P.C.,
the Court has to only look into the prima facie case and
decide whether the case put up by the prosecution is
groundless.
9. The learned counsel also relied upon the recent
judgment of the Apex Court passed in Special Leave
Petition (Criminal) No.5290/2024 dated 21.11.2024 and
brought to the notice of this Court paragraph No.6, wherein
discussion was made with regard to the Apex Court's
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judgment in the case of Debendra Nath Padhi (supra),
wherein the Court has reiterated the well-settled law that
while considering the prayer for discharge, the Trial Court
cannot consider any document which is not the part of the
charge-sheet. The learned counsel referring this judgment
would conted that the Trial Court while rejecting the
application filed under Section 227 of Cr.P.C. comes to the
conclusion that the petitioner being the accused cannot place
any document before the Court at the time of discharge and
not committed any error.
10. Having heard the learned counsel for the petitioner
and the learned counsel for the respondent and also taking
note of the impugned order, this Court has to analyze
whether the Trial Court committed an error in rejecting the
discharge application. The principles laid down in the
judgments referred supra is not in dispute. At the time of
considering the discharge application, the Court cannot look
into the documents of the accused and only can look into the
documents which the Investigating Officer has collected
during the course of investigation and also prima facie to look
into the material on record. The learned counsel for the
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petitioner relied upon the recent judgment of the Apex Court,
wherein taken note of the income of the wife and the
accused, wherein total income of the husband and wife, which
were declared income, is more than the disproportionate
amount shown and hence allowed the appeal. In the case on
hand, the allegation against petitioner No.1 is that he is
working as an Executive Engineer and disproportionate asset
alleged against him is 142% i.e., to the extent of
Rs.3,77,96,644/-. The learned counsel for the petitioner
contend that at the beginning the income is shown as Rs.24
lakhs instead of Rs.54 lakhs. Even taking Rs.54 lakhs as
contended by the learned counsel for the petitioner, when the
disproportionate income is Rs.3,77,96,644/-, the same will
not make any difference. The salary income of petitioner
No.1 is only around Rs.58 lakhs.
11. The learned counsel for the petitioner contend that
the wife is also having income, who is running PG and also
doing transport business. The learned counsel for the
respondent submits that the said income is also taken note of
and apart from that, even the expenditure is also taken note
of Rs.2.88 Crores and more than the assets accumulated
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Rs.4.5 Crores and even after deducting the same also, the
amount arrived is Rs.3,77,96,644/-. When the report is given
and along with the report the documents of the properties
which were acquired are also listed and whether the same is
10% or more than 10%, the same could be calculated only
during the course of trial. Here is a case of 142%
disproportionate asset and when such material is collected by
the Investigating Officer during the course of investigation,
the matter requires a full-fledged trial.
12. The other contention of the learned counsel for the
petitioner is that the officer who conducted the investigation
and filed the charge sheet is not the competent person. The
learned counsel for the respondent relied upon the document
No.3, wherein authorization is given to the officer who filed
the charge sheet. The same is in terms of the authorization
power given to the Superintendent of Police to authorize a
person in view of the notification. When such being the case,
at this stage, the same cannot be looked into.
13. The learned counsel for the petitioner contend that
the sanction given by the authority also not considered any
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material. Whether the same is a valid sanction or not and
whether the sanctioning authority applied its mind or not, the
same is a matter of trial. At this stage, the Court has to only
take note of the fact that whether the sanction is given or
not. If the sanction is valid or not, the same can be
considered at the time of trial and not at this stage. Hence,
the contention of the learned counsel for the petitioner that
not made any cursory look and examined the document
placed before the Trial Court by the Investigating Officer has
not been considered, cannot be accepted at this stage. The
matter requires full fledged trial and no grounds are made out
to discharge the petitioners by exercising the revisional
jurisdiction considering the material on record.
14. In view of the discussions made above, I pass the
following:
ORDER
The criminal revision petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
