Sri. Shivakumar S/O Veerappa Shirol vs State Of Karnataka
2025 Latest Caselaw 3032 Kant

Karnataka High Court

Sri. Shivakumar S/O Veerappa Shirol vs State Of Karnataka on 29 January, 2025

Author: Hemant Chandangoudar

Bench: Hemant Chandangoudar

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                                                                                 NC: 2025:KHC-D:1797
                                                                           CRL.P No. 101011 of 2024



                                             IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                                 DATED THIS THE 29TH DAY OF JANUARY, 2025
                                                                  BEFORE
                                             THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
                                         CRIMINAL PETITION NO. 101011 OF 2024 (482(Cr.PC)/528(BNSS))

                                        BETWEEN:

                                        SRI. SHIVAKUMAR S/O. VEERAPPA SHIROL
                                        AGE. 44 YEARS, OCC. NOW VILLAGE
                                        ADMINSTRATIVE OFFICER,
                                        R/O. TASHILDAR OFFICER,
                                        BILAGI-587116, DIST. BAGALKOTE.
                                                                                       ...PETITIONER
                                        (BY SRI. NEELENDRA D. GUNDE, ADVOCATE)

                                        AND:

                                        1.   STATE OF KARNATAKA
                                             REPRESENTED BY LOKAYUKTA P.S.
                                             BAGALKOTA, REPRESENTED BY
                                             SPECIAL PUBLIC PROSECUTOR,
                                             HIGH COURT BUILDING, DHARWAD.

                                        2.   SRI. JAGADISH HERADEMME S/O. MUDAKAPPA
                                             AGE. 32 YEARS, OCC. AGRICULTURE,
                                             R/O. SUNAG VILLAGE-587116,
                                             TQ: BILAGI, DIST. BAGALKOTE.
                Digitally signed by B
                K
                MAHENDRAKUMAR
                                                                                 ...RESPONDENTS
BK
MAHENDRAKUMAR
                Location: HIGH
                COURT OF
                KARNATAKA
                                        (BY SRI. SANTOSH B. MALAGOUDAR, SPP FOR R1;
                DHARWAD BENCH
                Date: 2025.02.01
                14:24:51 +0530
                                         NOTICE TO R2 IS SERVED)
                                             THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
                                        SEEKING TO, QUASH ORDER DATED 19.01.2021 PASSED BY PRL.
                                        DISTRICT AND SESSIONS JUDGE, BAGALKOTE IN SPECIAL CASE
                                        NO. 05/2021 THEREBY TAKING COGNIZANCE FOR THE OFFENCES
                                        P/U/SEC. 7(a) OF PREVENTION OF CORRUPTION ACT-1988
                                        (AMENDMENT ACT-2018)., AND ALL FURTHER CONSEQUENT
                                        PROCEEDINGS THERETO, ALLOW THE ABOVE CRIMINAL
                                        PETITION.
                                            THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
                                        ORDER WAS MADE THEREIN AS UNDER:
                                        CORAM:   THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
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                                                NC: 2025:KHC-D:1797
                                         CRL.P No. 101011 of 2024



                           ORAL ORDER

1. The petitioner/accused, who is facing trial for the offence punishable under Section 7A of the Prevention of Corruption Act, 1988, has approached this Court.

2. The prosecution alleges that the petitioner demanded a gratification amount of ₹4,000 to enter the names of the complainant and his mother in the Record of Rights in relation to land bearing RS No. 196/A+B+3 of Sunaga Gram, following the death of the complainant's father. A trap was conducted, during which the petitioner was caught red-handed while accepting the gratification amount of ₹4,000 from the complainant in the presence of a shadow witness. On the basis of a similar set of allegations, a departmental inquiry was conducted, wherein the inquiry officer, after a full-fledged inquiry, exonerated the petitioner of the charges. The order exonerating the petitioner has attained finality.

3. Learned counsel for the respondent/Lokayukta has filed a statement of objections, which is taken on record. He contends that although the shadow witness supported the prosecution's case in the departmental inquiry, the petitioner was still exonerated. Furthermore, the investigating officer, who is a material witness, was not examined during the departmental inquiry. Therefore, in such circumstances, the benefit of the petitioner's exoneration in the departmental proceedings cannot be extended to quash the criminal proceedings. In support of this

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contention, reliance is placed on the decision of the Hon'ble Supreme Court in Sanju Rajan Nayar v. Jayaraj & Another.

4. After considering the arguments of the learned counsel for both parties, the following observations are made:

5. It is undisputed that departmental proceedings were initiated against the petitioner, and after adjudicating the matter at length, the inquiry committee exonerated the petitioner on the same set of charges, on merits. However, the investigating officer, who conducted the investigation and submitted the final report, was not examined in the departmental inquiry.

6. To establish demand and acceptance, the material witnesses are the complainant and the shadow witness, while the evidence of the investigating officer is limited to proving the recovery of tainted money from the accused, the subsequent drawing up of the trap mahazar, and the forwarding of the tainted money to the Forensic Science Laboratory (FSL). The burden to prove the demand and acceptance of the tainted money rests upon the complainant and the shadow witness. In the present case, the complainant has not supported the prosecution's case. Although the shadow witness partly supported the prosecution's case during the departmental inquiry, the inquiry officer, after appreciating the evidence of both the complainant and the shadow witness, concluded that the allegations against the petitioner were baseless.

7. Furthermore, given that no official work was pending as of the date of the trap, the order exonerating the petitioner in the departmental inquiry has attained finality. Therefore, the contention

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of the learned counsel for the respondent/Lokayukta that the exoneration in the departmental inquiry cannot be extended to quash the criminal proceedings is untenable.

8. The Hon'ble Supreme Court in the case of Radheshyam Kejriwal Vs. State of West Bengal reported in (2011) 3 SCC 581 has laid principle which reads thus:

"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 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 cannot be allowed to continue underlying principle being the higher standard of proof in criminal cases."

9. The Hon'ble Supreme Court consisting of three learned Judges in the case of the State (NCT of Delhi) (supra)

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without reference to the decision in the case of Radheshyam Kejriwal (supra) has held that the High Court misread the judgment in PS Rajya Vs. State of Bihar reported in (1996) 9 SCC 1 and exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case. It was further noted that the decision of P S Rajya's case which was rendered by the Bench consisting of two learned Judge was distinguished in a subsequent decision in the case of State Vs. L Krishnamohan which was again rendered by the two Judges and accordingly held that the decision in PS Rajya's case was not an authority for the presumption exoneration that in departmental proceeding ipso facto would lead to a judgment of acquittal in a criminal trial.

10. The Hon'ble Apex Court in Hyder Consulting (UK) Ltd. Vs. State of Orissa reported in (2015) 2 SCC 189 has held that a decision can be said to be given per incuriam when the court of record has acted in ignorance of any previous decision of its own, or a subordinate court has acted in ignorance of a decision of the court of record. Therefore the decision of State (NCT of Delhi) which has not taken into account and consideration of the earller decision of the Supreme Court in Radheshyam is said to be per incuriam.

11. The Full Bench of this Court in the case of Govindanaik G Kalaghatigi Vs. West Patent Press Co. Ltd. has held that where there is a conflict between two decisions of the Hon'ble Supreme Court of the same Bench strength, it is latter of the decision that would prevail. The decision of the Bench consisting of three Judges in the case of Ashoo Surendranath

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Tiwari would prevail over the decision in the case of State (NCT of Delhi) rendered by consisting of three Judges which is a latter judgment. Though the decision of the State (NCT of Delhi) was unanimous and whereas in the case of Radheshyam Kejriwal, it was a majority of 2:1, the total strength of the Bench that they decided the case is deemed to be the Bench strength of that decision despite dissenting opinion as held by the Hon'ble Supreme Court in the case of Shanti Fragrances Vs. Union of India reported in (2018) 11 SCC 305.

12. Therefore, in view of the ratio enunciated by the Hon'ble Apex Court, the impugned criminal proceeding cannot be continued against the petitioner who has been exonerated on identical charges in the departmental enquiry, the underlying principle being higher standard of proof in criminal cases.

13. Accordingly, the petition is allowed. The impugned proceedings in Special Case No.5/2021 pending on the file of learned Prl. District and Session Judge, Bagalakote, is hereby quashed.

Sd/-

(HEMANT CHANDANGOUDAR) JUDGE

JTR Ct:vh