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Karnataka High Court · body

2014 DIGILAW 610 (KAR)

S. Krishnamurthy v. State of Karnataka

2014-06-30

A.S.PACHHAPURE

body2014
ORDER The petitioner has challenged the Order dated 05.11.2013 passed by the learned Special Judge, taking cognizance for the offence punishable under Sections 13(1)(c)(d)(ii) r/w. 13(2) of the Prevention of Corruption Act [hereinafter referred to as “the Act” for short] against him and for quashing the FIR in Crime No.95/2012 dated 27.12.2012. 2. The facts relevant for the purpose of this petition are as under: The petitioner is a retired civil servant in the Indian Police Service, Karnataka Cadre and retired on 30.04.2003. The 2nd respondent, who is also a retired civil servant in the Indian Police Service, Karnataka Cadre filed a complaint to the Station House Officer/Officer-in-charge-Lokayukta Police Station against the petitioner for the offence under Sections 13(1)(d)(ii) of the P.C. Act. The petitioner is said to have joined the services on 14.07.1967 and while he was in service as an Addl.D.G.P., said to have utilized the services of the Head Constable, allotted as an Orderly, as a cook in his house for a period of 15 years prior to his retirement and continued to avail his services for few months even after retirement. The petitioner was on deputation as a Registrar of the Bangalore University for 2 years and Director of Information and Publicity, Government of Karnataka for 5 years and though these two posts were non-police posts, during the said period as well, he employed Srinivas, the said Head Constable [accused No.1 in the complaint] as a cook. As contended, Srinivas, the head constable was a Government employee and was paid salary out of the tax payers contribution and taking him for menial duty of a cook in the house amounts to obtaining the pecuniary advantage by abusing his position as a public servant. Therefore, the 2nd respondent alleging that this conduct of the petitioner amounts to criminal misconduct punishable under Sections 13(1)(d)(ii) of the Act and other provisions of law, requested for investigation for the offence aforesaid. A copy of the FIR with the complaint is at Annexure-“B”. The complaint was registered in Crime No.95/2012 for the offence punishable under Section 13(1)(d)(ii) of the Act and on completion of the investigation, the Lokayukta Police submitted a “B-Summary” Report. After submission of the report, the learned Special Judge issued a notice to the 2nd respondent herein [complainant] and after hearing him, under the impugned Order has taken cognizance for the offence aforesaid against the petitioner herein. After submission of the report, the learned Special Judge issued a notice to the 2nd respondent herein [complainant] and after hearing him, under the impugned Order has taken cognizance for the offence aforesaid against the petitioner herein. It is this Order of the learned Special Judge and registration of the FIR., which are sought to be quashed. 3. Heard the petitioner, the 2nd respondent and also learned counsel for the 1st respondent. 4. The point that arises for my consideration is; Whether the learned Special Judge was justified in taking cognizance of the offence punishable under Sections 13(1)(c)(d)(ii) r/w. 13(2) of the Act against the petitioner? 5. The petitioner contends that the employment of the Head Constable allotted as an orderly to work as a cook, does not amount to a criminal misconduct, punishable under Sections 13(1)(d)(ii) of the Act as there is no mens rea and therefore, he submits that the cognizance taken by the learned Special Judge is erroneous and illegal. It is also his submission that when the 1st respondent had filed a “B-Summary” Report and the 2nd respondent had protested such report, the learned Special Judge without recording the sworn statement of the 2nd respondent cannot take the cognizance and hence he submits that the impugned order is illegal. According to him the criminal proceedings initiated by the second respondent are manifestly attended with mala fides and ulterior motive for wrecking vengeance on the petitioner. He submits that this conduct itself is sufficient to quash the order and registration of the FIR. He says that the facts alleged do not constitute an offence and the order of taking cognizance is illegal. According to him, he has not violated any rules of conduct or committed any crime and therefore, the order deserves to be set aside. On the other hand, the 2nd respondent submits that a Government servant cannot be employed for cooking in the house of a superior officer, more particularly a Head Constable and as it tantamount to misuse of his position, the provisions of Sections 13(1)(d)(ii) of the Act are attracted. According to him, a Head Constable who could be in-charge of a Police Station and paid the salary by the Government for his duties, using his service for private purposes is an act of obtaining a pecuniary advantage abusing his position and therefore is punishable under Sections 13(1)(d)(i) and (ii) of the Act. According to him, a Head Constable who could be in-charge of a Police Station and paid the salary by the Government for his duties, using his service for private purposes is an act of obtaining a pecuniary advantage abusing his position and therefore is punishable under Sections 13(1)(d)(i) and (ii) of the Act. He submits that the Special Judge has taken cognizance under section 190 Cr.P.C. on the basis of the material placed on record and therefore, recording the sworn statement under Section 200 Cr.P.C. is unwarranted. He also submits that there is an admission by the petitioner in the objections statement filed in the writ petitions about employing the Head Constable as a cook in the house of the petitioner for 15 years and this material placed on record is sufficient to take cognizance. Learned Special Public Prosecutor for the 1st respondent supports the order of the Court below. 6. It is not in dispute that on the complaint of the 2nd respondent, investigation was held by the Lokayuktha Police and a “B-summary” Report was submitted. The learned Special Judge has not taken cognizance under Section 200 Cr.P.C. The question of recording the sworn statement arises only in a case where the Magistrate has to take cognizance on a complaint and at that time, he has to record a sworn statement. Under the impugned Order, the Special Judge has taken cognizance under Section 190 Cr.P.C. on the basis of facts in the “B-Summary” Report. On scrutinizing the report, he was of the opinion that the facts collected by the Investigating Officer during the investigation, constitute an offence of criminal misconduct. This opinion is arrived at by the learned Special Judge on the basis of the material collected and found in the “B-Summary” Report. For the aforesaid reason, taking of cognizance under Section 190 Cr.P.C. without recourse to Section 200 Cr.P.C. is legal. 7. The petitioner and the 2nd respondent are the retired persons of the Indian Police Service, Karnataka Cadre and were the superior officers in the department. The petitioner herein was 6th respondent in W.P. No.5250/2002 and 5th respondent in W.P. No.6671/2002. In the objection statement filed in the aforesaid writ petitions, in para 4 it is stated “this respondent has a Cook called Head Constable Srinivas working in the respondent’s house for the past 15 years”. The petitioner herein was 6th respondent in W.P. No.5250/2002 and 5th respondent in W.P. No.6671/2002. In the objection statement filed in the aforesaid writ petitions, in para 4 it is stated “this respondent has a Cook called Head Constable Srinivas working in the respondent’s house for the past 15 years”. The copy of the objection statement has been produced by the petitioner at Annexure-“E” and it reveals an admission of the petitioner herein, utilizing the services of the Head Constable as a cook in his house. So, it is this admission of the petitioner in the writ petitions, which is now alleged by the 2nd respondent as evidence of an act of criminal misconduct to attract the provisions of Section 13(1)(d) of the Act. 8. The said Srinivas, who was the Head Constable was arraigned in the complaint as accused No.1 but, no cognizance is taken against him. The said Srinivas was said to be an Orderly allotted to the petitioner for about 15 years prior to his retirement. Any how, the word “orderly” does not find any place either in any enactments or rules. It finds a place in the Police Manual and the relevant portion i.e., provision 862 is extracted hereunder for the sake of convenience: “Scale of Orderlies: 862. The following is the scale of orderlies prescribed: Inspector General of Police : 1 HC & 3 PCs Commissioner of Police/Deputy Inspector-General of Police: 1 HC and 2 PCs Superintendent of Police and Police Officer of the corresponding rank : 3 PCs Assistant/Dy. Superintendent of Police and Police officer of the corresponding rank : 2 PCs Inspector, Reserve Inspector and Police Officer of the Corresponding rank : 1 PC These orderlies are to be taken from the armed units. So, according to the aforesaid provision, a person of the rank of the petitioner at the time of his service, before retirement, was entitled to the services of one Head Constable and 3 Police Constables as orderlies. The next provision reveal that one of the orderlies given to Superior Officers may be used as a driver but the orderly driver will not be eligible for any driver’s allowance from Government funds. There is a prohibition for employment of an orderly for services of process. They have to be in uniform. 9. The next provision reveal that one of the orderlies given to Superior Officers may be used as a driver but the orderly driver will not be eligible for any driver’s allowance from Government funds. There is a prohibition for employment of an orderly for services of process. They have to be in uniform. 9. Anyhow, the perusal of the provisions of the Police Manual does not reveal the nature of the duties of the orderlies except that one of the orderlies given to the superior officers may be used as a driver as aforesaid. On this aspect of the matter, it is the submission of the 2nd respondent that such orderlies are allotted to a superior officer to utilize their services for the public purposes or for the purposes of the security of the Police Officer and cannot be employed to do the private work in the house of the superior officer. Though this submission is made, and it appears to be reasonable, no provisions in the Police Manual or any rules relating to the police officers prescribe the nature of the duties to be done by the orderlies allotted to a superior officers. It is only a matter drawing inferences. 10. In the absence of specific duties of the orderlies, under any rule, it appears to be just and proper to know the meaning of the word “orderly/ies” as provided in the dictionaries. In the oxford dictionary, an “orderly” is said to be “a soldier”, (1) serves as an attendant to a superior officer (2) a male hospital attendant, who has general duties that do not involve the medical treatment of the patients. The world “attendant” could be a person, who waits on or tends to or attend to the needs of another”. In the English dictionary of Mac Millan, the word “orderly” has been stated; (1) A noncommissioned officer or soldier, who attends a superior officer to carry his orders or to tender other service (2) A street sweeper. The New Webster dictionary of English language gives the meaning of an “orderly” as an army private or a non-commissioned officer who performs menial tasks and carries orders or messages for a superior officers, a hospital attendant who performs nonmedical services. 11. The New Webster dictionary of English language gives the meaning of an “orderly” as an army private or a non-commissioned officer who performs menial tasks and carries orders or messages for a superior officers, a hospital attendant who performs nonmedical services. 11. Now so far as a head constable in the police department is concerned, in addition to the duties annexed to his post, he can be placed in-charge of the Police Station. But, as to what are his duties when he is allotted as an orderly to a superior officer is not made clear in any rules or the Police Manual and therefore in such circumstances, the nature of his duties is to be a matter of drawing inferences only. 11. Anyhow, the 2nd respondent contends that the duties of the orderlies allotted to a superior officer is only to discharge the public function connected with the office and therefore, he submits that utilizing the services of a head constable is misuse of his position as a superior police officer, which attracts the penal provision. It is also his submission that the petitioner abused his position in taking the services of a Head Constable as a cook and therefore, is liable for the offence punishable under Sections 13(1)(d) of the Act. On this aspect of the matter, he placed reliance on a decision of the Apex Court reported in AIR 1963 Supreme Court 1116 [M.Narayanan Nambiar Vs. State of Kerala]; wherein the accused abusing his position as a public servant got 4 acres and 80 cents of Government land in the name of his brother-in-law by making false entries in the relevant records, in the aforesaid circumstances, the Apex Court observed “abuse” means mis-use i.e., using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means and “obtain” means acquire or get. Ultimately the Apex Court held that if by abusing his position as a public servant, obtains for himself any pecuniary advantage, irrespective of motive or reward for showing favour or disfavour, it attracts the provisions of Section 13(1)(d) of the Act. 12. Ultimately the Apex Court held that if by abusing his position as a public servant, obtains for himself any pecuniary advantage, irrespective of motive or reward for showing favour or disfavour, it attracts the provisions of Section 13(1)(d) of the Act. 12. But, anyhow, the perusal of the facts in the decision referred to supra, the nature of misconduct alleged is serious in nature, wherein the public servant got 4 acres 80 cents of land in the name of his brother-in-law without revealing the relationship and by making false entries in the relevant records and therefore, the conduct in which the word “abuse” and “obtain” were considered by the Apex Court, were on different facts than the one on hand. There was a direct nexus between the misuse and the pecuniary advantage taken. 13. Now, as could be gathered from the submissions made, the very system of utilizing the services of orderlies by a superior officer was brought in existence during the British regime. This system was continued even after independence. The continuance of the orderly system was even taken into consideration by the Parliament and the proceedings relating to the aforesaid subject was placed before the Parliament, a copy of which has been placed on record by the petitioner at Annexure-“M”. In para 4.1.9., the Committee of Home Affairs had raised the aforesaid question and the relevant portion is extracted hereunder for the sake of convenience: “The Committee is of the view that “Orderly system” functional in Police forces is quite discriminatory and reminiscent of British colonial era which affects the morale of the forces personnel who are trained to become security personnel, however, employed as cooks, drivers, attendants, etc. The Committee is of the view that this system should be abolished completely, forthwith, as recommended by 6th Pay Commission. The Committee is also of the view that posts of cooks drivers, attendants, etc if necessary at the residences of senior officers of the forces should be sanctioned separately.” [emphasis supplied] So, what could be gathered from the above recommendation is – that the utilization of the services of the orderlies as cooks, drivers and attendants was rampant in the police department. The Parliament was also considering the improper use of orderlies allotted to superior officers were employed by them as cooks, drivers, attendants, etc., and the Committee thought to abolish this system completely and a recommendation was made by the 6th Pay Commission. Any how, the Committee was also of the view that the posts of cooks, drivers, attendants, necessary at the residences of the senior officers should be sanctioned separately. So with regard to the orderly system that is in existence in the Police Department was within the knowledge of every one and also the Parliament. So the purpose of utilizing the services of orderlies is clear from the report aforesaid and it is for this reason, a recommendation was made to abolish this system as it affects the morale of the police personnel. Therefore, from the above, it is certain that it is not, of any one superior police officer, employing the orderlies as a cook or driver, it appears that many amongst the police superior officers were employing the orderlies for the aforesaid works and for this reason Home Affairs Committee had recommended abolition of the system. Therefore, the grievance that are made by the 2nd respondent about the use of the head constable as a cook in the house of the petitioner has to be looked into in the above context. 14. It is true that when a Government official is appointed to discharge the public duty, it is not proper to use his services for private work in the residence of a superior police officer. But, anyhow, this misuse itself in my opinion is insufficient to attract the provisions of Section 13(1)(d) of the Act for the reason that in case, if there is an allegation of an offence having been committed by a person, it is necessary to place on record two factors; (1) mens rea (2) actus reus. Even as provided under Section 190 Cr.P.C., the Magistrate is to take cognizance, the facts alleged in the complaint must reveal the ingredients of an offence and therefore, it is necessary to find out from the averments in the complaint as to the facts relating to Section 13(1)(d) of the Act have been placed on record or not. For commission of an offence, there has to be a criminal intent. In addition to the intent there must be an act. For commission of an offence, there has to be a criminal intent. In addition to the intent there must be an act. Therefore, what is stated by the 2nd respondent in the complaint is an act of the petitioner employing a head constable as a cook and there is nothing in the complaint as such to prove that there was criminal intent behind the use. 15. The Apex Court had an occasion to consider the criminal intent in a decision reported in 1980 Crl.L.J. 220 [Abdulla Mohammed Pagarkar etc., Vs. State (Union Territory of Goa, Daman and Diu)]; wherein it is held that where persons obtain a pecuniary advantage even by violation of departmental rules and instructions, they are not covered by Section 5(1)(d) of the Act unless dishonesty is established. So, apart from the act, it is the intention which is important and in the absence of which the provisions of Section 13(1)(d) of the Act are not attracted. More so, in the facts of this case, there is no violation of any of the conduct rules inclusive of All India Services [Conduct] Rules 1968. So, in the absence of violation of any Rules and also absence of duties of the orderlies, either in the Police Manual or under any other provision, though the use of an orderly for the private work of a superior police officer does not seem to be proper, this itself is insufficient to infer criminal intent on the part of the petitioner in employing the head constable as a cook though he may certainly liable for misconduct and cannot be accused of criminal misconduct in which there has to be a criminal intent. The scrutiny of the complaint and the material placed on record does not reveal any criminal intent on the part of the petitioner and therefore, taking of cognizance for the offence punishable under Section 13(1)(d) of the Act appears to be erroneous and illegal. 16. Anyhow, the perusal of the complaint would reveal that the petitioner was on other duties for few years and at that time he continued to the service of the head constable as a cook. May be that while he was on other duties but, that is also a misconduct, there is nothing to attribute criminal intent. 16. Anyhow, the perusal of the complaint would reveal that the petitioner was on other duties for few years and at that time he continued to the service of the head constable as a cook. May be that while he was on other duties but, that is also a misconduct, there is nothing to attribute criminal intent. That apart, the petitioner has retired from service in the year 2003 and though the 2nd respondent came to know the employment of a head constable as a cook when the writ petitions were filed in the year 2002, he has not taken any interest to initiate action against the petitioner till the filing of the complaint on 27.12.2012, i.e., also after many years of his knowledge of the aforesaid misconduct. This delay may be for the reason that it was just an act of misconduct for which he thought of not taking any action after retirement of the petitioner. Later he might have thought it proper to test it with the touch stone and therefore approached the police with a complaint. 17. Though the petitioner has made an allegation of malice on the part of the 2nd respondent, I do not find it relevant to consider it for the reason that in case, if facts relating to a serious offence are brought to the notice of the Court and there is material to support the said version, mere malice on the part of the complainant does not justify the refusal to take cognizance of an offence, and an action could be initialed. 18. The scrutiny of the material placed on record reveals that the learned Special Judge was not justified in taking cognizance against the petitioner for the offence under Sections 13(1)(c)(d) r/w. Section 13(2) of the Act. Consequently, the petition is allowed. The Order dated 05.11.2013 in Cr. No.95/2012 on the file of the learned Special Judge, Bangalore City and the proceedings in relation to, are hereby quashed.