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2015 DIGILAW 1084 (KAR)

K. v. Raghuram VS State

2015-09-10

RATHNAKALA

body2015
ORDER : Rathnakala, J. 1. The petitioners herein are charge sheeted for the offence punishable under Section 13(1)(d)(i)(11), (111) & 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 ('the Act' for short) read with Section 34of IPC. They are the Motor Vehicle Inspectors. 2. The allegation is, on 11.3.2013 they were on duty from 8.00 a.m. till 8.00 a.m. of 12.3.2013 near the Checkpost, Bagepalli, Chikkaballapura District. During the course, they have collected less licence fee of Rs. 63,600/- and penalty amount from the drivers of the vehicles passing through the Checkpost and misappropriated Rs. 2,30,600/-, which they had collected extra; on 12.3.2013 after their duty hours, they shared gratification money among themselves and also third accused/driver of the vehicle bearing registration No. KA-04/C-5265 and while they were proceeding in the said car, the vehicle was intercepted by the Police Inspector of Lokayuktha; Rs. 52,590/- from first accused; Rs. 60,970/- from second accused and Rs. 17,040/- from the driver and Rs. 1,00,000/- underneath the seat of the driver, totally Rs. 2,30,600/- was seized under mahazar, which was the amount collected by them illegally from the vehicle drivers. It is not in dispute that, after filing of the charge sheet, the petitioners sought for discharge before the Special Court, which came to be rejected. They took the matter in revision before this Court in Criminal Revision Petition No. 919/2014. The said Revision Petition was dismissed as withdrawn vide order dated 26.2.2015. Para-2 of the said order reads thus: "2. During the course of hearing, learned Counsel for the petitioners submits that, the primary contention is violation of 2nd proviso to Section 17 of the Prevention of Corruption Act, 1988. It is pointed out that the said point has not been agitated before the Court below. In this background, the petitioners' counsel sought to withdraw the above petition and submits that he would opt to invoke the provision of Section 482 challenging the entire charge sheet. The petitioner has filed a memo to that effect." 3. Sri. It is pointed out that the said point has not been agitated before the Court below. In this background, the petitioners' counsel sought to withdraw the above petition and submits that he would opt to invoke the provision of Section 482 challenging the entire charge sheet. The petitioner has filed a memo to that effect." 3. Sri. P.N. Hegde, learned Counsel appearing for the petitioners, with regard to maintainability of petition against an order, which is amenable for revisional jurisdiction, submits that the petitioners are granted permission in Criminal Revision Petition No. 919/2014 to file the present petition under Section 482 of Cr.P.C. in identical situation, petitioners of Criminal Revision Petition No. 2025/2009 got the revision petition withdrawn and when filed a petition under Section 482 of Cr.P.C. (Criminal Petition No. 2066/2010), this Court in the light of the judgment of the Apex Court in the case of Krishnan v. Krishnaveni reported in AIR 1997 SC 987 held that the petition under Section 482 of Cr.P.C. was maintainable and the petition was allowed on merits. Learned Counsel further submits that, the petitioners are charge sheeted on two counts. One is for possession of disproportionate wealth under Section 13(1)(e) and the other is under Section 13(1)(d) of the Act. Section 17 of the Act envisages the rank of the Police Officer, who can investigate the offence under Section 13(e) of the Act. The proviso to Section 17 contemplates that such offence cannot be investigated without the order of the Police Officer not below the rank of a Superintendent of Police. In this case, the Investigating Officer is of the rank of Police Inspector. Hence, the entire investigation insofar as Section 13(e) is concerned, shall go. Learned Counsel in this regard relies on the judgments of the Apex Court - (1) State of Haryana and others v. Ch. Bhajan Lal and others reported in AIR 1992 SC 604 (1); (2) State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri reported in (2006) 7 SCC 172 . Further his submission in respect of allegation under Section 13(1)(d) of the Act is, the Investigating Officer intercepted the petitioners while they were on their way from duty to their residences, on the Highway. Further his submission in respect of allegation under Section 13(1)(d) of the Act is, the Investigating Officer intercepted the petitioners while they were on their way from duty to their residences, on the Highway. The petitioners had given the explanation about the money in their possession and also named one Parameshwar Gowda, an Officer working in Defence at Assam, who had handed over the amount for purchase of four wheeler. Without recording the statement of said person, the Investigating Officer has filed the charge sheet; as such, there was no complaint from any quarters that the petitioners had demanded and accepted the illegal gratification. The ingredients of Section 13(1)(d)hence are not at all attracted in this case. In this regard, he relies on the judgments of (1) M.R. Purushotham v. State of Karnataka reported in 2014 AIR SCW 5740; (2) Satvir Singh v. State of Delhi thru. CBI reported in AIR 2014 SC 3798 and (3) unreported judgment in Criminal Appeal No. 192/2015 in the matter of C. Sukumaran v. State of Kerala and submits that, in the absence of any demand and acceptance of illegal gratification, no case having been made out under Section 13(1)(d) of the Act, the entire charge sheet cannot be sustained and the criminal proceedings are liable to be quashed. 4. With regard to first contention about non-compliance of the second proviso to Section17, in respect of the charge under Section 13(1)(e) of the Act, the submission of the learned Special Public Prosecutor for Lokayuktha is, this contention having not been raised at the earliest point of time before the Trial Court, it could not have been urged in the Revisional Court. Hence, said contention is not available to the petitioners in the present petition. However, in the light of the judgment of the Apex Court in the matter of Union of India etc. v. T. Nathamuni reported in 2015 AIR SCW 165 and also in the matter of H.N. Rishbud and Inder Singh v. State of Delhi reported in AIR 1955 SC 196 , when it is brought to the notice of the Court about breach of mandatory provision relating to investigation, the nature and extent of the violation shall be considered and appropriate order for such re-investigation either wholly or partly may be passed. Further Special Public Prosecutor adds, the submission of the learned Counsel for the petitioners with regard to the charges under Section 13(1)(d) is concerned, though there is no complaint against the petitioners about the demand and acceptance of illegal gratification, the fact remains that at the wee hours of the morning, the petitioners while they left their work place, were found with a cash amount of Rs. 2,30,600/-. As per the contents of the mahazar itself, on seeing the Investigating Officer, one of the accused/petitioner No. 1 threw the currency bundle out of the window of the vehicle, which is a very suspicious circumstance. In the Cash Declaration Register maintained in the office of the petitioners, petitioner No. 1 had declared Rs. 950/- and petitioner No. 2 had declared Rs. 950/-. Thought they have given explanation naming a person who had given that money to them, said person is a fictitious person and it is for the petitioners during the trial to establish their innocence by adducing defence evidence. Placing reliance on (2000)8 SCC 382 in the matter of State of West Bengal v. Mir Mohammad and AIR 2015 SCW 1143 in the matter of Vinod Kumar v. State of Punjab, he submits that, when no valid explanation was offered by the petitioners regarding excess money in their possession, a legitimate presumption would arise that they had received the amount as illegal gratification only. 5. In the light of the above rival submissions, the points that would arise for my consideration are: "1) Whether the petitioners can maintain the present petition even after getting their revision petition withdrawn? 2) Whether the entire investigation in respect of the offence under Section 13(1)(e) of the Act shall go on, in view of the procedural lapses in the investigation? 3) Whether the allegation under Section 13(1)(d) of the Act cannot be sustained for want of evidence of demand and acceptance of gratification?" 6. Obviously in the earlier petition filed by the petitioners in Crl. R.P. No. 919/2014, though the petitioners had expressed their intention to prefer a petition under Section 482 of Cr.P.C. challenging the entire charge sheet, no liberty was reserved for them to raise all the contentions which they had raised in the revision petition; they were only permitted to withdraw the revision petition. R.P. No. 919/2014, though the petitioners had expressed their intention to prefer a petition under Section 482 of Cr.P.C. challenging the entire charge sheet, no liberty was reserved for them to raise all the contentions which they had raised in the revision petition; they were only permitted to withdraw the revision petition. However a Coordinate Bench of this Court in Criminal Petition No. 2066/2010 in the light of the judgment of the Apex Court in Krishnan's case (supra) has held that, to meet the ends of justice or to prevent abuse of the process of the court, the inherent power of the High Court is preserved and in exercise of said inherent power, in an appropriate case even though revisional power under Section 397(1) read with Section 401 of the Code is barred, the High Court can exercise its power under Section 482sparingly to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. Since in this case, the contentions urged by the petitioners in their revision petition were not adjudicated on its merits and while withdrawing the petition, they had brought to the notice of the revisional court about their intention to file the present petition under Section 482 of Cr.P.C., the first point for my consideration has to be answered necessarily in their favour. 7. It is the mandate of law under Section 17 of the Act that in respect of the allegation under Section 13(1)(e) of the Act, investigation cannot be carried out without an order of the Superintendent of Police. As the records speak, no permission or order was issued by the Superintendent of Police to carry out investigation in respect of Section 13(1)(e) of the Act. However, in the light of the judgment of the Apex Court in Bhajan Lal’s case (supra), wherein at para-125 it is held thus: "125. As the records speak, no permission or order was issued by the Superintendent of Police to carry out investigation in respect of Section 13(1)(e) of the Act. However, in the light of the judgment of the Apex Court in Bhajan Lal’s case (supra), wherein at para-125 it is held thus: "125. It has been ruled by this Court in several decisions that Section 5A of the Act is mandatory and not directory and the investigation conducted in violation thereof bears the stamp of illegality but that illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the Court for trial and where the cognizance of the case has in fact been taken and the case is proceeded to termination the validity of the proceedings with the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. See (1) H.N. Rishbud and Inder Singh v. State of Delhi AIR 1955 SC 196 ) (supra); (2) Major B.G. Barsay v. State of Bombay (1962) 2 SCR 195 ; ( AIR 1961 SC 1762 ); (3) Munna Lal v. State of Uttar Pradesh (1964) 3 SCR 88 ; AIR 1964 SC 28 ); (4) S.N. Bose v. State of Bihar (1968) 3 SCR 563 ; AIR 1968 SC 1292 ); (5) Muni Lal v. Delhi Administration (1971) 2 SCC 48 ; ( AIR 1971 SC 1525 ) and (6) Khandu Sonu Dhobi v. State of Maharashtra (1972) 3 SCR 510 ; ( AIR 1972 SC 958 ). However, in Rishbud's case and Muni Lal's case, it has been ruled that if any breach of the said mandatory provision relating to investigation is brought to the notice of the Court at an early stage of the trial, the Court will have to consider the nature and extent of the violation and pass appropriate orders as may be called for to rectify the illegality and cure the defects in the investigation". It is required that the procedural lapse and omission in the investigation requires to be set right by affording opportunity to the Investigator to follow the procedure contemplated in second proviso to Section 17 of the Act. It is required that the procedural lapse and omission in the investigation requires to be set right by affording opportunity to the Investigator to follow the procedure contemplated in second proviso to Section 17 of the Act. If that is so, the charge sheet filed in respect of the offence under Section 13(1)(e) of the Act is vitiated and if the Investigating Officer after following the procedure under Section 13(1)(e) holds any investigation in respect of the said allegation, he is at liberty to file additional charge sheet. 8. In respect of the offence punishable under Section 13(1)(d) of the Act, the Trial Court in the body of its order on facts has observed that a prima facie case is established and the inference has to be drawn that the gratification was accepted as a motive or reward for doing any official act. In the backdrop of the undisputed facts, which are displayed before the Court, it cannot be said that the observation made by the Special Court is either perverse or arbitrary. There are instances where the accused charge sheeted for the offence under the Prevention of Corruption Act under Section 13(1)(d), though the complainant turned hostile, have been convicted for the said offence (AIR 2015 SCW 1143 (supra); State of Gujarat v. Tejbhai Karimbhai Vora reported in 1999 CriLJ 2655). 9. In that view of the matter, though there is no direct material available about demand and acceptance of bribe money, it is not in the interest of justice to quash the charge sheet at this stage itself under the extraordinary jurisdiction of this Court under Section 482 of Cr.P.C. With the above observation, this petition is partly allowed. The charge sheet so far it relates to the allegation under Section 13(1)(e) of the Prevention of Corruption Act, 1988, is hereby quashed. Liberty is reserved to the prosecution to file additional charge sheet, if they so intend, in strict adherence to the procedure contemplated under the Act.