Allowed

The State of Karnataka by v. H.K.Mariswamy

Karnataka HC4 Feb 2021CRL.RP/312/2014

Case brief

AI extract

What is this about?

High Court allowed a revision petition challenging the discharge of accused persons in a corruption case. The Special Court erred in dismissing the case by considering accused documents and assessing merits. The High Court directed the trial court to continue proceedings based only on prosecution materials.

What did the court decide?

Impugned order dated 28.12.2013 discharging respondents set aside; Special Court directed to continue trial in accordance with law.

The State of Karnataka by Vs H.K.Mariswamy — Corruption | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF FEBRUARY, 2021

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BEFORE

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THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

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CRIMINAL REVISION PETITION No.312 OF 2014

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BETWEEN:

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THE STATE OF KARNATAKA BY THE POLICE INSPECTOR, KARNATAKA LOKAYUKTHA POLICE, HASSAN.

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...PETITIONER

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(BY SRI B.S. PRASAD, ADVOCATE )

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AND:

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1 . H.K.MARISWAMY S/O. LATE KALA JAVARAIAH, AGED ABOUT 49 YEARS, RANGE FOREST OFFIE, SAKALESHPURA RANGE, SAKALESHPUR.

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2 . LAKSHMIKANTHA @ KANTHA S/O.POOVAIAH, AGED ABOUT 26 YEARS, CAR DRIVER, YADIPUR VILLAGE,

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Crl.R.P.No.312/2014 2

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SOMWARPET TALUK, COORG DISTRICT.

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...RESPONDENTS

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(BY SRI R. SATISH, ADVOCATE FOR R1; SRI PRUTHVI WODEYAR, ADVOCATE FOR R2)

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This Criminal Revision Petition is filed under Section 397 read with S.401 of Cr.P.C. praying to set aside the Order dated 28.12.2013 passed by the Principal Sessions Judge and Special Judge at Hassan, in Special Case No.66/2013 discharging the respondent Nos.1 and 2 of the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and further direct the Special Court to frame the charges and to proceed with the trial.

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This Criminal Revision Petition coming on for Admission through Physical Hearing/Video Conferencing this day, the Court made the following:

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ORDER

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This is a revision petition filed by the complainant in

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Special Case No.66/2013, in the Court of Principal Sessions

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Judge and Special Judge at Hassan, (for brevity ‘Special Court’) alleging the offences against the present respondents punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for brevity, 'P.C. Act').

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The allegation made against the present respondents in the complaint is that the complainant who was a timber merchant when requested for the permit for cutting and transporting 35 firewood trees, the accused No.1 Range Forest Officer through accused No.2 his driver demanded as bribe, a sum of `10,000/-. Based on the complaint which complaint was also shown to have been supported by the recording of voice of the accused demanding the bribe, a trap was conducted. However, the accused No.1 was said to be not present at the time of trap in the office. But he asked the complainant to keep the cover containing money on the table and instructed a private vehicle driver to take the said cover. It was at that time the complainant police are said to have caught hold of

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Crl.R.P.No.312/2014 4

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accused No.2 and recovered the tainted currency notes from the possession of accused No.2. After the investigation, the Investigating Officer submitted chargesheet against both accused Nos.1 and 2. The accused No.1 being the Government servant is alleged to have accepted illegal gratification amount through accused No.2 who though a private driver of accused No.1 had received the illegal gratification on behalf of accused No.1. Thus the allegations for the offences punishable under Section 7, 13(1)(d) read with 13(2) of P.C. Act was made against the present respondents arraigning them as accused Nos.1 and 2.

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During the pendency of the said case, the accused filed an application seeking their discharge under Section 227 Code of Criminal procedure (for short, Cr.P.C.). The Special Court after hearing both side by its Order dated 28.12.2013, allowed the said application and discharged the accused from the alleged offences.

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Challenging the same, the complainant police have preferred the present revision petition.

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Learned counsels from both side are physically

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present. Heard arguments. Perused the materials placed before this Court.

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Learned counsel for the petitioner in his arguments submitted that while considering the application under Section 227 Cr.P.C., the Special court ought to have confined its scrutiny to the materials placed before it by the prosecution. On the other hand, the Special Court has considered few documents produced by the accused and though they were totally unconnected to the case before it, relying upon those documents, observing that the complainant was not having a good antecedent and also attempting to appreciate the materials of the accused, erroneously allowed the application. In his support, he also relied upon a few Judgments of the Supreme Court which would be referred to at the relevant stage hereafter.

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Learned counsel for the respondent No.1 in his

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single sentence argument submitted that the respondents herein (accused) have not received bribe and the complainant is facing two cases in 109/2010 and 676/2011. Though this Court specifically asked him as to what those numbers are about, and the nature of cases and also pending in which Court, learned counsel for the respondent was unable to give any further details in that regard.

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A perusal of the impugned order would go to

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show that the Trial Court while considering the application filed by the accused before it under Section 227 Cr.P.C. appears to have mainly concentrated on the copies of the two documents which are stated to be a copy of order sheet in C.C. No.676/2011 and FIR No.109/2010 which are stated to have been filed against the complainant and also a news item published in a newspaper called "Janatha Madhyama" dated 18.03.2010 which is said to have reported about the alleged involvement of the complainant

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Crl.R.P.No.312/2014 7

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in creating a fake permit and transporting the wood on the basis of the fake permit. Thus, at the time of considering Section 227 application it attempted to evaluate the conduct of the complainant. Added to that, a perusal of the impugned order would also go to show that it attempted to appreciate the merits of the case by making observation that there was no occasion for the complainant to approach accused No.1 for the permit. It further observed that complainant himself was involved in several other offences. Further it also evaluated the merits of the complaint by observing that when the departmental vehicle was granted to the accused No.1 there was no necessity for accused No.1 to engage the services of accused No.2 as driver. It further observed that the Investigating Officer had not collected any material to show that accused No.1 had a transaction with accused No.2. In this manner, the Trial Court not only attempted to evaluate the merit of the case before it, but also solely relied upon the certified copies of some of the documents

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said to have been showing the alleged involvement of the complainant in some of the forest offences.

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8. The Hon'ble Apex Court in State of Orissa Vs. Debendra Nath Padhi, reported in (2005) 1 SCC 568,

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with respect to Sections 227, 228, 239, 240, 91 and 482 of Cr.P.C. was pleased to observe that at the stage of framing of charge the Court can consider only the material produced by the prosecution. It did not accept the submission of the accused that the said interpretation of confining only to the materials placed by the prosecution would run ultra vires of Articles 14 and 21 of Constitution and would compel the accused to face the trial despite being in a position to produce unimpeachable and unassailable material to show his innocence at the stage of framing of the charge. It further observed that the expression “hearing the submission of the accused” as used in Section 227 Cr.P.C. means to hear the submissions of the accused on the record of the case as filed by the

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Crl.R.P.No.312/2014

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prosecution and documents submitted therewith, it cannot

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mean opportunity to file material to be granted to the accused.

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The Hon'ble Apex Court in the case of " M.E. Shivalingamurthy vs. Central Bureau of Investigation" in Criminal Appeal No.957/2017 vide Judgment dated 07.01.2020 , at paragraph Nos.25 to 28

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therein was pleased to observe as follows:

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"25. It is here that again it becomes necessary that we remind ourselves of the contours of the jurisdiction under Section 227 of the Cr.PC. The principle established is to take the materials produced by the prosecution, both in the form of oral statements and also documentary material, and act upon it without it been subjected to questioning through cross-examination and everything assumed in favour of the prosecution, if a scenario emerges where no offence, as alleged, is made out against the accused, it, undoubtedly, would enure to the benefit of the accused warranting the Trial Court to discharge the accused.

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It is not open to the accused to rely on material by way of defence and persuade the court to discharge him.

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Crl.R.P.No.312/2014

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However, what is the meaning of the expression “materials on the basis of which grave suspicion is aroused in the mind of the court’s”, which is not explained away? Can the accused explain away the material only with reference to the materials produced by the prosecution? Can the accused rely upon material which he chooses to produce at the stage?

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In view of the decisions of this Court that the accused can only rely on the materials which are produced by the prosecution, it must be understood that the grave suspicion, if it is established on the materials, should be explained away only in terms of the materials made available by the prosecution. No doubt, the accused may appeal to the broad probabilities to the case to persuade the court to discharge him.

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The above Judgments clearly go to show that

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at the stage of framing of charge, the Court need not have to go in depth of appreciation of the materials placed before it on its merit, but is required to look as to whether a prima facie case is made out by the prosecution to make the accused to face the trial for the alleged charges.

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Crl.R.P.No.312/2014

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Evaluation of the prosecution case on its merit at that stage is not within the purview of Section 227 Cr.P.C.

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The Special Court in the instant case has also made an observation that the material placed before it appears to be showing that the accused No.1 had already completed the work as such, the possibility of he demanding any bribe from the complainant does not arise but the same would also be a question of fact which is required to be the subject matter of trial. Therefore, the reasoning given by the Special Court for allowing the application filed by the accused under Section 227 Cr.P.C. since does not sustain in the light of the above analysis, the impugned order deserves to be set aside. Accordingly, I proceed to pass the following:

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ORDER

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The revision petition is allowed.

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The Order dated 28.12.2013 passed by the learned

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Principal Sessions Judge and Special Judge, Hassan, in Spl. Case No.66/2013 discharging the present respondent

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Crl.R.P.No.312/2014

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Nos.1 and 2 (accused Nos.1 and 2) of the offences punishable under Section 7, 13(1)(d) read with 13(2) of P.C. Act is set aside. Consequently the Special Court is required to proceed further in the matter in accordance with law.

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Registry to transmit a copy of this Order along with record of the Special Court to the said Court, forthwith.

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Sd/-

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sac*

The State of Karnataka by v. H.K.Mariswamy

Case brief

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What did the court decide?

The State of Karnataka by v. H.K.Mariswamy

Case brief

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