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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2022 BEFORE THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL REVISION PETITION NO.723 OF 2012
BETWEEN:
THE STATE OF KARNATAKA, THE POLICE KARNATAKA LOKAYUKTA, CHIKKABALLAPURA-562 101. … PETITIONER
[BY SRI. B.S.PRASAD, SPL. PP]
AND:
SRI. SRINIVASAPPA, S/O. LATE DODDA MALLAPPA, INSPECTOR OF MOTOR VEHICLE, PRESENTLY WORKING AT:RTO OFFICE, CHITRADURGA-577 501. RESIDENTIAL ADDRESS: NO.885, 19TH MAIN ROAD, 19TH CROSS, IDEAL HOME TOWNSHIP, RAJARAJESHWARINAGAR, BANGALORE-560 098.
… RESPONDENT
[BY SRI. VISHWANATH R. HEGDE, HCGP]
* * *
THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DISCHARGE DATED 12.01.2012 PASSED BY THE DIST., AND J., CHIKKABALLAPUR IN PCA CC NO.8/11 OF THE OFFENCE P/U/S 13(1)(e) R/W 13(2) OF THE PREVENTION OF CORRUPTION ACT 1988 FURTHER DIRECT THE SPL. COURT TO FRAME THE CHARGE AND TO PROCEED WITH THE TRIAL.
THIS CRIMINAL REVISION PETITION COMING ON FOR FURTHER HEARING, THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is preferred against the order dated 12.01.2012 passed by the Court of District and Sessions Judge, Chikkaballapur, whereby the accused/respondent has been discharged from the offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred to as ‘P.C. Act’ for short].
Heard both sides and perused the material on record.
The brief facts leading to filing of the revision petition are as under:
The accused entered into service as a Motor Vehicle Inspector in the Transport Department on 05.12.1991 and served in several districts and ultimately while he was working at Devanahalli, Bengaluru Rural District, the Lokayukta Police, Bengaluru Rural District received a credible information that he has amassed wealth disproportionate to his known source of income. On the
basis of the source information report an FIR was registered on 26.03.2008 alleging that the accused had known source of income of `33,00,000/- from the date of entering into his service i.e., from 05.12.1991 and had expenses of `14,30,000/- and approximate assets to the tune of `1,45,00,000/- and therefore he has amassed disproportionate assets to the tune of `1,26,50,000/- disproportionate to his known source of income, to the extent of 107.12%.
On registration of a case in Crime No.12/2008, the superintendent of Police, Lokayukta, Bengaluru Division took over the investigation and submitted a requisition to the jurisdictional Court for issuance of search warrant to search the house of the accused situated at Rajarajeshwarinagar, Bengaluru and also at ARTO office, Devanahalli where the accused was serving. Further, on the strength of the search warrant, the Police Inspector, Karnataka Lokayukta, Mandya conducted a ride on the house of the accused at Rajarajeshwarinagar, Bengaluru and seized the movable and immovable property and
certain documents. Further, as per the request of Investigating Officer, Additional ADGP, Karnataka Lokayukta, Bengaluru transferred the case to Chikkaballapur Lokayukta Police, who received the file and registered a case in Chikkaballapura Lokayukta Police Station. Thereafter, investigation was taken over by the Police Inspector and on completion of the investigation he laid charge-sheet, wherein it is alleged that the accused has amassed wealth disproportionate to his known source of income to the tune of 107.12% and thereby committed the offence under Section 13(1)(e) read with 13(2) of P.C. Act.
The impugned order passed by the learned Sessions Judge in discharging the respondent has been assailed mainly on the ground that there is a prima facie case against the accused and at the stage of considering a discharge application no meticulous examination of the documents or a rowing enquiry can be conducted. It is contended by the learned counsel for the petitioner that the impugned order passed by the learned Sessions Judge is
not in accordance with the law as the reason assigned are not sufficient to discharge the accused. It is contended that as held by the trial Court the previous income of the accused prior to the cheque period need not be taken into consideration when the Investigation Officer has taken into consideration the income of the accused and the assets and liabilities during the cheque period i.e., from 01.01.1995 to 27.03.2008. He contends that the trial Court was not proper in taking the property of the wife and father of the accused to come to a conclusion that there is no disproportionate income, though they have no separate income and the trial Court also erred in accepting the income tax returns filed by the wife, which is a self declared statement and no reliance can be attached to the said self declared statement at the stage of considering a discharge application. He has contended that the accused has not specifically disputed the property which are mentioned in the source report and therefore the burden lies on him to prove that his family members have separate income and the prosecution has right to cross-examine him during the course of trial. He would also contend that no
separate documents are forthcoming to show that the accused was having any agricultural income and therefore contends that the impugned order is not sustainable in law. The learned counsel for the petitioner would also contend that the Sanctioning Authority has in fact taken into consideration the entire materials which are part of the charge sheet and therefore, the trial Court was not justified in saying that there is no application of mind by the Sanctioning Authority before according sanction to prosecute the accused. It is also contended that the accused has owned properties in the name of his wife and father and appropriated his illegal properties by obtaining permission from his superior. The petitioner’s counsel thus justified filing of charge-sheet against the accused and hence, contended that material collected by the Investigation Officer is sufficient to proceed against the accused and therefore, the trial Court committed a grave error in discharging the accused.
Per contra, the learned counsel appearing for the respondent argued supporting the impugned order
contending that the trial Court has taken into consideration all the material aspects and after assigning elaborate reasons has proceeded to discharge the accused. He has drawn the attention of the Court to various contentions raised by the respondent before the trial Court seeking discharge and submitted that the trial Court has given finding with regard to each and every aspect of the case and submits that there are no grounds to interfere with the impugned order which is passed on 12.01.2012 as there is no illegality committed by the trial Court so as to take a different view and to set aside the order.
The learned counsel for the respondent has relied on several decisions of the Hon’ble Apex Court and contended that a Court dealing with an application under Sections 227 or 239 of Cr.P.C., seeking discharge, cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court and if two views are equally possible and one of them gives rise to suspicion
only, as distinguished from grave suspicion, the trial Judge is empowered to discharge the accused.
The learned counsel for respondent has further contended that, there are as many as 69 witnesses cited in the charge-sheet, but the sanctioning authority has not taken into consideration the entire material in the charge- sheet, including the statements of those witnesses. On the other hand, only on the basis of the statements of 3 witnesses, as it is evident from the sanction order, has accorded sanction and therefore, the same has prejudiced the accused. He submits that, the sanction order is without application of mind, which is also taken into consideration by the trial Court. Hence, contended that the trial Court after viewing the matter from all the angle, has discharged the accused, which order does not call for any interference.
It is also contended by the learned counsel, relying on a decision of this Court passed in W.P. No.7911/2022 [GM-RES] [K.R. Kumar Naik vs. The State by Anti Corruption Bureau] disposed of on 26.07.2022 that, in the case on hand, on the same day
i.e., on 26.03.2008 on which day the source information report was submitted, the FIR was registered and in the above decision it is held in similar circumstances, the FIR and Source Information report were drawn on the same day is ostensibly done at jiffy and the act of drawing up of Source Information Report and registering the FIR has been deprecated by the Court.
Having given anxious consideration to the rival contentions, this Court is required to see as to whether the impugned order passed by the trial Court discharging the accused is illegal or whether it is in accordance with law.
Undisputedly, the accused was working as a Motor Vehicle Inspector, who joined the Transport Department on 05.12.1991 and he was working at Devanahalli, Bengaluru Rural District on the relevant point of time when the prosecution is alleged to have received the credible information that he has amassed disproportionate assets against his own source of income. According to the charge-sheet, the respondent had amassed excess wealth which was disproportionate to his
known source of income to an extent of 107.12%. The investigation conducted by the prosecution is for the period from 01.01.1995 to 27.03.2008. It is relevant to see that the income and assets held by the accused is in continuation of the date of entering into service. Admittedly, the prosecution has not considered the previous income prior to the check-up period i.e, prior to 01.01.1995. The trial Court has rightly come to the conclusion that unless the previous income prior to the date of entering into service is considered, it is very difficult for the prosecution to come to the conclusion as to how much excess income has been held by the accused as on the date of the raid and therefore, the income considered by the prosecution only for the said period will not give the definite income of the accused to come to a conclusion that he has amassed excess wealth on the date of receiving information or on the date of conducting the raid.
From the material on record, the trial Court has come to the conclusion that the Police Inspector, Karnataka
Lokayukta, Mandya, was not the competent or authorized person to conduct raid on the house of the accused situated outside jurisdiction of Mandya. As per the requisition filed by the Superintendent of Police, Police Wing, Karnataka Lokayukta, Bengaluru, to the jurisdictional Court, seeking issuance of search warrant, the Superintendent of Police was the Investigating Officer, whereas the name of the Police Inspector, Karnataka Lokayukta, Mandya, has been mentioned as the one who conducted raid on the house of the accused as well as the office of the accused, though he was not authorized by the Superintendent of Police. When admittedly, he was not the Investigating Officer and when he was not authorized by a superior Police Officer for giving a requisition, the trial Court has rightly come to the conclusion that the said Police Inspector was not a competent person or an authorized person to conduct raid on the house of the accused, which is situated outside the jurisdiction of Mandya. There is no dispute that no raid was conducted in the RTO where the accused was working at Devanahalli. Subsequently, when it came to the notice of the
Investigating Officer that the accused was working as Motor Vehicles Inspector at North RTO Office, Bengaluru, no fresh search warrant was obtained.
Another aspect taken into consideration by the trial Court is that, in the requisition for obtaining Search Warrant, the house number is mentioned as ‘No.41, 9th Cross, Rajarajeshwari Builders, Rajarajeshwarinagar, Bangalore-560 098’ and the same address was mentioned in the Search Warrant but, in the panchanama, the address is mentioned as ‘No.41, Surya Krishna, No.885, 19th Main, 19th Cross, Rajarajeshwarinagar, Bangalore’. Obviously, this is not the house mentioned in the requisition filed for issuing the Search Warrant. The house mentioned in the requisition for issuance of Search Warrant is different than the house searched and mentioned in the panchanama. Therefore, the trial Court was of the view that it is the duty of the Investigating Officer to ascertain the identification of the house which he is going to conduct the search. The trial Court was of the opinion that search itself is not free from doubt and it cannot be relied on.
The trial Court has also taken into consideration the annual property returns filed by the accused from the date of entering into service. Further, the fact that the father of the accused is also an income tax assessee and these facts were explained by the accused to the Investigating Officer and objections are not raised by the disciplinary authority with regard to the income and expenditure shown by him in his annual property returns. The prosecution has not considered the annual property returns submitted by the accused every year before conducting the raid, whereas it is admitted by them that the accused has submitted the annual property returns regularly and there is no objection raised by the disciplinary authority with regard to genuineness of the annual property returns submitted as well as by the Income Tax Department with regard to the income and expenditure of the accused submitted in his income tax returns. This fact has been admitted to be taken into consideration by the Investigating Officer. Even as per prosecution, the father and wife of the accused as well as his brother-in-law are also income tax assessee and it is
clear that their income while filing the income tax returns is also not taken into consideration by the Investigating Officer, while filing the charge-sheet.
The learned counsel for the respondent would draw the attention of the court to the order passed by the Income Tax Officer, who on the basis of information gathered from the Karnataka Lokayukta, Bengaluru, regarding the alleged possession of immovable and movable assets disproportionate to the known source of income of the accused, after an enquiry and obtaining details of movable and immovable assets of the accused and his family members for various assessment years, found that there is no unexplained investment or concealment of income relating to the assessment years. The said document is part of the investigation report.
The trial Court has also taken into consideration the validity of the Sanction Order passed on 27.04.2011 for prosecuting the accused. The said sanction order was passed by the Transport Commissioner. According to the learned counsel for the petitioner, the entire charge-sheet
material was submitted to the sanctioning authority and after a meticulous examination of the entire material, the sanctioning authority granted sanction. A careful perusal of the sanction order dated 27.04.2011 go to show that though the prosecution has recorded the statements of 69 witnesses, only the statements of 3 witnesses were perused by the authority while granting sanction, which is evident from the Sanction Order. Further, during the course of investigation, the Investigation Officer has obtained the explanation from the accused regarding the properties acquired by him. However, the same was not placed before the sanctioning authority. These documents being available at the time of filing of charge-sheet, ought to have been placed while submitting the charge-sheet to the sanctioning authority. Withholding of the same will certainly prejudice the accused as the sanctioning authority will be at loss to come to a definite conclusion as to whether there was any disproportionate assets as alleged. It is also relevant to see that, in the Sanction Order it is mentioned that the statements of the 3 witnesses are enclosed. It is not forthcoming as to who are those 3
witnesses whose statements have been perused before granting sanction. Obviously statements of other relevant witnesses are not perused. Therefore, there was non- application of mind by the sanctioning authority while according sanction, which has been rightly appreciated by the trial Court.
The trial Court has also taken into consideration that even in the Sanction Order at page 3, which refers to the panchanama, the house number which is mentioned is different from the house where the Investigation Officer obtained search warrant to conduct the raid. These aspects are also not considered by the sanctioning authority which obviously leads to an inference that the Sanction Order to prosecute the case was granted mechanically, without application of mind.
With regard to some landed properties in the name of the wife of the accused which were purchased in her name as well as in the name of one S.Gopinath and agricultural land to an extent of 2 acres at Doddakuntanahalli, Bidadi Hobli, Ramanagara Taluk, the
trial Court has considered that the accused has obtained permission from the competent authority and he has explained the source of income for acquiring the above said properties in the name of his wife. Even in respect of the house property at Rajarajeshwarinagar, Bengaluru, is concerned, it was for a consideration of `5,760/- and for this also he has taken permission from the RTO, Hosapet, on 07.09.1998. Even for constructing a building in the said site, he has taken permission. The trial Court has taken into consideration that the wife of the accused has separate income, who is also an independent income tax assessee.
In so far as another two properties situated at J.P. Nagar and Kaval Byrasandra, Bengaluru, are concerned, the trial Court has taken into consideration that the first property was purchased by the father of the accused through a registered Sale Deed dated 24.02.2001, which was declared by him in his income tax returns as he is an independent income tax assessee. Further, he has acquired some ancestral properties which were declared by the accused in the annual property returns. In so far as the
second property is concerned, it was purchased by the father of the accused vide registered Sale Deed dated 18.04.2000 which was leased to one B.V.Jayaram through a Lease Deed dated 11.04.2001, which is also declared in the income tax returns for the relevant period. These documents are part of the charge-sheet and therefore, the trial Court has come to the conclusion that the accused is in no way concerned with these properties. The prosecution itself has admitted that the above persons are having their own source of income and therefore, the reasons assigned by the trial Court cannot be found fault with. In the objection statement filed by the prosecution, it admitted the existence of source of income of the person in whose name the properties are standing, which is also considered by the trial Court. Therefore, the reasons assigned by the trial Court that the accused has explained the acquisition of income for himself, his wife and father by filing annual property returns and income tax returns to hold that the acquisition of property is not a benami property cannot be termed as improper.
In so far as the movable properties are concerned, the accused has submitted the annual property returns statement and since the prosecution did not take into consideration the income of the accused from the date of entry into service, the trial court was of the view that those properties cannot be said to have been acquired by the accused at once. As already observed, unless the income of the accused from the date of his entry into service is taken into account, it is difficult to hold that the properties acquired by the accused is disproportionate to his known source of income.
It is contended by the learned counsel for the petitioner relying on a decision of the Hon’ble Apex Court in the case of State of Tamil Nadu Vs. N.Suresh Rajan and Others reported in [2014]11 SCC 709 that merely because the accused and his kith and kin are assessed to income tax and paid income tax is not a ground to discharge the accused. In the said decision, the Hon’ble Apex Court has observed that the property in the name of income tax assessee itself, cannot be a ground to hold that
it actually belongs to such assessee. However, that is not the only ground on which the trial Court has discharged the accused. Various other aspects have been taken into consideration by the learned Sessions Judge. In the case on hand, as per the prosecution papers itself, on the basis of the information gathered regarding alleged possession of immovable and movable assets disproportionate to the known source of income of the accused, a detailed investigation was carried and after obtaining details of immovable and movable assets of the accused and his family members, it was found that there was no unexplained investment or concealment of income.
The petitioner’s counsel has relied on a decision of the Hon’ble Apex Court in the case of Sajjan Kumar Vs. Central Bureau of Investigation reported in [2010]9 SCC 368 to contend that the pros and cons of the entire material cannot be analyzed and if there is a strong suspicion which leads the Court to think there are grounds for presuming that the accused has committed an offence, then he cannot be discharged.
It is well-settled that while considering an application for discharge, no mini trial is contemplated and only probative value of materials has to be gone into see if there is a prima facie case to proceed against the accused and the Court is not expected to go deep into the matter and hold that materials would not warrant a conviction. But at the same time, the Court having jurisdiction to consider an application for discharge cannot act merely as a post office or a mouthpiece of the prosecution and it has undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not there is a prima face case and the trial Judge if comes to the conclusion on the basis of the material placed by the prosecution that it gives raise to some suspicion but not grave suspicion, will be fully justified to discharge the accused.
It is contended by the learned counsel for the respondent that in the case on hand, on the same day i.e., on 26.03.2008 the source report was submitted, FIR was also registered. He has relied on a decision of this Court
rendered in K.R. Kumar Naik vs. The State by Anti Corruption Bureau [supra], wherein such practice has been deprecated, observing that a source information report cannot be generated at the drop of the hat and it has to be drawn up after calculating the entire period of service of a public servant to arrive at a prima facie conclusion, that he has amassed wealth disproportionate to his known source of income.
Considering the material on record, the trial Court after assigning reasons has come to the conclusion that the accused is entitled for discharge. There are no grounds to interfere with the said order.
For the above reasons, I find that the impugned order passed by the trial Court does not suffer from any illegality. The revision petition is therefore dismissed.
SD/- JUDGE
HB : Para 1 to 4 Ksm*: Para 5 to end