Karnataka High Court
D R Bijapura vs The State Of Karnataka on 16 January, 2025
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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CRL.P No. 1581 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
CRIMINAL PETITION NO. 1581 OF 2024
BETWEEN:
1 . D R BIJAPURA
S/O RAMACHANDRA BIJAPURA,
AGED ABOUT 62 YEARS,
OCCUPATION: RETIRED GOVERNMENT
SERVANT,
R/O KUVEMPUNAGAR,
3RD TURN,
CHIKKAMAGALURU TALUK,
CHIKKAMAGALURU-577101
...PETITIONER
(BY SRI.SHIVSHANKER, ADVOCATE)
AND:
Digitally
signed by
KIRAN 1 . THE STATE OF KARNATAKA
KUMAR R
THROUGH ACB POLICE STATION,
Location:
HIGH COURT (NOW AT LOKAYUKTA)
OF STATION CHIKKAMAGALURU,
KARNATAKA
REP BY SPECIAL PUBLIC POSECUTOR ,
HIGH COURT OF KARNATAKA,
BENGALURU-560001.
2 . SRI.S.D. KRISHNAMURTHY
S/O DEVACHARI,
AGED ABOUT 44 YEARS,
OCCUPATION: AGRICULTURE AND
BUSINESS,
RESIDENT
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CRL.P No. 1581 of 2024
MACHAGONDNHALLI VILLAGE,
POST OFFICE: GULLAN PETE,
HOBALI: ALLADUR TALUK
AND DISTRICT
CHIKKAMAGALURU-577101
...RESPONDENTS
(BY SRI. LETHIF.B.., ADVOCATE FOR R-1;
R-2 IS SERVED AND UNREPRESENTED)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CRIMINAL PROCEDURE CODE, 1973 BY THE ADVOCATE
FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO QUASH THE ENTIRE PROCEEDINGS IN
SPECIAL CRIME No.44/2023 VIDE F.I.R. No.04/2020, WHICH
WAS LODGED BY THE ANTI-CORRUPTION BUREAU POLICE
STATION, CHIKKAMGALURU FOR THE OFFENCE PUNISHABLE
UNDER SECTION 7(b) OF PREVENTION OF CORRUPTION
(AMENDMENT) ACT, 2018 ON 26.11.2020, INSTANTLY
PENDING BEFORE THE LEARNED PRINCIPAL DISTRICT AND
SESSIONS JUDGE, CHIKKAMAGALURU.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 08.01.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
CORAM: THE HON'BLE MR JUSTICE N S SANJAY GOWDA
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CAV ORDER
1. This petition is filed seeking for quashing of the
proceedings in Special Crime No.44 of 2023 which
has been registered pursuant to Crime No.4 of 2020
for the offence punishable under Section 7(b) of the
Prevention of Corruption Act, 1988 as amended by
Prevention of Corruption (Amendment) Act, 2018
(for short, 'the Act'), which is pending before the
Principal District and Sessions Judge,
Chikkamagaluru.
2. A complaint was filed on 26.11.2020 contending that
a demand was made for payment of an illegal
gratification on 24.11.2020 and in compliance of the
said demand, money was paid on 26.11.2020 to the
petitioner during which time, he was apprehended
while accepting the illegal gratification.
3. Pursuant to the above complaint, a crime was
registered and after investigation, a charge-sheet
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has also been laid against the petitioner on
29.03.2023.
4. It is not in dispute that, an enquiry in respect of the
very same allegation of demanding and accepting
illegal gratification was also conducted against the
petitioner on the department side i.e., a disciplinary
proceeding was initiated by the disciplinary authority
and the enquiry was entrusted to a retired District
Judge and the District Judge after considering the
evidence that was adduced before him has
concluded that the third bill in respect of the
complainant's claim had been paid on 26.09.2020
i.e., two months prior to the filing of the complaint
and there was no possibility of the petitioner being
involved in the crime. The enquiry officer found that
since the third bill was already paid to the
complainant, the question of there being any
demand by the petitioner was untenable. The
enquiry officer also found that in the complaint that
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had been lodged on 26.11.2020, the petitioner was
not specifically named and a specific allegation
against him was also not made.
5. This enquiry report dated 10.09.2024 exonerating
the petitioner has been accepted by the disciplinary
authority on 05.12.2024 and the proceedings have
concluded in favour of the petitioner. In other
words, even in the disciplinary proceedings, in which
the degree of proof required to establish guilt is
much lower and a finding of guilt is based on the
principle of preponderance of probability as against
the principle of proof beyond all reasonable doubt
required in a criminal prosecution, it has been found
that the charges of demanding illegal gratification
cannot be accepted since the third bill of the
complainant had already been paid two months prior
to the lodging of the complaint. In light of the
exoneration of the petitioner on the department
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side, the petitioner is seeking for quashing of these
proceedings.
6. The Lokayukta however contends that mere
exoneration of the complainant in the disciplinary
proceedings would not justify the quashing of the
proceedings, since exoneration of the petitioner is
not after all the witnesses who had been cited in the
charge-sheet had been examined and was without
reference to the voice sample report which was
against the petitioner.
7. Reliance is sought to be placed on the judgment of
the Hon'ble Supreme Court rendered in Sanju
Rajan Nayar1 to contend that mere exoneration of
the charges leveled against the accused in a
departmental proceeding would not entitle an
accused to seek for quashing of the proceedings.
Sanju Rajan Nayar vs. Jayaraj and another, (2024) SCC Online 582.
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8. In Radheshyam Kejriwal2 case, after considering
various judgments, the Apex Court has laid down
the ratio in the following terms:
"38. The ratio which can be culled out from
these decisions can broadly be stated as
follows :-
(i) Adjudication proceeding and criminal
prosecution can be launched
simultaneously;
(ii) Decision in adjudication proceeding is
not necessary before initiating
criminal prosecution;
(iii) Adjudication proceeding and criminal
proceeding are independent in nature
to each other;
(iv) The finding against the person facing
prosecution in the adjudication
proceeding is not binding on the
proceeding for criminal prosecution;
(v) Adjudication proceeding by the
Enforcement Directorate is not
prosecution by a competent court of
law to attract the provisions of Article
20 (2) of the Constitution or Section
300 of the Code of Criminal
Procedure;
(vi) The finding in the adjudication
proceeding in favour of the person
facing trial for identical violation will
depend upon the nature of finding. If
the exoneration in adjudication
proceeding is on technical ground
Radheshyam Kejriwal case vs. State of West Bengal, (2011) 3 SCC 581
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and not on merit, prosecution may
continue; and
(vii) In case of exoneration, however, on
merits where allegation is found to
be not sustainable at all and person
held innocent, criminal prosecution
on the same set of facts and
circumstances can not be allowed to
continue underlying principle being
the higher standard of proof in
criminal cases.
In our opinion, therefore, the yardstick
would be to judge as to whether allegation
in the adjudication proceeding as well as
proceeding for prosecution is identical and
the exoneration of the person concerned in
the adjudication proceeding is on merits.
In case it is found on merit that there is no
contravention of the provisions of the Act
in the adjudication proceeding, the trial of
the person concerned shall be in abuse of
the process of the court."
9. As could be seen from the above, the Apex Court
has held that only if the exoneration of the
delinquent official in an adjudication proceeding is
on a technical ground and not on merits, the
criminal prosecution could continue. The Supreme
Court has also clearly held that in case exoneration
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is on merits and the allegations found to be
unsustainable and if the person is held to be
innocent, the criminal prosecution on the same set
of facts and circumstances of the case cannot
continue to be allowed.
10. In the instant case, a clear finding has been
rendered on merits by the enquiry officer that the
charges against the petitioner could not be
sustained at all, since two months prior to the
criminal complaint, the third bill in favour of the
complainant had already been paid. It has been
held, in light of the third bill having been paid two
months prior to the complaint, the question of the
petitioner again making a claim would be completely
untenable.
11. The enquiry officer has also recorded a finding that
in the complaint itself, the petitioner was not
named. It is therefore clear that the exoneration of
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the petitioner in the departmental proceedings is on
merits and not on technical grounds.
12. In light of the ratio laid down in Radheshyam case,
it is obvious that the prosecution cannot be
continued against the petitioner.
13. The reliance placed on the judgment in Sanju
Rajan Nayar's case cannot be accepted even
though in that case also, the petitioner therein had
been exonerated in the departmental proceedings.
14. This is because, the Supreme Court in paragraph 7
of the judgment has taken note of the attendant
circumstances of that particular case and it is stated
that two persons were named as an accused, but
the petition for quashing was preferred by only one
accused, but the first information report was
categorical that accused No.2--ASI had received
money and the Police Inspector had assured him
that they would provide a charge-sheet in lieu of
money. Since the Supreme Court found that in
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those circumstances, when there were two accused,
quashing of the proceedings would be improper and
prosecution will have to continue.
15. The Supreme Court has rendered the judgment in
the facts and circumstances of that case and has not
laid down a proposition of law that even if the
delinquent is exonerated in the disciplinary
proceedings, yet the criminal prosecution to
continue.
16. It is also to be stated here that, Radheshyam's
case has also been followed in Ashoo
Surendranath Tewari's3 case wherein, the
Supreme Court has categorically held and re-
iterated that if the delinquent official was
exonerated on the departmental side, in respect of
the same charges, prosecution cannot be permitted
to continue.
Ashoo Surendranath Tewari vs. Deputy Superintendent of Police, EOW, CBI
and another, (2020) 9 SCC 636.
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17. It is therefore clear in the instant case that since the
proceedings against the petitioner on the
departmental side had ended in exoneration on
merits of the claim, the prosecution cannot be
permitted to continue.
18. Consequently, the criminal petition is allowed and
the impugned proceedings as against the petitioner
are quashed.
Sd/-
(N S SANJAY GOWDA)
JUDGE
RK
