Allowed

Sri Prabhu Shankar v. State of Karnataka

Karnataka HC8 Sept 2021CRL.P/2485/2020

Case brief

AI extract

What is this about?

Three criminal petitions by the same Assistant Commissioner of Police seeking quashing of FIRs registered by the Anti-Corruption Bureau under the Prevention of Corruption Act. The court found no complaint at all, no demand or acceptance, a second FIR over the same incident, unexplained delay and manifest malafide, and quashed all three FIRs.

What did the court decide?

FIRs registered against the petitioner in Crime Nos.15/2020, 16/2020 and 17/2020 by the respondents are quashed.

Sri Prabhu Shankar Vs State of Karnataka — Corruption | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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CRIMINAL PETITION NO.2470/2020 C/W. CRIMINAL PETITION NO.2473/2020 CRIMINAL PETITION NO.2485/2020

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IN CRIMINAL PETITION NO.2470/2020:

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BETWEEN:

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SRI PRABHU SHANKAR S/O MUNIYAPPA AGED ABOUT 50 YEARS ASST. COMMISSIONER OF POLICE RESIDING AT NO.1160 17^TH MAIN, 20^TH CROSS ‘A’ BLOCK, SAHAKARANAGAR BENGALURU-560 092.

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… PETITIONER

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(BY SRI A.S.PONNANNA, SENIOR COUNSEL FOR SMT.LEELA P.DEVADIGA, ADVOCATE)

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AND:

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1 . STATE OF KARNATAKA REPRESENTED BY ANTI-CORRUPTION BUREAU NO.49, KHANIJA BHAVAN RACE COURSE ROAD BENGALURU KARNATAKA-560 001.

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2 . THE DEPUTY COMMISSIONER OF POLICE CRIME-I, CITY CRIME BRANCH BENGALURU CITY-560 009.

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3 . SRI RAJENDRA DY.SP, ACB NO.49, KHANIJA BHAVAN RACE COURSE ROAD BENGALURU KARNATAKA-560 001. … RESPONDENTS

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(BY SRI MANMOHAN P.N, SPL.PP FOR R1 & R3; SRI V.M.SHEELVANT, SPP-I FOR R2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE FIR NO.17/2020 DATED 21.05.2020 IN CRIME NO.17/2020 REGISTERED BY THE RESPONDENT-ACB AND THE COMPLAINT DATED 21.05.2020 PRODUCED AT ANNEXURES-A AND B RESPECTIVELY AND ALL FURTHER PROCEEDINGS PURSUANT THERETO.

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IN CRIMINAL PETITION NO.2473/2020:

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BETWEEN:

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SRI PRABHU SHANKAR S/O MUNIYAPPA AGED ABOUT 50 YEARS ASST. COMMISSIONER OF POLICE RESIDING AT NO.1160 17^TH MAIN, 20^TH CROSS ‘A’ BLOCK, SAHAKARANAGAR BENGALURU-560 092. … PETITIONER

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(BY SRI A.S.PONNANNA, SENIOR COUNSEL FOR SMT.LEELA P.DEVADIGA, ADVOCATE)

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AND:

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1 . STATE OF KARNATAKA REPRESENTED BY ACB POLICE STATION KHANIJA BHAVAN, RACE COURSE ROAD BENGALURU CITY-560 001.

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2 . THE DEPUTY COMMISSIONER OF POLICE CRIME-II, CITY CRIME BRANCH BENGALURU CITY-560 009.

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3 . SRI RAJENDRA DY.SP, ACB ANTI CORRUPTION BUREAU NO.49, KHANIJA BHAVAN RACE COURSE ROAD BENGALURU KARNATAKA-560 001. … RESPONDENTS

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(BY SRI V.M.SHEELVANT, SPP-I FOR R2; SRI P.N.MANMOHAN, SPL.PP FOR R1 & R3)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE FIR NO.15/2020 DATED 21.05.2020 IN CRIME NO.15/2020 REGISTERED BY THE RESPONDENT - ACB AND THE COMPLAINT DATED 21.05.2020 PRODUCED AS ANNEXURES-A AND B RESPECTIVELY AND ALL FURTHER PROCEEDINGS PURSUANT THERETO.

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IN CRIMINAL PETITION NO.2485/2020:

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BETWEEN:

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SRI PRABHU SHANKAR S/O MUNIYAPPA AGED ABOUT 50 YEARS ASST. COMMISSIONER OF POLICE RESIDING AT NO.1160 17^TH MAIN, 20^TH CROSS ‘A’ BLOCK, SAHAKARANAGAR BENGALURU-560 092. … PETITIONER

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(BY SRI A.S.PONNANNA, SENIOR COUNSEL FOR SMT.LEELA P.DEVADIGA, ADVOCATE)

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AND:

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1 . STATE OF KARNATAKA REPRESENTED BY ANTI-CORRUPTION BUREAU NO.49, KHANIJA BHAVAN RACE COURSE ROAD BENGALURU, KARNATAKA-560 001.

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2 . THE DEPUTY COMMISSIONER OF POLICE CRIME-I, CITY CRIME BRANCH BENGALURU CITY-560 009.

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3 . SRI RAJENDRA DY.SP, ACB NO.49, KHANIJA BHAVAN RACE COURSE ROAD, BENGALURU KARNATAKA-560 001. … RESPONDENTS

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(BY SRI V.M.SHEELVANT, SPP-I FOR R2; SRI P.N.MANMOHAN, SPL. PP FOR R1 & R3)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE FIR NO.16/2020 DATED 21.05.2020 IN CRIME NO.16/2020 REGISTERED BY THE RESPONDENT ACB AND THE COMPLAINT DATED 21.05.2020 PRODUCED AT ANNEXURES-A AND B RESPECTIVELY AND ALL FURTHER PROCEEDINGS PURSUANT THERETO.

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THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 30.07.2021 THROUGH ‘VIDEO CONFERENCE’ THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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Criminal Petition No.2470/2020, Criminal Petition

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No.2473/2020 and Criminal Petition No.2485/2020, are filed by

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the same accused for the same offences of different crimes in Crime Nos.15/2020, 16/2020 and 17/2020, on the file of 23^rd Additional City Civil & Sessions Judge, Bengaluru City. Hence, all the petitions are taken up together for common disposal.

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The factual matrix of the case in Crl.P.No.2470/2020

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is that the petitioner was working as an Assistant Commissioner

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of Police in Central Crime Branch (‘CCB’), Bengaluru City, and he was a supervisory officer of the Economic Offences Wing in the CCB. That on 30.03.2020, a complaint came to be filed and registered by the Banaswadi Police Station as against one Surush and others for an offence punishable under Section 420 of IPC, making the allegation that manufacturing of masks in the Lab of the accused, situated in Banaswadi and the said masks containing the fake seals and certification to provide standardization for the masks manufactured by him. The said crime, which is numbered as Crime No.164/2020 and the same was transferred to CCB, by the Commissioner of Police, Bengaluru City, and one Shri Guruprasad, Police Inspector was appointed as the Investigating Officer. The CCB, accordingly, commenced their investigation. When the things stood thus, it appears that on 11.05.2020, the Joint Commissioner of Police – Crime-I, who is the head of the CCB, has addressed a letter to the second respondent that the petitioner and another Police Inspector Shri R.M.Ajay, have obtained money to close the case in Crime No.164/2020.

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Based on the said order, the third respondent herein

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has enquired the matter by recording the statement on

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12.05.2020. Based on the statement made by the third respondent, the second respondent addressed a letter on the very same day to the first respondent – police taking action against the petitioner and the Inspector of Police Shri R.M.Ajay. The first respondent based on the letter and the statement of the third respondent, have proceeded to register an FIR against the petitioner and the Police Inspector Shri R.M. Ajay in Crime No.64/2020 for the offences punishable under Sections 384 read with Section 34 of IPC.

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It is contended that when matters stood thus, the first respondent – ACB has registered an FIR in Crime No.17/2020 dated 21.05.2010 in respect of the same incident for the offences punishable under Sections 7A, 13(1)(a) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (‘the PC Act’ for short). The said FIR – Annexure ‘A’ is registered on the basis of a request made by the Deputy Superintendent of Police, ACB to the 23^rd Additional City Civil & Sessions Judge, Bengaluru. The said request made to the Court referring the various communications addressed by the Senior Police Officers, such as, Director General and Inspector General-Karnataka, Additional Director General of Police - ACB, Commissioner of

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Police, Bengaluru City etc., and a request to the Court to permit to carry out investigation into Crime No.17/2020 for the aforesaid offences under the PC Act. A copy of the FIR in Crime No.17/2020 registered by respondent – ACB dated 21.05.2020 and the complaint dated 21.05.2020 are produced as Annexures ‘A’ and ‘B’.

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It is also contended that in an identical fashion on 06.05.2020, the Joint Commissioner of Police had issued a letter/direction to the Deputy Commissioner of Police, Crime-I, to conduct an enquiry against the petitioner, with regard to another case in Crime No.167/2020 registered in Banasawadi Police Station with regard to illegal sale of cigarettes. Based on the said order, the Deputy Commissioner of Police, who conducted an enquiry and in an identical fashion recorded the statement of the accused person in that crime and writes a letter dated 12.05.2020, to the very same police, the first respondent herein, annexing the statement recorded by him in the course of his so called enquiry and the first respondent-police have registered another case against the petitioner and other inspector in Crime No.63/2020 for the offences punishable under Sections 384 read with Section 34 of IPC.

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In Crl.P.No.2473/2020, the petitioner is challenging

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to quash of FIR No.15/2020 dated 21.05.2020 for the offences punishable under Sections 7A, 13(1)(a) read with Section 13 (2) of the PC Act on the file of 23^rd Additional City Civil & Sessions Judge, Bengaluru City, wherein, an allegation is made against this petitioner that already a case has been registered against this petitioner in Crime No.63/2020 for the offences punishable under Section 384 read with Section 34 of IPC on the file of Cottonpet Police Station. Apart from that, a case has been registered against this petitioner for the offences punishable under Sections 7A, 13(1)(a) read with Section 13 (2) of the PC Act. An FIR is registered on the basis of the request made by the Deputy Superintendent of Police, ACB, to the 23^rd Additional City Civil & Sessions Judge, Bengaluru City. A case is registered against this petitioner that he indulged in taking the money from one Adil Azeez for illegal sale of cigarettes in Bengaluru City. The said FIR is produced at Annexure ‘A’ and a complaint is at Annexure ‘B’.

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In Crl.P.No.2485/2020, an allegation made against

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this petitioner is that on 09.05.2020, DCP Crime-II recorded the statement of Santosh s/o Babu Lal, wherein, he has stated that

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he is the distributor to sell cigarettes at Hanumanthanagara in the name and style of ‘Mahaveer Trading Company’. That on 25.04.2020, the CCB Police came to his shop and got locked the godown and took him to this petitioner and other two CCB officers told him to come on the next day and took the key and mobile into their custody. That on 27.04.2020, they went and met this petitioner and questioned him that he is illegally selling the cigarettes and also threatened him by saying that he would send him to jail. On the instructions of this petitioner, demanded Rs.30 Lakhs, but he agreed to pay Rs.1 Lakh. Thereafter, he had taken to this petitioner and they demanded Rs.30 Lakhs and told him to settle the issue with Babu Rajendra Prasad, President of Yelahanka Town. He went and spoke to him. He also demanded him for Rs.30 Lakhs and it was negotiated over the phone and settled the same for Rs.15 Lakhs. He gave the money to the said Babu Rajendra Prasad. Thereafter, he went and informed to this petitioner that he made the payment to Babu Rajendra Prasad and asked them to return the key and mobile. In the request made to the Court stated that this petitioner has received an amount of Rs.15 Lakhs and prima facie found that

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he had received the money. Hence, a request was made to the Court to register a case.

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In Crl.P.No.2470/2020, vide Annexure ‘B’, an allegation is made against this petitioner that a case has been registered in Crime No.164/2020 for an offence punishable under Section 420 of IPC. Hence, one Amzad called Shri Shaji George Thomas and requested him to help in the matter. The said Shaji George Thomas was having acquaintance with the Inspector Ajay. When he approached the Ajay, the said Ajay in his whatsapp told him to pay an amount of Rs.25 Lakhs to this petitioner. Accordingly, the amount was paid to the Inspector Ajay. This petitioner was indulged in taking the illegal money to help him to the said Surush and in the preliminary enquiry found the prima facie material against the petitioner and in terms of Annexure ‘B’ request was made to the 23^rd Additional City Civil & Sessions Judge, Bengaluru City, to register a case and investigate the matter.

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In Crl.P.No.2473/2020, vide Annexure ‘B’, an allegation made against this petitioner is that in the letter addressed to the Court requesting to register the case in

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K.R.Puram Police Station and have registered a case in Crime No.167/2020 and this petitioner was supervising the same and indulged in helping the persons, who are indulged in illegally selling the cigarettes in the market during the lockdown period. The allegation against this petitioner is that from the distributors an amount of Rs.70 lakhs was collected by one Adil Azeez and he entrusted the amount to one Rajendra Prasad and in turn the said Rajendra Prasad handed over Rs.30 Lakhs each to Bhushan to hand over the amount to this petitioner. Accordingly, he handed over the money. Hence, an allegation against this petitioner is that he indulged in taking the money illegally and out of Rs.60 Lakhs, Rs.25 lakhs is recovered from this petitioner. It is requested to register the case against this petitioner and also other two inspectors.

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The first contention of the learned counsel is that in criminal proceedings or setting the criminal law into motion in terms of the provisions of the Criminal Procedure Code was contemplated under the provisions of Sections 154 or Section 200 of Cr.P.C. The present instance is a very peculiar case, which does not fall within the required parameters or criteria either under Section 154 of Cr.P.C., or Section 200 of Cr.P.C. In

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the present case, the Deputy Superintendent of Police, ACB, who makes a request for investigation of a complaint as against the petitioner and others to the Court, is not in receipt of any information or complaint with regard to commission of a cognizable offence. Very strangely, an FIR is registered on the basis and the request made to the learned Sessions Judge by the very same person, who has made the request. Therefore, the Officer-in-Charge of the Police Station who has registered an FIR is himself the person who makes a request to the Court to carry out investigation into a complaint against the petitioner and others. The complaint or information available before the Officer-in-Charge of the Police Station containing such material for the Officer to reasonably believe commission of a cognizable offence which is sine qua non in terms of Section 154 of Cr.P.C., for commencement of criminal proceedings is patently absent in the present case. An FIR is registered on the basis of a request made by the Officer-in-Charge of a Police Station to the Sessions Court seeking permission to investigate the case.

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The learned counsel for the petitioner in all the petitions would vehemently contend that two cases already registered against this petitioner in connection with Cottonpet

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Crime No.63/2020 and another case in Crime No.64/2020 and an investigation was also going on. Apart from that, two cases have been registered i.e., Crime No.17/2020 and 15/2020 in respect of the same incident and other Crime No.16/2020, is registered for the offences punishable under Sections 7A, 13(1)(a) read with Section 13 (2) of the PC Act in all three cases.

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The said cases are registered at the request made by the Deputy Superintendent of Police, ACB to the 23^rd Additional City Civil & Sessions Judge, Bengaluru City. The said request made to the Court refers to various communications. The learned counsel would vehemently contend that any complaint or intimation is given to the respondent – Police with regard to commission of a cognizable offence then police can register the case if cognizable offence is found. Very strangely, the FIR is registered on the basis and also on the request made to the sessions Court. Therefore, the Officer-in-Charge of the Police Station who made the request to the Court himself has registered a case against this petitioner and it amounts to a prejudice to this petitioner. An FIR is registered based on the request made by the Officer-in-Charge of a Police Station to the

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Court. The procedure adopted by the respondents in making a request to the Court and on the basis of the request to registering a case is unknown to the criminal jurisprudence and the same is in gross violation of Section 154 and Section 200 of Cr.P.C.

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The learned counsel would vehemently contend that there is no demand and acceptance in order to invoke Sections 7A, 13(1)(a) read with Section 13 (2) of the PC Act. Hence, question of invoking those penal provisions against the petitioner is nothing but an abuse of process.

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The learned counsel also would vehemently contend that the criminal prosecution is evident from the records and the same is manifest with malafides and the entire proceedings are maliciously instituted with ulterior motive for wreaking vengeance.

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The learned counsel also vehemently contends that registration of a separate case under the PC Act amounts to a second FIR, which is not permissible under law since already first FIR are registered. In order to invoke the penal provision under the PC Act, the information available before the Officer-in-

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Chartge of the Police Station, must disclose the commission of a cognizable offence. In the event, there is no material available on the basis of the information Officer-in-Charge of a Police Station to reasonably believe that a cognizable offence discloses that an FIR cannot be registered and the criminal law cannot be set in motion. The fundamental requirement discloses the offence under the PC Act. There is no demand and acceptance or misappropriation or conversion for his own use in property entrusted to him. Hence, there cannot be any criminal prosecution against this petitioner under the PC Act.

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The learned counsel for the petitioner in support of his arguments relied upon the judgment of the Apex Court in the

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case of State of Haryana and others v. Bhajan Lal and others reported in 1992 Supp (1) SCC 335 , invoking Section 482 of Cr.P.C. The learned counsel in support of his arguments would vehemently contend that this case is aptly applicable to the case on hand, wherein, in order to wreak vengeance only a case has been registered against this petitioner.

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The learned counsel in support of his arguments also relied upon the judgment of the Apex Court in the case of

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T.T.Antony v. State of Kerala and others reported in (2001)

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6 SCC 181 , and brought to the notice of this Court paragraph Nos.18 to 20, wherein, the Apex Court held that, an information given under sub-section (1) of Section 154 of Cr.P.C., is commonly known as First Information Report (FIR) though this term is not used in the Code. It sets the criminal law in motion on the information and the same has to be entered in the Station House Diary and the same is implied in Section 154 of Cr.P.C. The scheme of Cr.P.C., is that an officer in charge of a Police Station has to commence investigation as provided under Section 156 or 157 Cr.P.C., on the basis of entry of the First Information Report. It is also clear that the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 Cr.P.C., only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. Thus, there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise

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to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 Cr.P.C. The learned counsel while referring to this judgment would vehemently contend that the second FIR is registered against this petitioner since already a case has been registered against the petitioner in respect of the same incident and the same is illegal and there cannot be two FIRs in respect of the same incident.

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The learned counsel also relied upon the judgment of the Apex Court in the case of Babubhai v. State of Gujarat and others reported in (2010) 12 SCC 254 , and referring to this judgment, the learned counsel would submit that the Apex Court discussed Sections 154, 161 and 162 Cr.P.C. permissibility of more than one FIR. Two FIRs in respect of same transaction and that subsequent to registration of an FIR, any further complaint in connection with the same or connected offence

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relating to the same incident or incidents, which are parts of the same transaction, is not permissible.

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The learned counsel while referring to paragraph No.14 would contend that, there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. The Apex Court held in this judgment that the investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the police station diary by the officer-in-charge under Section 158 of the Code of Criminal Procedure, 1973 and all other subsequent information would be covered by Section 162 Cr.P.C., for the reason that it is the duty of the investigating officer not merely to investigate the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and the investigating officer has to file one or more reports under Section 173 Cr.P.C.

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The learned counsel in support of his contention with regard to the delay is concerned; he relied upon the judgment of

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the Apex Court in the case of Thulia Kali v. The State of Tamil Nadu reported in (1972) 3 SCC 393 , and brought to the notice of this Court paragraph No.12, wherein, the Apex Court held that the first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.

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The learned counsel also brought to the notice of this

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Court the principles laid down in Bhajan Lal ’s case ( supra ), in paragraph No.102 of the judgment with regard to registration of the case manifestly with malafide intention in order to wreak vengeance.

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The learned counsel would vehemently contend that the demand and acceptance is the sine qua non for the offences under Sections 7 and 13 of the PC Act and the same is missing in the case on hand i.e., no demand and no acceptance and no recovery at the instance of the petitioner.

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The learned counsel in support of his contention, he relied upon the judgment of the Apex Court in the case of

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P.Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another reported in (2015) 10 SCC 152 , and brought to the notice of this Court paragraph Nos.13 to 27, wherein, the Apex Court held that in order to convict an accused for the offence under the PC Act proof of demand, the evidence of other witnesses is not sufficient to prove demand, though recovery proved. The Apex Court in paragraph No.19 discussed the very proviso of Sections 7 and 13

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of the PC Act while coming to such a conclusion that all should be corroborated proving beyond demand.

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The learned counsel also relied upon the judgment of

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the Apex Court reported in the case of Dashrath Singh Chauhan v. Central Bureau of Investigation reported in 2018 SCC OnLine SC 1841 , wherein, the Apex Court in paragraph Nos.19 and 20 held that, the basic requirements in such a case, namely, proving of “demand of bribe and its acceptance by the appellant”, the same has to be proved beyond reasonable doubt. The demand and acceptance are the sine qua non for initiating the proceedings against the petitioner for the offences under Sections 7A, 13(1)(a) read with Section 13 (2) of the PC Act.

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The learned counsel referring to the above judgments would vehemently contend that it is not in dispute that the second FIR has been registered with a malafide intention, there was a delay in registration of the case and also to overcome the interim order passed by this Court, other cases are registered. There is no complaint but an FIR is registered by the Dy.S.P., based on the requisition made to the Court and no

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complaint at all. Apart from that, there is no demand and acceptance, which is sine qua non for proceed against the accused for the offence under the PC Act. Though in the FIR, it is mentioned that the complaint is enclosed, no such complaint at all except requisition made to the Court. Hence, it requires an interference of this Court or otherwise it amounts to an abuse of process, which leads to miscarriage of justice.

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The learned counsel for respondent Nos.1 and 3 would vehemently contend that column No.4 of Annexure-A FIR, clearly discloses the place where the incident was taken place and request was made to the Court permitting the Investigating Officer to register the case and investigate the matter. No doubt, there is no complaint as mentioned in column No.9 of the FIR, but a detailed request was made to the Court and case has been registered. The initiation of these cases are not second FIR as contended by the petitioner and the offences are distinct. In the first complaint, case has been registered for the offence punishable under Section 384 read with Section 34 of IPC and the second FIR is not for the same offences. The source of information is also different and the incident is also different and hence it cannot be contended that the cases registered are

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second FIRs. There is no legal bar to register the case and on that ground and not to scuttle the investigation. In the other crimes, particularly in ACB Crime No.15/2020, 15/2020 no doubt the crime has been registered in respect of the same incident in Crime Nos.63/2020 and 64/2020 by Cottonpet police and Annexure-A clearly discloses that incident was taken place at Yelahanka and the main contention is that the second FIR is registered and the same is not proved.

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Crl.P.No.2485/2020 is in respect of Hanumanthnagar jurisdiction wherein illegal cigarettes are sold and collected an amount of Rs.15,00,000/-, but no second FIR with regard to this case and only the first FIR is registered in respect of this incident. The petitioner is not entitled for the relief under Section 482 of Cr.P.C.

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The learned counsel in support of his arguments relied upon several judgments, particularly in respect of the very contention that the Court cannot exercise the powers under Section 482 of Cr.P.C., relied upon the judgment of the Apex Court in the case of STATE OF BIHAR AND ANOTHER v. P.P. SHARMA, IAS AND ANOTHER reported in 1992 Supp (1)

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SCC 222. The learned counsel referring this judgment brought to the notice of this Court paragraph Nos.45 to 48, 59 and 68. In paragraph Nos.45 to 48, the Apex Court has discussed regarding the Code demarcates the field of investigation exclusively to the executive to be vigilant over law and order. The Police Officer has statutory power and right as a part to investigate the cognizable offence suspected to have been committed by an accused and bring the offender to book. The Investigating Officer is the arm of the law and plays pivotal role in the dispensation of criminal justice and maintenance of law and order. It is by his action that law becomes an actual positive force. It is also observed that the Investigating Officer would conduct in-depth investigation to discover truth while keeping in view the individual liberty with due observance of law. It is also observed that it is never his business to fabricate the evidence to connect the suspect with the commission of the crime. The Apex Court in paragraph No.59 has held that malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power. The learned counsel also brought to the notice of this

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Court paragraph No.68 wherein with regard to exercising of power under Article 226 of the Constitution of India, an observation is made that quashing the charge-sheet even before cognizance is taken by a criminal court amounts to “killing a stillborn child”. Till the criminal Court takes cognizance of the offence there is no criminal proceedings pending.

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The learned counsel also relied upon the judgment of the Apex Court in the case of P. CHIDAMBARAM v. DIRECTORATE OF ENFORCEMENT reported in (2019) 9 SCC 24 and brought to the notice of this Court paragraph Nos.64 to 66 wherein the Apex Court relied upon the judgment of State of Bihar v. P.P. Sharma in paragraph No.64 and in paragraph No.66 held that it is not the function of the Court to monitor the investigation process so long as the investigation does not violate any provision of law. It must be left to the discretion of the investigating agency to decide the course of investigation. If the Court is to interfere in each and every stage of the investigation and the interrogation of the accused, it would affect the normal course of investigation.

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The learned counsel also relied upon the judgment of

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the Apex Court in the case of DINESHBHAI CHANDUBHAI PATEL v. STATE OF GUJARAT AND OTHERS reported in (2018) 3 SCC 104, wherein the Apex Court held that the High Court has the inherent powers under Section 482 of Cr.P.C. and while exercising the said power, in context of challenge to FIR the principles was summarized and held that question is required to be examined, keeping in view, the contents of FIR and prima facie material, if any, requiring no proof.

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The learned counsel also relied upon the judgment of

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the Apex Court in the case of STATE OF ORISSA AND

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ANOTHER v. SAROJ KUMAR SAHOO reported in (2005) 13

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SCC 540 and referred paragraph No.11 of the judgment wherein the Apex Court held that while invoking Section 482 of Cr.P.C., the Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the

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issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.

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The learned counsel also relied upon the Apex Court judgment in the case of STATE OF ORISSA AND OTHERS v. UJJAL KUMAR BURDHAN reported in (2012) 4 SCC 547 and brought to the notice of this Court paragraph No.11, wherein with regard to exercising the power under Section 482 of Cr.P.C., the Apex Court held that the preliminary inquiry was yet

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to commence and an FIR was yet to be lodged. In the first instance, the High Court stayed the preliminary inquiry by an interim order in the writ petition, and then by the impugned judgment quashed the same. It goes without saying that commencement and completion of an investigation is necessary to test the veracity of the alleged commission of an offence. Any kind of hindrance or obstruction of the process of law from taking its normal course, without any supervening

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circumstances, in a casual manner, merely on the whims and fancy of the court tantamounts to miscarriage of justice.

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The learned counsel also relied upon the judgment of

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the Apex Court in the case of TEEJA DEVI ALIAS TRIZA DEVI v. STATE OF RAJASTHAN AND OTHERS reported in (2014) 15 SCC 221 and brought to the notice of this Court paragraph No.5, wherein the Apex Court has held that ordinarily power under Section 482 of Cr.P.C. should not be used to quash an FIR because that amounts to interfering with the statutory power of the police to investigate a cognizable offence in accordance with the provisions of Cr.P.C. As per law settled by a catena of judgments, if the allegations made in the FIR prima facie disclose a cognizable offence, interference with the investigation is not proper.

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The learned counsel also relied upon the judgment of the Apex Court in the case of VARSHABEN KANTILAL PURANI

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v. STATE OF GUJARAT AND OTHERS reported in (2019) 11

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SCC 774 and brought to the notice of this Court paragraph No.4 of the judgment, wherein the Apex Court has observed that the second FIR/subsequent FIR is permissible where the conspiracy

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discovered later is found to cover a much larger canvas with broader ramifications and it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimensions.

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The learned counsel also relied upon the judgment of the Apex Court in the case of ANJU CHAUDHARY v. STATE OF UTTAR PRADESH AND ANOTHER reported in (2013) 6 SCC 384 and brought to the notice of this Court paragraph Nos.14, 23 and 24. The Apex Court in paragraph No.14 discussed with regard to Section 154 of Cr.P.C. and filing of the report under Section 173 of Code wherein it is held that it is appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered. The most important aspect is to examine the inbuilt safeguards provided by the legislature in the very language of Section 154 of the Code. These safeguards can be safely deduced from the principle akin to double jeopardy, rule of fair investigation and further to prevent abuse of power by the investigating authority of the police. The Apex Court in

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paragraph No.23 held that it was not impermissible in law to treat the subsequent information report as the first information report and act thereupon. The Court applied the test of full consideration of the complaints on merits.

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The learned counsel also relied upon the judgment of the Apex Court in the case of K. KRISHNA v. STATE OF KARNATAKA reported in (1999) 3 SCC 247 and brought to the notice of this Court paragraph No.5 of the judgment wherein it is held that we do not find any provision in the Code which debars the filing of an FIR and investigating into the alleged offences merely because for an earlier period, there was a first information report which was duly investigated into and culminated in a ‘B’ Form which was accepted by a competent court.

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The learned counsel also relied upon the judgment of the Apex Court in the case of NIRMAL SINGH KAHLON v.

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STATE OF PUNJAB AND OTHERS reported in ( 2009) 1 SCC 441 and brought to the notice of this Court paragraph No.67 of the judgment wherein it is held that the second FIR would be maintainable not only because there were different versions but

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when new discovery is made on factual foundations. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, second FIR is maintainable.

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The learned counsel also relied upon the judgment of the Apex Court in the case of SHIVSHANKAR SINGH v. STATE OF BIHAR AND ANOTHER reported in (2012) 1 SCC 130 and brought to the notice of this Court paragraph No.18, wherein it is held that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the Court.

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The learned counsel also relied upon the judgment of the Apex Court in the case of A.R. ANTULAY v. RAMDAS SRINIWAS NAYAK AND ANOTHER reported in (1984) 2 SCC 500 and brought to the notice of this Court paragraph No.6 wherein the Apex Court held with regard to the scheme of Cr.P.C. envisages two parallel and independent agencies for

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taking criminal offences to Court. The counsel also produced mahazars and statement of witnesses in all the Crime in support of their contentions.

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Having heard the learned counsel for the petitioner and the learned counsel for the respondents and also the principles laid down in the judgments referred supra, this Court has to analyse the material available on record to come to a right conclusion whether it is an abuse of process in order to wreck vengeance or a fit case to proceed against the petitioner herein.

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Before considering the material available on record, it is appropriate to consider the penal provisions invoked against the petitioner herein in terms of Annexure-A FIR. The respondents have invoked Sections 7A, 13(1)(a) read with Section 13(2) of the Prevention of Corruption Act, 1988 in view of the amendment effected to the Prevention of Corruption (Amendment) Act, 2018. The penal provisions reads as follows:

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“7A. Taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence.– Whoever accepts or obtains or attempts to obtain from another person

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for himself or for any other person any undue advantage as a motive or reward to induce a public servant, by corrupt or illegal means or by exercise of his personal influence to perform or to cause performance of a public duty improperly or dishonestly or to forbear or to cause to forbear such public duty by such public servant or by another servant, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

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13. Criminal misconduct by a public servant.— (1) A public servant is said to commit the offence of criminal misconduct,—

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(a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do;

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(b) xxxxxxxxxxx

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(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years and shall also be liable to fine.

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Keeping in view these penal provisions, this Court has to look into the material available on record. On perusal of Annexure-A FIR in column No.5, the complainant’s name is mentioned as Sri Rajendra, who is respondent No.3 herein. Having perused column No.9 of the FIR, a request is made to the XXIII Additional City Civil and Sessions Judge, Bengaluru and the said request is also made by the very complainant stating demanded an amount of Rs.30,00,000/-. In the very same column, it is mentioned that separate complaint is enclosed and also mentioned the Government Order dated 19.05.2020. In column No.10, it is mentioned that the very same officer registered the case and taken up the further investigation.

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The main contention of the petitioner before this Court is that these FIRs are the second FIRs and earlier also in respect of the very same incident, other cases have been registered in Crime Nos.63/2020 and 64/2020. The other FIRs, which have been annexed pertaining to other cases in column Nos.5 and 9 and 10 is one and the same. The respondents are also not disputing that this is a second FIR in respect of the very same incidents but contention that destined offences. No doubt,

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the respective counsels have relied upon the citations referred supra and the citations quoted by the learned counsel for the petitioner held that second FIR is not permissible on subsequent information but can file number of report. It is settled law that there cannot be two FIRs’ in respect of the same incident. But no doubt the learned counsel for the respondents relied upon the Apex Court judgment in the case of Varshaben Kantilal Purani (supra), wherein it is held that second FIR is permissible where the criminal conspiracy is discovered later but in the case on hand, conspiracy not discovered, no criminal conspiracy offence has been invoked. In Anju Chaudhary (supra) case also held that where the incident are separate, offences are different, crime is such magnitude, then second FIR could be registered. But in the case on hand, incident is same, no subsequent crime is different, had the knowledge at the time of registration of first FIR and subsequent discovery as held in the judgment in the case of Nirmal Singh Kahlon case. Under the circumstances, the principles laid down in the judgment referred by the learned counsel for the respondents is not applicable to the facts of the case on hand. Having perused the request contents in these cases, the other two cases registered are in respect of the same

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incident. It is also important to note that there is a delay in registration of the case. In terms of Annexure-A FIR, the date of incident is 25.04.2020 in Crl.P.No.2485/2020. On perusal of FIR in Crl.P.No.2473/2020, the occurrence of the offence is dated from 20.04.2020 to 08.05.2020. In Crl.P.No.2470/2020 Annexure-A FIR discloses the date as 30.03.2020. In respect of two cases, two FIRs are on record and admittedly the FIRs are second FIRs and hence the judgment of the Apex Court in the case of Thulia Kali (supra), is apply applicable that the subsequent FIRs’ are creative and after thought, danger creeps in the introduction of coloured version, exaggerated account or concocted stay as a request of deliberation and consultation. The delay in registration of cases shrouded with suspicion.

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It is important to note that in these petitions first of all there is no complaint, as contended by the learned counsel for the petitioner. But the case is registered by respondent No.3 Dy.S.P., who is the complainant and he himself requested the XXIII Additional City Civil and Sessions Judge, Bengaluru and based on the said requisition made to the Court, case has been registered. The aggrieved persons have not given any complaint with regard to demand and acceptance and the same is only

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registered by respondent No.3. The Apex Court in the judgment in the cases of Dashrath Singh Chauhan and P.Satyanarayana Murthy (supra), categorically held that the demand and acceptance sine qua non for initiating the proceedings under Section 7(a) and 13(a) of the P.C. Act and the same is missing in the case on hand except the requisition by the Investigating Officer. It is also important to note that this Court granted stay in respect of earlier cases registered for the offence punishable under Section 384 of IPC and subsequently these two cases are registered. It is the contention of the learned counsel for the petitioner that to overcome the interim orders granted by this Court earlier the cases have been registered. It is important to note that there is a delay in registering of the case and I have already pointed out that the incidents have been mentioned in the month of March and April, but the cases have been registered in the month of May 2020. No doubt, the principles laid down by the judgment referred by the learned counsel for the respondents in the case of P.P. Sharma (supra), the Apex Court has held that if the Court entertain the 482 petition for quashing of the registration of the FIR, the same amounts to killing a stillborn child born and at the

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same time it has to be noted that the said child should be born legally and not by creating documents with malice intention if a person is booked it amounts to illegitimate child. No doubt, the Investigating Officer should be allowed to unearth the crime as held in the case of Dineshbhai Chandubhai Patel (supra), but complaint should disclose the cognizable offence. But in the case on hand, no complaint at all except the requisition of the Investigating Officer and the child is born at the hands of the Investigating Officer with malafide intention. If the complaint is manifest of malafide intention, the Court has to take note of the same. The criminal prosecution must be without any manifest of malafides and if it is based on the malafides, the Court can exercise the power under Section 482 of Cr.P.C.

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I have already pointed out that two cases are registered and the same amounts to second FIR since no complaint for second FIR and earlier case has been registered for the offence punishable under Section 384 of IPC. No doubt, the learned counsel for the respondents would contend that both the offences are distinct and in the earlier complaint IPC offences are invoked and in these proceedings Prevention of Corruption Act

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offences are invoked. I have already pointed out that in these cases, no complaint at all and respondent No.3, who is working as a Deputy Superintendent of Police he himself is the complainant in column No.5 of the FIR and he himself though claims in column No.9 that separate complaint has been enclosed, there is no such complaint and apart from that, he himself has registered the case giving requisition to the XXIII Additional City Civil and Sessions Judge, Bengaluru and hence the very contention of the learned counsel for the petitioner is that the very registration of the case against the petitioner is with manifest of malafides. The delay has not been properly explained and apart from that there is no any demand and acceptance which is sine quo non for registration of case under the P.C.Act and the same is missing and merely referred the name of this petitioner that illegal corrupt practice was made. In the absence of any demand and acceptance recovery, there cannot be any criminal prosecution that too under the P.C. Act. No doubt in one case, it is contended that recovery is made at the instance of the petitioner and in order to substantiate the same, there is no material at all except creation of documents. Though alleged that one Bhushan has handed over the amount

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to the petitioner, no material on record and the petitioner is not a part of the recovery proceedings except creation of mahazars at the instance of panchas. But it is only creation of documents by the respondents. No recovery of any bait money at the instance of the petitioner, only an allegation is that he has produced.

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Having perused the material available on record, it is a classic case of abuse of process. First of all, no complaint and apart from that no demand and acceptance and that too case has been initiated at the instance of respondent No.3 suo motu by giving requisition to the Court. It is important to note that other cases also have been registered against the petitioner herein and this Court has granted stay in respect of other proceedings in coming to the conclusion that there is no prima facie material. Thereafter, second FIR has been registered by the respondents in the absence of complaint and no allegations of demand and acceptance by this petitioner and only referred the name of other accused, who referred the name of the petitioner. Under the circumstances, the petitioner facing the criminal prosecution, which is serious in nature amounts to miscarriage of justice.

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This Court earlier granted an order of stay in these proceedings also in all the petitions and the same has been challenged before the Apex Court in S.L.P.(Crl.)Nos.387388/2021, 487-488/2021 and 493-494/2021 and though stay was granted at the first instance vide order dated 05.07.2021, those SLPs are dismissed confirming the order of stay granted by this Court. When the matter was listed for hearing, the Apex Court comes to the conclusion that no ground to interfere with the impugned orders passed by this Court and confirmed the order of stay granted by this Court.

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Having considered the material available on record, I have already pointed out that there is no any complaint and also two petitions are arising out of the second FIR and the very complainant himself has registered the case making request to the Court and no demand and acceptance which is sine quo non for registration of cases under the P.C. Act and when there is no demand and acceptance, the question of invoking P.C. Act, particularly Sections 7A and 13(1)(a) of the P.C. Act is nothing but an abuse of process. If this Court fails to exercise the powers under Section 482 of Cr.P.C. when there is no complaint,

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demand and acceptance and that too six cases are registered against this petitioner in one or the other either invoking IPC offence or P.C. Act and it is prima facie emerged that it is a clear case of abuse of process and infighting between the officers of the very same department for the reasons best known to them and booked the cases against this petitioner in one or the other and hence it is appropriate to invoke Section 482 of Cr.P.C.

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The Apex Court also in the judgment in the case of

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STATE OF KARNATAKA v. L. MUNISWAMY AND OTHERS

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reported in (1977) 2 SCC 699 with regard to the exercising the powers under Section 482 of Cr.P.C. held that in exercise of wholesome power, High Court is entitled to quash the proceedings if it comes to the conclusion that allowing the proceedings to continue would be an abuse of process of the Court or that the ends of justice require that the proceedings ought to be quashed. It is also observed that while exercising the jurisdiction under Section 482 of Cr.P.C., the powers ought not to be encased within the straight jacket of a rigid formula. It is the duty of the Court to consider judicially whether the material wants prosecution of a person. No doubt in the judgment of the Apex Court which has been referred by the

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learned counsel for the respondent in Dineshbhai Chandubhai Patel (supra), held that it is the duty of the Investigating Officer to examine the contents of the complaint and if prima facie discloses then the Court should not venture to exercise the power under Section 482 of Cr.P.C. and if no prima facie material is disclosed in the complaint, it amounts to an abuse of process, which leads to miscarriage of justice, then the Court can invoke Section 482 of Cr.P.C. But in the cases on hand, no complaints at all, except the requisition of the complainant to the Court.

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The Apex Court also in the judgment in the case of STATE OF HARYANA AND OTHERS v. BHAJANLAL AND

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OTHERS in paragraph No.102 has categorically held that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under the circumstances, the Court can exercise the powers under Section 482 of Cr.P.C. It is further held that the allegations in the FIR do not constitute a cognizable offence, but constitute only non-cognizable offence, no investigation is permitted by the police officer without an order

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of a Magistrate as contemplated under Section 155(2) of the Code and further given an illustration that in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, the Court can invoke Section 482 of Cr.P.C. The other circumstances illustrated by the Apex Court is that where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge, the Court can exercise the powers under Section 482 of Cr.P.C.

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Having considered the principles laid down in the judgment referred supra, I have already pointed out that no complaint, no demand and acceptance and the case is registered by the very same Dy.S.P. with the request to the Court in the form of requisition and the very same complainant who registered the case has taken up the investigation and number of cases are registered against the petitioner. This Court already pointed out that it is nothing but an infighting between the very same department officers for the reasons best known to them.

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Under such circumstances, the registration of the criminal case against the petitioner is nothing but manifest of malafides and also there is a delay in registration of the case. The aggrieved persons have not given any complaint and instead of suo motu cases are registered by the complainant only on the basis of the requisition made to the Court and there is no recovery. Under the circumstances, the registration of the case against this petitioner is without any basis and the requisition is also nothing but an absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion. If this Court fails to exercise the powers conferred under Section 482 of Cr.P.C., it will be failing in duty to prevent the abuse of process of law, which leads to miscarriage of justice. The cases are registered with the ulterior motive for wrecking vengeance on the accused and hence, this Court comes to the conclusion that it is nothing but an abuse of process.

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