DR G MADEGOWDA vs. STATE OF KARNATAKA

4 identified for acquisition by KIADB in the form of entering into an agreement of sale or acquiring GPA from the land owners with an intention to utilize the same for collecting hectic compensation from KIADB as and when the said lands are acquired through persons set up by him, thereby depriving the land owners of their valuable right to get rightful compensation for the lands which are acquired in the process making unlawful gain for his friends and relatives as well as to benefit himself in the bargain by getting hectic compensation for the lands which are under agreement of sale to them or in their custody as GPA holders. 4. The second allegation is with reference to misappropriation of an amount of Rs.18 crores (17.97 crores to be precise), while carrying civil work on the lands, which are acquired to KIADB

5 through friends and relatives of accused in Bidadi, more specifically with reference to lands, which are allotted to Toyota Kirloskar Motors Limited (for short ‘ TKML’). The basis for arriving at the figure of mis-appropriation of Rs.18 crores is as concluded by the Controller and Auditor General of India in its report of the year 2002 (for short ‘CAG report’). 5. It is also complainant’s case that, Institute of Public Auditors of India (for short ‘IPAI’) has fixed the responsibility in the aforesaid misappropriation on the accused. 6. The third allegation in the complaint is that, disproportionate assets accumulated by the accused in his name and in the name of his family members to an extent of Rs.193 crores as computed by the complainant on the basis of sale deeds under which accused and various other

6 members of his family have acquired 125 properties during the years 1989-1999. 7. Based on this complaint, the Court has ordered to refer the matter for investigation under Section 156(3) of Cr.P.C.. The Investigating Officer who is the Superintendent of Police submitted B- report dated 19.01.2002 and the Court below after considering the material passed the order dated 07.01.2013 in accepting the said B-report. The same has been questioned in this proceeding. 8. The contention of the petitioner before this Court is that, the impugned order is passed without pursuing the entire final report and the documents produced by Investigating Officer and also the order suffers from non application of mind to the allegations and accusation in the complaint and also the offences invoked against the accused, while accepting the B-report; the

7 Trial Court did not discuss the material available on record and also the relevant penal provision invoked against the accused. The Trial Judge without assigning any reasons either for its acceptance or for not finding any valid reasons to dis-agree with the B-report, the Special Judge proceeded to pass the order impugned. The said order is passed mechanically without application of mind and also without perusing the complaint averments and Investigation Report. It is also contended that, the Investigation Officer has not called upon the complainant to give his statement and also not collected the particulars regarding the person who could throw light on the said acquisition in the process of investigation. The complainant is totally kept in dark and only the accused, his friends and relatives were summoned and their statements were recorded and consequently submitted the B-report. The

8 petitioner’s counsel in support of his contention, relies upon the following Judgments: (i) 1990 (3) SCC 655 (K.Veeraswamy Vs. Union of India), relevant paragraph Nos.75 & 76. (ii) 1996(1) SCC 542 (State of Maharashtra Vs. Ishwar Kalapatri and others) relevant paragraph 15. (iii) 2007 (7) SCC 227, (N.P.Zariya Vs. State of Madhya Pradesh) relevant paragraph 16. 9. The counsel relying upon the above Judgments would try to substantiate that there is total violation on the part of Investigating Officer in not properly conducting the enquiry and not coming to a proper conclusion. It is contended that, when the acquisition of nearly 44.21 acres is

9 found, the material which would demonstrate that, is not properly appreciated. The Investigating Officer did not conduct proper investigation. When there is sufficient material available on record, there is a deliberate attempt to dilute the same in projecting the acquisition as if by a person having sufficient income. The Investigating officer has conveniently ignored the fact that friends and relatives of the accused are not residents of Bidadi, but they are residents of Mandya and there is no previous record of these people having acquired the lands outside the place where they are residing for the purpose of investment and also ignored the fact that timing with reference to their acquisition of lands, particularly at Bidadi, which is in the background of entire area being identified for the purpose of acquisition of lands for formation of industrial estate in the said place.

10 10. The second argument with regard to the misappropriating the amount to an extent of Rs.18 crores from KIADB where he was working as CDO and utilizing the said money for civil works with reference to the lands acquired in designated Bidadi Industrial area which was subsequently allotted to TKML. The CAG report would indicate the mis-appropriation of aforesaid funds by the accused. Even in spite of such report being made available to the Investigation Officer, he has not bothered to verify the correctness or otherwise of the said report and tried to find out how explosion was carried out with purchasing the required explosive for excavating and blasting 8.94 lakh cubic meter of hard rock. The entire CAG report is not at all touched by the Investigating officer and also he does not give any explanation for not looking into the misappropriation of Rs.18 Crores.

11 11. In respect of third allegation, the counsel would contend that in all 125 properties are acquired by the accused and his family members i.e. himself, his wife, his younger son, who was between the age of 13-23 years between 1989-99 and his three daughters and also in the name of his in-laws family and also in the name of his minors daughters and the same is not at all investigated by the Investigating Officer. No effort is made to correlate the investment made by such people to the source emanating from the accused and other members of his family. The counsel would contend that, Special Judge ought to have scrupulously scrutinized the material placed before it and there is total failure on the part of the Special Judge. In fact, the Special Judge does not even go through the material on record and discuss the same meticulously with reference to the allegations made in the complaint and instead

12 of the portion of B-report is culled out in its order as apart of its finding and accept the same without any discussion. The very order impugned is illegal and it requires interference of this Court and set aside the same and remand the same for fresh hearing. The counsel also in support of his case relied upon several Judgments. 12. Per contra, the counsel appearing for the respondent Sri. Venkatesh Dalawai who appears for first respondent would contend that, first item of allegation regarding misappropriation of funds to the tune of Rs.18 crores is with reference to Civil work said to have carried out in some portion of land at Bidadi. The decision regarding taking up of civil work in the specified survey numbers of Bidadi is the decision of KIADB and it is not independent decision of accused as CDO.

13 13. The counsel also would try to impress upon this Court that, Investigating Officer has collected material with reference to the said work and has come to the conclusion regarding the collective decision of Board of KIADB in undertaking the said work and entrusting the same to a contractor, who is identified by the Board and it is the board which has finally approved the payment after considering the bills which are placed before it. With reference to the second allegation the counsel would contend that, the report of Investigation officer is wanting in nature for the reason that Investigation officer has mislead himself to believe that all the money shown in the income tax returns and wealth tax returns are the properties of accused, for which he has paid income tax and wealth tax. The report also discloses the loan borrowed from private

14 individuals by the family members of the accused and report at page 125 to 130 discloses the same. 14. Learned Counsel also would contend that the chart which is there would indicate borrowing of `5,00,000/- from one B.Krishnappa for the year 1997-98 and the same is reflected in the wealth tax for the year 1998-99. He further took this Court through page Nos.191 and 192 of the report, wherein at page 192 at Sl.Nos.4 to 7 there is reference to this B.Krishnappa as one of the GPA holder of purchaser of various lands at Bidadi during the relevant period i.e., January 1997 to June 1997 where he has acquired properties which are subsequently acquired by KIADB and a sum of `75,00,000/- is awarded to him as compensation. The counsel also brought to the notice of this Court page No.131 where there is statement of income derived by way of gift

15 which is at page No.45.1, wherein at item Nos.1 to 3, the very same Krishnappa who has received compensation from KIADB to the tune of `75,00,000/-, has gifted a sum of `35,00,000/- to three of the family members of accused between November 1998 to March 1999. Similarly, another person by name H.P.Nagendra, whose name is shown at page No.192 at Sl.Nos.8 and 9 has received the compensation from KIADB to the tune of `1,46,00,000/- and that person has given hand loan of `30,00,000/- to the accused and so far as balance amount, there is no reference. In the same page, i.e., 192, at Sl.No.3, one G.Manjunath has received compensation from KIADB to the tune of `12,00,000/- and the entire amount which was received by him is given to the members of accused family by way of hand loan. The counsel also taken this Court through Sl.Nos.1 and 2, which is at the end of page No.191 and beginning

16 of page No.192 of the report, wherein one G.Prabhakar, who has received a sum of `24,00,000/- compensation has given `5,00,000/- as hand loan to the accused. The counsel referring to these entries would contend that, the Investigating Officer has taken note of all these and looked into the transactions with reference to purchase of 44.21 acres of land by accused and his family members. The Investigating Officer conducted thorough investigation and filed the report. 15. The counsel would further contend that regarding Benami properties, which are referred to at page No.141 of the report, at paragraph No.56.1 onwards it is stated that the title deeds of 125 items of properties found in the residence of accused belonging to 17 persons shown in paragraphs No.56.1 to 71.1 which ends at page

17 No.191 of report does not belong to the accused as rightly pointed out by the investigation officer in his B report and merely because the said documents are found in the house of the accused would not mean that they are the properties owned by accused and held in Benami with aforesaid 17 persons. Therefore, to that extent the report of the Investigating Officer is just and proper and the same has been accepted by the Special Court Judge is justified. 16. The counsel appearing for the contesting respondent/accused Sri Sandesh Chouta, in his arguments vehemently contended that, the accused who gave up his job as CDO of KIADB and entered the arena of politics, there was a serious discomfort to the complainant which was not tolerated, more particularly his success in the electoral field in getting elected to the post of

18 Member of Legislative Assembly from the constituency, which is coming within the parliamentary constituency represented by him. In the enmity which has grown from leaps and bounds to reach this stage and hence, a false complaint is filed and the complaint is not first of its kind. Again its origin is seen in a complaint by one Mr.Sampath. So far as complaint by Mr.Sampath is concerned, it is closed and the complaint which was given by complainant had evinced a reply dated 5.2.2007 by the Secretariat of Governor, wherein it was observed that since there is no complaint pending as on that day, the same cannot be proceeded by Lokayuktha, therefore, three options were given to the complainant to choose one of them i.e., liberty to approach the court by filing a complaint before Lokayuktha and the other one is seeking Government to refer the matter to Lokayuktha.

19 With this, the complainant’s complaint got closed. Thereafter, litigation commenced in the complainant filing writ petition in WP.No.5728/2008 on the very same grounds and seeking the matter for investigation by CBI. The same was withdrawn with liberty to file a fresh writ petition instead of pursuing the said complaint. The complainant had filed two writ petitions through two different advocates i.e., W.P.No.10162/2008 and W.P.No.11641/2008 for similar relief. Both the writ petitions were clubbed and disposed of by common order dated 13.7.2009, wherein it was observed that complaint which is filed earlier by complainant pending before Lokayuktha could be pursued and at the same time points which are raised are pending consideration in the form of CAG report being pending for debate on the floor of the house. Therefore, the writ petitions are premature and

20 accordingly, both writ petitions were closed and subsequently complaint also came to be disposed of by Lokayuktha on 6.7.2009. Thereafter for 1½ years the complainant did not pursue the matter and it is only thereafter in the year 2011, the complainant had taken out fresh round of litigation for the second time after conclusion of three writ petitions filed earlier and one complaint before the Lokayuktha being closed invoking section 200 of Cr.P.C., before the Special Judge, which has resulted in referring the matter for investigation. 17. The counsel, in support of his arguments, relied upon the judgments of this Court in the matter of A.V.Amarnathan Vs. The Registrar, High Court of Karnataka, reported in ILR 1999 KAR 478 and also the Full Bench decision of this Court in the matter of State of Karnataka vs.

21 B.Krishna Bhat and Ors., reported in ILR 2001 KAR 2030 and referring to these two judgments, tried to impress upon this Court that this petition was initially filed as Crl.P.2928/2013 challenging the order dated 7.1.2013 rendered on P.C.No.2/2011 on the file of Special Court, Bengaluru, challenging the acceptance of B report. The said criminal petition was converted into a writ petition, vide order dated 6.12.2013 and hence, this writ petition is numbered into W.P.No.2943/2014. 18. The bone of contention on behalf of the contesting respondent is that the averments made in the petition filed earlier and the relief sought in the present petition cannot be granted, the only option available to this Court is either to return the petition to the petitioner directing him to classify the same as Public Interest Litigation and

22 to re-file it with an additional set to be placed before the Division Bench or in the alternative to direct the registry to classify the same as Public Interest Litigation and the same has not been done. 19. The second bone of contention is that referring the matter for investigation to CBI is not a routine thing. It has to be done with utmost restraint and a right which has to be exercised by the court sparingly and cautiously. In support of his contention, he relied upon the judgment in the matter of Secretary, Minor Irrigation & Rural Engineering services UP & Ors., vs. Sanhngoo Ram Arya & Ors., reported in (2002) 5 SCC 521. The counsel referring to the said judgment brought to the notice of this Court paragraphs No.5 and 6 and tried to state that unless there is breach of fundamental right under Article 21 of the

23 Constitution of India, where there is a threat to life and liberty of an individual referring the matter to CBI should not be done in a casual manner. 20. The counsel also referring to the judgment in the matter of State of West Bengal & Ors., vs. Committee for Protection of Democratic Rights, West Bengal & Ors., reported in (2010) 3 SCC 571, which is a Constitution Bench judgment of the Apex Court and in that judgment while discussing the contentions raised in the said matter, in paragraph No.7, concluded the same at paragraphs No.68 and 70 with regard to the procedure in which the courts should exercise the discretion. 21. The counsel also relied upon the judgment in the matter of Narmada Bai vs. State of Gujarat & Others, reported in (2011) 5 SCC 79,

24 to demonstrate that under what circumstances the extreme step of referring the matter to CBI can be considered. Referring to this judgment, the counsel would contend that there is no any scope for referring the matter to CBI. There is no any public interest is involved in the matter and the present complaint is only on account of political vendetta and there is no thereat to the life or liberty of the petitioner in initiating these proceedings seeking the matter for further investigation by the CBI and hence there is no any ground to set aside the order impugned. The Investigating Officer has collected the material and rightly comes to the conclusion that there is no any material to proceed with the case and only with an intention to harass the contesting respondent, the present petition is filed.

25 22. The counsel would also contend that in order to maintain a criminal petition under section 482 of Cr.P.C., there is no scope to quash the same and the order impugned is revisable order under section 397 and 401 of Cr.P.C. In support of his contention he relied upon the judgment in the matter of Vali & Ors., vs. Vali Mohd. & Ors., reported in 1979 WLN 120 and also relied upon the judgment in the matter of Janata Dal vs. H.C.Chowdhary & Ors., reported in (1992) 4 SCC 305, wherein a discussion was made with regard to exercising the inherent powers of the High Court under Section 482 of Cr.P.C. and that the statute provides revisional powers provided under Section 397 read with section 401 of Cr.P.C. This Court cannot invoke section 482 of Cr.P.C. and also the writ jurisdiction to question the order of accepting the B report. The very

26 invoking section 482 of Cr.P.C. is erroneous and hence the very writ petition is not maintainable. 23. The counsel on merits would contend that the complainant has waived his right to pursue the complaint for the reason that when the B report was submitted by the Investigating Officer, based on the complaint lodged by the petitioner, an opportunity is given to him to file his protest memo and the same was filed which is more in the nature of reiterating the contents of the complaint. Though sufficient time was granted to him to examine the witnesses for recording his sworn statement as contemplated under Section 200 of Cr.P.C., the counsel appearing for the petitioner herein filed a memo citing a judgment reported in 2008 Crl.L.J 428 stating that the court to proceed for referring the matter for further investigation and to reject the report of

27 the Investigating Officer and written argument was also submitted on 25.10.2012, which is contrary to the procedure under Chapter XV of Cr.P.C. and hence the complainant has no right to pursue the private complaint. 24. With reference to finding in CAG report, particularly with reference to paragraph No.6.3, the counsel would submit that report of CAG was placed before the Cabinet for deliberation which was taken up and subsequently a decision was taken to drop the proceedings for the reason that special court had by then passed the order dated 7.1.2013 in accepting the B report. The counsel urging to these grounds would contend that the original complaints registered commencing of check period which is 1983 and concludes in the year 1989. From the end point of check period almost 10 years has been lapsed with variation in

28 the value of properties. Therefore, pursuing this petition almost after a decade is only with an intention to harass the complainant for political vendetta and nothing more than that and hence, this Court has to dismiss the writ petition with exemplary costs. 25. The counsel appearing for the petitioner in response to the arguments of the counsel appearing for the respondent, filed reply arguments by way of written submissions and would contend that the closure of complaint filed by Sampath, a document is produced at document No.6 and with regard to the earlier three writ petitions are concerned, it is contended that the same has not been concluded on merits and the contention that the complainant is silent about how the properties are purchased cannot be accepted. The Investigating Officer has to answer

29 to the questions raised by the petitioner. The accused persons cannot choose as to which investigating agency must investigate the alleged investigation committed by them. The Apex Court in number of judgments held that it is trite law that the accused persons did not have any say in the matter of appointment of an investigating agency and there is absolutely no locus-standi to the accused who has to investigate the matter. Once the B report is filed, the Investigating Officer has no role to play before the Court, so also the role of the public prosecutor prior to taking cognizance. On a perusal of the entire material on record some disturbing facts evident from B report and comes to the conclusion based on income loss and gifts and the very case of the complainant/petitioner is that the contesting respondent has misused his power not only in

30 amassing the wealth and also involved in creation of documents to get the monetary benefit. 26. In support of his contention he also relied upon the judgment in the matter of Bhagwant Singh vs. Commissioner of Police and another, reported in (1985) 2 SCC 537 and brought to the notice of this Court paragraph No.4 of the judgment regarding scope under section 173 of Cr.P.C. regarding taking of cognizance. The counsel also relied upon the judgment in the matter of M/s. India Carat Pvt. Ltd., vs. State of Karnataka and another, reported in (1989) 2 SCC 132 and brought to the notice of this Court paragraph No.13 of the judgment with regard to scope under section 200 or section 202 of Cr.P.C. and referring the matter under section 156(3) of Cr.P.C. and also filing of final report under section 173 of Cr.P.C. and taking of cognizance

31 under section 190(1)(b) of Cr.P.C., so also referred to paragraphs No.16 and 17. 27. The counsel also relied upon the judgment in the matter of Sanjay Bansal and another vs. Jawaharlal Vats and others, reported in (2007) 13 SCC 71 and brought to the notice of this Court paragraph No.4 of the judgment with regard to section 173 and section 190(1)(b) of Cr.P.C. regarding filing of final report and taking the cognizance. The counsel also relied upon the judgment in the matter of Veerappa and others vs. Bhimareddappa, reported in ILR 2002 KAR 1665 and brought to the notice of this Court paragraph No.6 of the judgment with regard to scope under section 156(3) of Cr.P.C. and under section 200 of Cr.P.C. The counsel also brought to the notice of this Court paragraph No.6 of the judgment with regard to B summary report.

32 28. The counsel also relied upon the judgment in the matter of Central Bureau of Investigation vs. State of Gujarat, reported in (2007) 6 SCC 156 and brought to the notice of this Court paragraph No.5 of the judgment, whether direction can be given to CBI under section 156 (3) of Cr.P.C., it is held that magisterial power cannot be stretched under the said provision beyond directing the officer in charge of a police station to conduct the investigation and no such direction can be given to CBI. The counsel also relied upon the judgment in the matter of Central Bureau of Investigation through S.P., Jaipur vs. State of Rajasthan and another, reported in (2001) 3 SCC 333, wherein the question was answered whether the Magistrate has got power to direct the CBI to conduct investigation into any offence and brought to the notice of this Court paragraph No.10 and in this judgment it is held that the

33 Magistrate can only direct an officer in charge of a police station to conduct such investigation and not a superior police officer though such an officer can exercise such powers by virtue of section 36 of Cr.P.C. 29. The counsel also relied upon the judgment in the matter of M.C.Mehta (Taj Corridor Scam) vs. Union of India and others, reported in (2007)1 SCC 110 and brought to the notice of this Court paragraph No.29 wherein it is held that there is no stage during which the Investigating Officer is legally obliged to take the opinion of a public prosecutor or any authority, except the superior police officer in the rank as envisaged in section 36 of the Code. 30. The counsel having referred to these judgments would contend that the principles laid down in the judgments referred supra are aptly

34 applicable to the case on hand and the report submitted by the Investigating Officer is one sided and not examined the complainant and only examined the accused and his relatives and his friends and the B report is one sided report and hence the same has to be quashed and the same has to be referred to other agency for fresh investigation or else to direct the very same agency to conduct fresh investigation. The Special Court also did not apply its mind while accepting the B report and hence requires interference of this Court. 31. Having heard the arguments of the petitioner’s counsel and also the counsel appearing for the respondent, the point that arises for consideration of this Court is whether the Special Judge has committed an error in

35 accepting the B report filed by the Investigating Officer. 32. The main grounds of the petitioner is that the contesting respondent who was working as Chief Development Officer of KIADB by misusing his office in the capacity of CDO of KIADB amassed wealth disproportionate to his known source of income. It is also the case of the petitioner that he hails from a poor agricultural family and he joined the service on 1.4.1974 for a salary of `460/- per month. He resigned from the said post and joined KIADB on deputation. Thereafter he became a permanent employee and worked from 25.7.1989 till 30.7.1999 and took voluntary retirement on 30.7.1999 after amassing disproportionate assets by abusing his position as a public servant. It is also his case that misusing the office of KIADB the accused made huge

36 properties in the name of himself, his kith and kin and relatives through huge corruption, more than 1000 acres of lands were acquired during his tenure and he cheated the land owners, converted the land to his own use, by taking general power attorney from the land owners. 33. It is also the allegation that he transferred the compensation in the name of GPA holders who are all his relatives, kith and kin. The allegations made in the complaint has been extracted in paragraph Nos.2 and 3 of the order of the Special Judge. The Special Judge while considering the allegations made in the complaint and while accepting the B report in the very first paragraph of the order referred the B report filed by the Investigating Officer and did not discuss anything about the allegation made in the complaint while giving its reasons. Instead, it is

37 stated that in B report the Investigating Officer states about the documents pertaining to the CAG report and comes to the conclusion that there was no evidence that the accused person committed lapses with a mala fide intention and mainly relied upon the opinion of the Chief Engineer, C & B PWD South Zone, Bengaluru, by letter dated 13.1.2012 wherein he states that the accused has not committed lapses in the work. The allegation made against the accused is baseless. The Special Judge did not consider the main allegations made in the complaint and only considering such letter comes to the conclusion that the accused has not committed any lapses on his part. 34. Insofar as to the other allegations is concerned, that he has purchased 44.21 acres of land, discussed only with regard to the reference

38 made in B report that he mobilized the funds from borrowing the same and also referred to the assets and liabilities and income tax deductions and comes to the conclusion that the difference is only `4,17,981/- i.e., excess property acquired is only 9.25%. The same is also extracted from the B report of the Investigating Officer and not touched the documents which have been collected by the Investigating Officer while coming to such a conclusion. 35. With regard to the allegation of acquisition of properties, it is referred that having definite source of income the accused acquired the properties out of the income and since the accused hails from an agricultural family, comes to the conclusion that no evidence is available to infer that the accused purchased Benami properties and also no material to come to a

39 conclusion that he has misused his official position and the same has not been proved. 36. For having taken note of the conclusion arrived at by the Special Judge, and the same is nothing but replica of the B report filed by the Investigating Officer. The specific allegations made in the complaint have not been discussed by the Special Judge while accepting the B report. The Special Judge passed a cryptic order and though discussed in paragraphs No.2 and 3 of the order regarding several allegations made in the complaint in proving and while accepting the B report, nothing has been discussed and did not refer to the documents which have been collected by the Investigating Officer. 37. The Special Judge while passing the order accepting B report, initially had discussed with regard to the accusation made against the

40 accused and even did not discuss whether the averments made in the complaint and also the material collected by the Investigating Officer are in consonance with the allegations made in the complaint. No documents are referred in the impugned order in coming to the conclusion that B report filed by the Investigating Officer can be accepted. The Special Judge has not formed any opinion except extracting B report of the Investigating Officer in the impugned order. Without any discussion it has come to the conclusion that the disproportionate property and the wealth which is only 9.25% is caused by his known source of income. While arriving to the said amount also no reason has been assigned and blindly accepted the report of the Investigating Officer and did not meet the allegations made in the complaint.

41 38. On a perusal of the impugned order also though there arespecific allegations referred in paragraphs No.3 and 4 of the impugned order, while concluding in accepting B report, formed an opinion that obviously the investigation is conducted after a period of one decade. While the income of the accused and his family members for the check period will be available in black and white as constant figure. However, no reasons are assigned to come to such conclusion which is arrived at without examining the material on record. Apart from that, it appears, when the Special Judge passes an order under section 156(3) of Cr.P.C. directing the Investigating Officer to investigate the matter and file report, it ought to have examined the material collected by the Investigating Officer which would be sufficient to see whether to proceed against the accused or not and it is the duty of the Court to see that

42 whether the Investigating Officer conducted the investigation in the light of accusation made in the complaint. However, there is no any such reference in the order impugned, where the Court has simply extracted B report in the order impugned and no reason has been assigned while accepting the B report. The main contention of the complainant before the Special Judge as well as before this Court is that the Investigating Officer did not conduct proper investigation and only he conducted the investigation at the instance of the accused and recorded statement of the accused and witnesses those who are friends and relatives of the accused. 39. No doubt the counsel appearing for the contesting respondent would contend vehemently in his arguments that, the Investigating Officer while submitting report given the details of how

43 the funds were mobilized for acquiring the property and the same ought to have been considered by the Special Judge but nothing is considered while accepting the B report. The very object of referring the matter for investigation under section 156(3) is defeated and before accepting the B report filed by the Investigating Officer, the Special Judge ought to have applied his judicial mind and the same has not been done and only passed a cryptic order and did not discuss anything about the complaint averments and also whether the material collected by the Investigating Officer is in consonance with the allegations made in the complaint and the same has not been discussed while passing the order, particularly the documents which have been referred by the Investigating Officer also has not been referred in the order and while accepting the B report, mainly concentrated only on the income

44 which the accused has acquired is only to the tune of 9.25% and did not consider the documents for arrival of such a conclusion and the material on record have also not been looked into and hence it requires interference of this Court to set aside the impugned order in accepting the B report. 40. The other contention of the contesting respondent that the revision lies not the writ petition cannot be accepted for the reason that the petitioner in the writ petition has sought a relief of setting aside the impugned order and also for an order for further investigation by the Central Bureau of Investigation on the ground that the investigation has not been properly conducted by the Investigating Officer and the same was prejudiced to the interest of the complainant and when the complainant is having

45 grievance with regard to the very investigation, no impartial investigation has been conducted, the relief is not restricted only in respect of the impugned order and also sought for further investigation and hence the very contention of the contesting respondent’s counsel that revision lies and not the writ petition cannot be accepted. 41. The court can exercise its power under Article 226 of the Constitution when the same amounts to miscarriage of justice and also when the same is nothing but an abuse of process of Court and further more, if the material on record discloses that the report is nothing but shielding of a person an extraordinary jurisdiction can be exercised even to order for further investigation. But in the case on hand, this Court has already pointed out that whether the Investigating Officer has proceeded in a right direction or not and

46 whether the allegation made in the complaint so also the grounds urged in this petition whether right or wrong, there is no any discussion in the impugned order and the Court forms an opinion with regard to the nature of investigation done by the Investigating Officer and also the same is not scrutinized by the Special Judge, it is not appropriate to pass an order to further investigation that too by Central Bureau of Investigation and if the same is warranted in the interest of society at large, then only the same can be exercised that too sparingly and in the case on hand no such discussion is made in the order impugned and the Special Judge proceeded in an erroneous method accepting the reasons given by the Investigating Officer in submitting the B report and hence it requires remand with a direction to consider the material available on record and thereafter to pass a reasoned order

47 in keeping the allegations made in the complaint or otherwise it amounts to miscarriage of justice. 42. In view of the discussions made above, this Court proceed to pass the following: ORDER The writ petition is allowed. The impugned order dated 7.1.2013 passed in P.C.R.No.2/2011 is hereby set aside. The matter is remanded to the concerned Court to consider the matter afresh in view of the observations made in the order and to pass a reasoned order and if the Special Judge finds material, to proceed against the accused, take cognizance and proceed in accordance with law.

Sd/-

JUDGE nd