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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON’BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION No.56983/2014 [GM-RES]
BETWEEN :
SRI. B.S. HANUMANTHE GOWDA SON OF LATE SIDDAMARAIAH AGED ABOUT 51 YEARS RESIDING AT No.33 4TH FLOOR, 12TH MAIN NEAR PULLA REDDY SWEETS JAYANAGARA 4TH BLOCK BENGALURU-560 011. ...PETITIONER
(BY SRI. SHANKAR REDDY C, ADV.)
AND :
THE STATE OF KARNATAKA BY LOKAYUKTA POLICE RAMANAGARA DISTRICT RAMANAGARAM-562159. …RESPONDENT
(BY SRI. VENKATESH S. ARBATTI, SPP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO QUASH THE CHARGE SHEET DATED 5.8.2013 VIDE ANNEXURE-A FILED IN SPECIAL CASE No.122/2013 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE
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- 2 - (SPECIAL COURT), RAMANAGARAM AND CONSEQUENTLY THE FIR LODGED AS AGAINST THE PETITIONER IN CRIME No.1/2009 BY THE RESPONDENT BY QUASHING THE SAME AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this petition, the petitioner has prayed for quashing the charge-sheet in Special Case No.122/2013 pending on the file of the learned Principal District and Sessions Judge (Special Court), Ramanagara (henceforth for brevity herein referred to as ‘Special Court’) and consequently the FIR lodged as against the petitioner in Crime No.1/2009 by the respondent and has also sought for quashing the order dated 25.08.2014 made on the application filed by the petitioner under Section 239 of Cr.P.C., seeking his discharge in Special Case No.122/2013 on the file of the Special Court.
The petitioner is working as Assistant Engineer, Grade-II, in the office of the Chief Engineer,
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- 3 - National Highway, Central Office, K.R. Circle, Bengaluru City. Respondent-police registered a case against the petitioner in Crime No.1/2009 for the offences punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988. After investigation, charge-sheet came to be filed in Special Case No.122/2013.
The petitioner earlier challenging the said charge-sheet has preferred criminal petition before this Court under Section 482 of Cr.P.C. seeking quashing of the charge-sheet filed against him. This Court by its order dated 02.12.2013 though dismissed the criminal petition observing that the charge-sheet allegations are the subject matters of the trial, however, it kept open for the petitioner to move the Special Court for discharge. Thereafter, the petitioner filed an application initially under Section 227 of Cr.P.C., but later converted into an application under
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- 4 - Section 239 of Cr.P.C. seeking his discharge in the matter before the Special Court. The said Special Court by its order dated 25.08.2014, dismissed the said application. It is thereafter, the petitioner has approached this Court through this petition.
It is the contention of the petitioner as well argument of the learned counsel for the petitioner that the very documents produced by the investigating agency along with charge-sheet itself go to show that alleged excess assets in any case does not exceed 10% of the excess income. The calculation error that has crept in has shown the percentage of the excess assets to 46% which is highly erroneous.
Drawing attention of this Court to several of the sale deeds and the service particulars, the learned counsel further submitted that those documents go to show that many of the immovable
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- 5 - properties were purchased under those documents and sale deeds were duly reported to the employer and they are standing in the name of the petitioner. However, the Special Court erroneously observing that those documents are standing in the name of wife of the petitioner has come to a wrong conclusion, which resulted in dismissal of the application. Learned counsel further submitted that consideration of the application should not have been a formality and it requires application of mind. In this regard, learned counsel relied upon the decision of the Hon’ble Supreme Court in the case of P. Vijayan vs. State of Kerala and Anr. reported in AIR 2010 SUPREME COURT 663. In the said case, the Hon’ble Apex Court while dealing with Sections 227 and 228 of Cr.P.C. was pleased to observe that words used “not sufficient ground for proceeding against the accused” clearly show that Judge is not a mere Post Office to
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- 6 - frame the charge at the behest of prosecution, but the Judge has to exercise his judicial mind to facts of case in order to determine whether a case for trial has been made out by prosecution. Relying on the said judgment, learned counsel for the petitioner submitted that in the instant case, the Special Court has not applied its mind and on the other hand, in the mechanical manner has disposed of the application by giving an erroneous finding which has resulted into rejection of his application seeking discharge.
Learned SPP for respondent, in his argument, initially submitted that petition itself is not maintainable since no revision would lie as mandated under Section 19(3)(c) of the Prevention of Corruption Act, 1988, against the interlocutory order. However, he further submitted that assuming that present petition in the form of writ petition is maintainable, still impugned order has been passed after considering
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- 7 - all the contention putforth by the applicant/accused. The statistics relied upon by the learned counsel is only the alleged statistics shown in the source report which was a preliminary report. Whereas, charge- sheet shows a complete and accurate calculation about the percentage of the excess property held by the accused beyond his known source of income. He also submitted that it is incumbent on the part of the accused to give all details about his source of income. It is for him to furnish documentary proof from his side and to give explanation. It is based on his explanation and the report only, the investigation officer has calculated the percentage of the excess income. Finally, he submitted that the appreciation and evaluation of the documents which the petitioner contends as mis-read by the Trial Court would only be evaluated and scrutinized in the course of the trial. As such, in pre-trial stage, the appreciation of individual
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- 8 - document cannot be entertained. An order passed by the Special Court which is challenged here cannot be interfered with, so also no grounds are made out to quash the charge-sheet or the proceeding in the Special case No.122/2013.
It is the contention of the petitioner that he has put up a long service of 23 years, whereas, the source report has considered the length of his service as only 15 years. Accordingly, his income has been considered as Rs.20,00,000/-. However, a perusal of the charge-sheet go to show that after investigation, the investigation officer has considered the entire length of the service of the petitioner/accused and has arrived at a conclusion that after deducting statutory deductions and also contribution towards KGID, LIC, GPF, the total gross income for the check period was a sum of Rs.11,68,293/-. Thus, income that is calculated by the investigation officer as could be seen
W.P. No.56983/2014
- 9 - in the charge-sheet is much less than what income has been shown in the source report.
Learned counsel also pointed out that there are several discrepancies in the source report with respect to the final calculation. Expenses for agriculture development is shown as Rs.5,00,000/-, whereas income from the agriculture is taken as Rs.2,00,000/-. The fact that the wife of the accused was herself agriculturist, horticulturist and sericulturist and had huge source of income has also been ignored. He further contended that such agricultural income has been taken twice to calculate expenses under two different heads, one development of the land expenses and second as agricultural expenses. Similarly, educational expenses at Rs.2,00,000/- has also been counted twice which has led into erroneous conclusion regarding income and expenditure of the petitioner. He further submitted that different sale
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- 10 - deeds muchless sale deeds dated 03.03.2005, 01.02.2006 and 18.05.2005 at Annexures-K, L and Z though stand in the name of the petitioner/accused, still they have been taken as properties standing in the name of wife of the petitioner in the order passed by the Court below on application under Section 239 of Cr.P.C. Thus, the same has led to erroneous conclusion. Learned counsel for the petitioner also submitted that in the year 2008 itself, which was one year prior to the institution of the complaint against the petitioner under the Prevention of Corruption Act, there was a suit for partition wherein the present petitioner was defendant No.9. The said Original Suit No.91/2008 shows the details of the properties which were suit schedule properties and all those properties have already been counted for and brought on record in a process known to law, as such, the question of
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- 11 - any illegal accumulation of assets beyond his known source of income would not arise.
The contention of the petitioner as well as argument of the learned counsel for the petitioner which has been summarized above are all based upon certain documents which according to the petitioner has already been part and parcel of the charge-sheet. When those documents are on record and its interpretation is in question, the same would be subject matter of the trial. At this stage, merely looking at certain documents which the petitioner has identified or chosen to bring to the notice of the Court by itself cannot be concluded or held that the accused has explained convincingly about his source of income and also properties said to have been accumulated by him. A perusal of the impugned order go to show that the Court below has not disposed of the application filed before it under Section 239 of Cr.P.C. in a
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- 12 - mechanical manner or merely as a formality, rather after analyzing the scope of Section 239 of Cr.P.C., it has looked into several materials placed before it in a meticulous manner and has discussed each of the material placed before it in detail and only thereafter giving its own reason, it ultimately came to a conclusion that there was no reason to hold that charge is groundless. As such, it rejected the said application.
This Court also while disposing of the previous similar petition of the petitioner in Criminal Petition No.6711/2013 on 02.12.2013 was pleased to make following observations:-
“3. Sri. Shankar Reddy, learned counsel for the petitioner firstly contends that the petitioner’s wife is an agriculturist, she is having an independent income and the same is reflected in her income tax returns. Despite this evidence the income
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- 13 - of the wife is taken as the income of the petitioner. On this ground the proceedings cannot be quashed. This is a matter of evidence. Under Section 482 Cr.P.C. it is not appropriate for this Court to assess, appreciate and evaluate the evidence gathered by the investigating agency.
Secondly it is contended that the conclusion in the charge sheet are not supported by evidence on record. If that is so, it is open for the petitioner to take advantage of it. Again this cannot be gone into by this Court under Section 482 Cr.P.C. Keeping open all contentions urged by the petitioner in this petition, this petition is hereby dismissed. The Special Court to expedite the matter. It is also open for the petitioner to move the Special Court for discharge. In that event, the Special Court to consider the same in accordance with law.”
As already observed above, all the contentions taken up by the petitioner require a
W.P. No.56983/2014
- 14 - detailed trial to appreciate the same and to assess evidentiary value of the documents produced by him, so also contention of the prosecuting agency. Therefore, I am of the view that there are sufficient materials to proceed further with the trial against the petitioner for the alleged offences leveled against him. As such, I do not find any reason to allow the petition and to quash the special case pending against him.
Accordingly, writ petition stands dismissed.
Considering the fact that FIR filed against the petitioner is of the year 2009 which is very old in time, early disposal of the special case by the Court below not later than six months from today would be highly appreciated.
Sd/- JUDGE
PMR