SRI SOMASHEKARAPPA vs. THE SUPERINTENDENT OF POLICE

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W.P.No.100474 of 2022

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 06TH DAY OF JULY, 2022 BEFORE THE HON'BLE MR JUSTICE V.SRISHANANDA WRIT PETITION NO.100474 OF 2022 (GM-RES) BETWEEN: SRI SOMASHEKARAPPA, S/O LATE CHOWDAPPA, AGED 63 YEARS, OCC: RETD.JOINT COMMISSIONER OF EXCISE, R/O. #001 GROUND FLOOR, AHMAD SOLITAIRE CUNNINGHAM CROSS ROAD, VASANTH NAGAR, BENGALURU-560 051. …PETITIONER (BY SRI. KAPAHI BUNTY RAJKUMAR AND SRI AMIT SHARMA, ADVOCATES)

AND: 1. THE SUPERINTENDENT OF POLICE, KARNATAKA LOKAYUKTA, BELAGAVI DISTRICT-590002. 2. THE INVESTIGATING OFFICER AND DY.S.P. KARNATAKA LOKAYUKTA, BELAGAVI LOKAYUKTA POLICE STATION, BELAGAVI. 3. THE GOVERNMENT OF KARNATAKA, THROUGH PRINCIPAL SECRETARY FINANCE DEPARTMENT (EXCISE), VANIJYA THERIGE KARYALAYA,

ANNAPURNA CHINNAPPA DANDAGAL Digitally signed by ANNAPURNA CHINNAPPA DANDAGAL Location: High court of Karnataka, Dharwad Bench, Dharwad

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1ST MAIN ROAD, GANDHINAGAR, BENGALURU-560009. …RESPONDENTS (BY SRI. SANTOSH B.MALAGOUDAR, ADVOCATE FOR R1 & R2; SRI RAMESH CHIGARI, HCGP FOR R3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 CR.P.C., PRAYING TO (A) ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT OR ORDER AND THEREBY BE PLEASED TO SET-ASIDE THE IMPUGNED ORDER DATED 03.02.2020, PASSED BY LEARNED TRIAL COURT i.e. IV ADDL. DISTRICT AND SESSIONS JUDGE, SPECIAL JUDGE (PCA) BELAGAVI IN SPL. CASE NO.91/2016 AND TO DISCHARGE THE ACCUSED IN ABOVE CASE (ANNEXURE-A), AND/OR IN THE ALTERNATIVE; (B) ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT OR ORDER AND THEREBY BE PLEASED TO SET-ASIDE THE IMPUGNED ORDER DATED 03.02.2020 PASSED BY LEARNED TRIAL COURT i.e. IV ADDL. DISTRICT AND SESSIONS JUDGE, SPECIAL JUDGE (PCA) BELAGAVI IN SPL. CASE NO.91/2016 AND TO REMAND BACK THE MATTER TO THE SANCTIONING AUTHORITY FOR PASSING AN ORDER ON GRANT OF SANCTION FOR PROSECUTION OF THE ACCUSED/PETITIONER HEREIN AFTER CONSIDERING THE GROUNDS TAKEN BY THE PETITIONER (ANNEXURE-A), AND/OR IN THE ALTERNATIVE; (C) ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT OR ORDER AND THEREBY BE PLEASED TO SET-ASIDE THE IMPUGNED ORDER DATED 03.02.2020 PASSED BY LEARNED TRIAL COURT i.e. IV ADDL. DISTRICT AND SESSIONS JUDGE, SPECIAL JUDGE (PCA) BELAGAVI IN SPL. CASE NO.91/2016 AND TO REMAND BACK THE MATTER TO THE LEARNED TRIAL COURT FOR RECONSIDERING THE APPLICATION OF PETITIONER FOR SEEKING DISCHARGE AFTER CONSIDERING THE GROUNDS TAKEN BY PETITIONER IN THE PRESENT PETITION AND/OR IN THE APPLICATION UNDER SECTION 227 OF CR.P.C. DATED 15.03.2019 SEEKING DISCHARGE AT ANNEXURE-R.

THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

Heard Sri Amit Sharma, learned counsel for the petitioner and Sri Santosh B.Malagoudar, learned counsel for respondent Nos.1 and 2 and learned High Court Government Pleader for respondent No.3. Perused the records on admission. 2. The present petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 Cr.P.C., with the following prayers: (a) Issue a writ in the nature of certiorari or any other writ or order and thereby be pleased to set-aside the impugned order dated 03.02.2020, passed by learned trial Court i.e. IV Addl. District and Sessions Judge, Special Judge (PCA) Belagavi in Spl. Case No.91/2016 and to discharge the accused in above case (Annexure-A), and/or in the alternative; (b) Issue a writ in the nature of certiorari or any other writ or order and thereby be pleased to set-aside the impugned order dated 03.02.2020 passed by learned trial Court i.e. IV Addl. District and Sessions

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Judge, Special Judge (PCA) Belagavi in Spl. Case No.91/2016 and to remand back the matter to the sanctioning authority for passing an order on grant of sanction for prosecution of the accused/petitioner herein after considering the grounds taken by the petitioner (annexure-a), and/or in the alternative; (c) Issue a writ in the nature of certiorari or any other writ or order and thereby be pleased to set-aside the impugned order dated 03.02.2020 passed by learned trial Court i.e. IV Addl. District and Sessions Judge, Special Judge (PCA) Belagavi in Spl. Case No.91/2016 and to remand back the matter to the learned trial court for reconsidering the application of petitioner for seeking discharge after considering the grounds taken by petitioner in the present petition and/or in the application under Section 227 of Cr.P.C. dated 15.03.2019 seeking discharge at Annexure-R. 3. Facts in brief which are very much necessary for disposal of the present petition are as under:-

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Upon the credible information, the petitioner herein was kept under watch by the respondents- Lokayukta Police with regard to the accumulation of the wealth other than the legal sources and the check period was 23.03.1997 to 21.07.2011. After the check period is over and verification of the material collected by the investigation agency, case came to be registered for the offence punishable under Section 13(1)(e) of the Prevention of Corruption Act, 1988 in Crime No.18/2011 by the Lokayukta Police, Belagavi district. The matter was investigated and during the course of investigation petitioner was enquired and the documents furnished by the petitioner were taken into consideration by the investigation officer and ultimately the investigation officer is of the opinion that the petitioner has accumulated the assets beyond known sources of income to the extent of 279.83%. 4. Thereafter, the learned Special Judge took cognizance of the offence alleged against the

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petitioner and secured the presence of the petitioner and framed charges. Accused pleaded not guilty. In order to prove the case of the prosecution, prosecution has already commenced the leading of evidence and it is submitted that investigation officer has been examined in chief and the matter is set-down for cross-examination of the investigation officer on 07.07.2022. 5. The action of taking cognizance and proceeded ahead with the case of the petitioner is questioned by the petitioner in this petition with the following grounds: • That the Ld. Trial Court vide impugned order dated 03.02.2020 dismissed the detailed application dated 15.04.2019 for discharge filed by the Petitioner merely by mentioning that same can be decided in the course of trial and burden of proof is on the accused/ Petitioner herein to show that Lokayukta has miscalculated his source of income and thus posted the matter for framing of

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charge. It is pertinent to mention that order passed by Trial Court is completely not tenable as putting the burden of proof on the Accused/ Petitioner herein as well as ignored admitted documents at the stage of charge merely by saying that the same can be considered during the course of trial. • That the Ld. Trial Court has not considered that in the case of disproportionate assets, Ld. Trial Court is required to consider documents seized by the Investigating Officer during the course of investigation, though not relied by the prosecution i.e. documents with respect to Income Tax Returns of other independent and major earning family members of the Petitioner as well as various receipts with respect to independent earnings of the other independent family members of the Petitioner. It is the duty of the Ld. Trial Court as well as Sanctioning Authority to ascertain that income and expenses calculated by the Investigating Officer has to be basis and calculated on the

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established principal and should not be basis on mere assumption of Investigating Officer. In the present case, Ld. Trial Court merely avoided this very essential exercise of verifying or ascertaining the calculation made by the Investigating Officer with respect to income and expenditures of the Petitioner merely by saying that same can be done during the course of trial and surprisingly put burden of proof on the accused/Petitioner herein. • That the Ld. Trial Court has failed to appreciate that this Hon'ble Court as well as Hon'ble Supreme Court has held that framing of charge has serious consequences as its extends to monetary loss and disrespect in society, sacrifices of time and efforts to prepare defence and anxiety of uncertain time. Ld. Trial Court failed to appreciate that the Criminal Trial should not be second to motion as a matter of course without adequate and necessary investigation of facts or mere suspicion or when violation of law is doubtful. It is the duty and

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responsibility of the public officer to proceed responsible and ascertain the true and correct facts which may otherwise result in an innocent being prosecuted. • That the Ld. Trial Court has failed to consider the detailed application for discharge filed by the Petitioner thereby Petitioner explained that since his son is aged about 37 years old who is admittedly working as Real Estate Agent from 2006 called ASG Finance and ASG Enterprises and same has been duly verified by the 10 from the Income Tax Department. Similarly, Petitioner's daughter is aged about 32 years who is admittedly qualified as a graduate and wife of the Petitioner is also earning and the Investigating Officer has also verified the Income Tax Returns of the wife of the Petitioner from the year 1999 to 2011, for a total sum of Rs.15,62,479/-. It is pertinent to note that all of them duly filing their separate and independent respective income tax return from the year 1999. Despite the

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fact of independent earning of the working son, daughter and wife of the Petitioner, the Investigating Officer has considered all of them on the dependent on the Petitioner and thereby increased the household expenditure of the Petitioner despite the fact that all of them were major and earning independently and contributing towards household expenses. • That the Ld. Trial Court has failed to appreciate the fact that since it is not the case of conspiracy and the Petitioner is the only accused in the present case, therefore, considering the assets of independent earning of the family members as an assets of the Petitioner cannot be permissible as per law. • That the Ld. Trial Court as well as Sanctioning Authority has failed to appreciate that even the Hon'ble Supreme Court in the case of "Akhilesh Yadav Vs. Vishwanath Chaturvedi & Ors." decided on 13.12.2012, held that since the wife of the Petitioner namely Dimple Yadav neither hold any post

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under the government nor she was involved in any activity of her husband or father in law. The acquisition of wealth by her was attributed to her agriculture income and not to any source of income through her husband and her father in law. She was essentially a private person notwithstanding her proximity to Sh. Akhilesh Yadav and Sh. Mulayam Singh Yadav. The Hon'ble Supreme Court as of the view that the investigation launched against her on the issues of amassing wealth beyond her known source of income, is liable to be dropped. • That the Ld. Trial Court/ Sanctioning Authority has failed to appreciate the fact that if assets of the earning family members would be considered as assets of the Petitioner then, it would lead to serious consequences as individual property getting tainted or possibility of attachment by authorities without even hearing or notice to them. It is pertinent to note that independent family member of the Petitioner has approached this

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Hon'ble Court vide Writ Petition No.48841-48843/2015 seeking release of seized articles and material in the proceedings in CR No.14/2011 as all of them were earning independently and the Hon'ble High Court allowed the same vide order dated 03.02.2017 and even the Hon'ble Supreme Court dismissed the SLP filed by State in SLP Diary No.25859 of 2017 vide order dated 23.10.2017. • That the Ld. Trial Court as well as Sanctioning Authority have failed to appreciate that it is the case of disproportionate assets with regard to income and expenditure wherein it is the admitted case that wife, son and daughter of the Petitioner are earning independently despite the fact investigating officer take down the complete value of the household articles in the column of expenditure. It is pertinent to note that despite the fact that son, daughter and wife of the Petitioner are earning even though Investigating Officer put complete family

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maintenance expenses on the Petitioner only. • That the Ld. Trial Court as well as Sanctioning Authority have failed to appreciate that Investigating Officer has calculated the expenses incurred by the family is Rs.84,22,348/- and same has been deducted from the income of the Petitioner, whereas it is the admitted case of the prosecution that wife, son and daughter of the Petitioner are also earning independently. • That the Ld. Trial Court as well as Sanctioning Authority have failed to appreciate that movable articles of the house have been considered as an assets of the Petitioner, though, all the articles were overvalued without any basis. Further, since it is the joint family but I.O. has failed to consider and calculate the amount incurred by other family members of the Petitioner from their independent sources of income towards purchase of movable articles of the house.

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• That the Ld. Trial Court/ Sanctioning Authority have failed to appreciate that it is not the case of conspiracy where family members of the Petitioner are involved as an accused. Neither it is the case of the prosecution or the Investigating Officer that family members of the Petitioner are involved in any offence, despite this assets purchased by them from their own independent source of income has been considered as the assets of the Petitioner without any basis. "Akhilesh Yadav Vs. Vishwanath Chaturvedi & Ors." supra. • That the Ld. Trial Court has not considered the facts of the case which shows that there is no case of disproportionate assets qua income and expenditure more specifically mentioned in paras (ix)to (xii) of the ground of the Application dated 15.04.2019 filed under Section 227 Cr.P.C. by the Petitioner. The ld. Trial Court has not given even a single finding on the specific stand taken by the Petitioner with regard to non-

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consideration of independent income of son, daughter and wife of the Petitioner and expenses incurred by them in household. • That the Ld. Trial Court/ Sanctioning Authority have failed to appreciate the fact that the Petitioner's wife's business income declare under Income Tax Act (Money received by cheque through the Bank) is Rs.36,00,000/-. Further the wife's income received from business Rs.59,59,897/ (credited directly to the bank) and bank interest for the same is Rs.4,20,588/-, Total 63,80,455/-. Therefore, wife income of about Rs.64,00,000/- out of the mentioned amount mentioned in schedule of Rs.66,10,455/- came through verified bank channels. Further, the income received by son through cheques duly deposited in is Rs.38,00,000/-. The TDS is also deducted for the same. Daughter's income given by mother. Rs.6,00,000/-. • That the Ld. Trial Court/ Sanctioning Authority have failed to appreciate the

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fact that the Investigating Officer has not considered the salary received by the Petitioner before joining the present service and he ignored the salary of more than 10 days received by the Petitioner when he was employed in State Police Services, the GPS withdrawal of Rs.5,00,000/-, income from Reward Money given by State Govt. of Rs.2,62,000/-. Income from Leave Encashment during the check period is Rs.1,45,749/-. Receipt of loan from father of the Petitioner of Rs.3,50,000/- as the same was declared by the Petitioner from the beginning of check period in the year 1997 and till the death of his father in the year 2000. Expenses towards stay in hotel in the year 2011 Rs.52,500/- has been considered by the Investigating Officer as an expenses incurred by the Accused, though, the same is still pending and no amount has been paid towards stay in EEFA Hotel in 2011. • That the Ld. Trial Court/ Sanctioning Authority have failed to consider the

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expenditure on dogs were calculated as Rs.11,36,100/- without any basis, material and record and amount was mentioned just on the presumption of Investigating Officer. It is further submitted that dogs were in fact adopted by the son of the Petitioner who himself is taking care of dogs without any support of the Petitioner. Even otherwise, amount of Rs.11,36,100/- cannot be considered as an expense only on the part of the Petitioner despite the fact that the Petitioner's family have four independent earning members including Petitioner. • That the Ld. Trial Court/ Sanctioning Authority have failed to consider the amount recovered from the driver of the Petitioner i.e. Rs.9,98,697/- has been added in the assets of Petitioner despite the fact that Hon'ble High Court quashed the Cr.No.14/ 2018 on the ground of illegal search and seizure. • That the Ld. Trial Court /Sanctioning Authority have failed to appreciate that the basis or very foundation of Cr.

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No.18/2011 is dependent on illegal search and seizure conducted in the Cr. No.14/2011. Investigating Office relied upon the investigation/ inquiry search and seizure conducted in Cr. No.14/2011 on the house of the Petitioner which was duly declared illegal by Hon'ble High Court. Then the documents or case property attached in illegal search and seizure cannot be valued for the purpose of calculating income and expenditure incurred by the Petitioner while calculating the case of disproportionate assets qua income and expenditure of the Petitioner. • That the Ld. Trial Court/ Sanctioning Authority have failed to appreciate that the material collected during illegal search and seizure cannot be relied upon in another case FIR, arising out of the FIR which has already been quashed by the Hon'ble High Court on the ground of illegal search and seizure. • That the Ld. Trial Court/ Sanctioning Authority have failed to appreciate that prosecution case is totally depend upon

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the photocopy of the documents which cannot be considered as an evidence, therefore cannot be relied upon at the stage of the charge. 6. Reiterating the grounds urged in the petition, Sri Amit Sharma, learned counsel for the petitioner vehemently contended that the investigation officer while computing the amount in excess than the known source of income to the prosecution arrived at 279.83% is per se illegal inasmuch as the investigation officer failed to take into consideration the properties possessed by the wife and children of the petitioner which were held by them exclusively without any contribution being made by the petitioner and therefore sought for allowing the petition. He also pointed out that time and again, the Hon’ble Apex court and this Court has held that when a formal proof is available on record to show that the property of the kith and kin of the accused is held exclusively and acquired by them through independent source other than the income

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of the petitioner, such properties must be excluded while computing the assets for the purpose of the investigation of an offence under Section 13(1)(e) of the Prevention of Corruption Act, 1988 and in the present case, the investigation officer with ulterior motive though formal proof was provided to them by the wife and children of the petitioner is acquired by them exclusively out of their income, has filed a false charge sheet against the petitioner and therefore, sought for interference of this Court in this petition. 7. Per contra, Sri Santosh B.Malagoudar, learned counsel for respondents-Lokayukta vehemently contended that the investigation officer did take into consideration all relevant materials in its wisdom and under his competence in accordance with law, arrived at the assets held by the petitioner is in excess of 279.83% than the sources known to the prosecution and therefore present petition

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cannot be entertained by this Court by holding a mini trial and sought for dismissal of the petition. 8. With the above rival contentions of the parties, this Court perused the materials on record meticulously. 9. Admittedly, the petitioner is a government servant and a salaried employee. His check period was 23.03.1997 to 21.07.2011. The investigation agency after closely verifying the assets held by the accused-petitioner, initially registered the case in Crime No.18/2011 and investigated the matter in detail. While so investigating the matter, investigation officer has enquired the petitioner and also took into consideration the documents furnished by the petitioner and thereafter, is of the prima facie opinion that the explanation offered by the petitioner is not sufficient and therefore, the assets held by the petitioner according to the investigation agency is in excess to the tune of 279.83% than the sources known to the prosecution.

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India was given the liberty to take further steps depending upon the outcome of the preliminary inquiry into the assets of the said respondents. Since, the CBI is an independent body and is under no obligation to report to the Union of India in regard to investigations undertaken by it, the direction to submit a report of the inquiry to the Union of India and the liberty given to the Union of India to take further steps on such report is not contemplated in the scheme of the Delhi Special Police Establishment Act, 1946. It is for the CBI to decide what steps it wishes to take on the basis of the inquiry conducted. We, therefore, modify the order dated 1st March, 2007, and direct that the directions given to the CBI to submit a report of its inquiry to the Union of India and the liberty given to the Union of India to take further steps on such report, be deleted from the order. 32. The review petitions are disposed of with the following directions : i) The CBI shall drop the inquiry into the assets of the Respondent No.4, Smt.Dimple Yadav, wife of Shri Akhilesh Yadav; ii) The CBI may take such independent action, as it considers fit, on the basis of the inquiry conducted by it pursuant to the directions given by this Court in the judgment under review, without seeking any direction

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from the Union of India or on the basis of any direction that may be given by it.” 11. There cannot be any dispute as to the principles of law enunciated by the Hon’ble Apex Court in the case of Akhilesh Yadav (supra). To appreciate the rival contentions of the parties, it is just and necessary to cull out Section 13(1)(e) of the P.C. Act, which reads as under: “13(1)(e) – if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.”

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substantiate the offence alleged against the petitioner, the defence has to place contra materials on record if it chooses to do so. However, burden of proving that sources known to the prosecution is always on the complainant itself and that burden is to be discharged by the prosecution by way of defence. Having said thus, by way of defence, the defence may choose to establish before the Court that the prosecution materials itself would not be sufficient to arrive at a conclusion that the accused has possessed the assets more than his known source of income to the tune of 279.83% or he may place such materials on record whereby the prosecution has misread itself in computing the assets held by the accused. That such an exercise is to be carried out only during the trial. After conclusion of the recording of the evidence of prosecution and defence if any, the Court has to draw a comparative table wherein the Court has to find out whether at the end of trial the accused is

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still holds assets more than his known source of income. 13. Therefore, the recording of evidence is a must to arrive at such a conclusion. This Court while treating the petition of the present petitioner which is filed under Articles 226 and 227 of the Constitution of India read with Section 482 Cr.P.C. cannot undertake such an exercise. Rather, it is too premature for this Court to arrive at any conclusion. However, there is some force in the argument advanced on behalf of the petitioner that the observation made by the trial Court that the burden is on the accused cannot be countenanced in law having regard to the discussion made above. 14. Resultantly the grounds urged in the petition at this stage would not sufficient to grant the petition prayer as referred to supra. Accordingly, following:-

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ORDER The petition is dismissed. The observation made by this Court during the course of this order shall not influence the trial Court while passing the final order. Further, all contentions of the parties are kept open to be urged during the trial.

SD/- JUDGE

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