Quashed

Sri K S Linge Gowda v. the State of Karnataka

Karnataka HC2 Nov 2022CRL.P/1270/2022

Case brief

AI extract

What is this about?

High Court quashed an Anti Corruption Bureau FIR where the source report duplicated assets from a prior closed investigation by the Lokayukta Police. Due to the ACB's abolition, the court reserved liberty for the Lokayukta to initiate proceedings.

What did the court decide?

Criminal Petition allowed, crime in Crime No.5 of 2021 and pending proceedings quashed. Liberty reserved to Lokayukta to initiate proceedings.

Sri K S Linge Gowda Vs the State of Karnataka — Corruption | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02^ND DAY OF NOVEMBER, 2022 BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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CRIMINAL PETITION No.1270 OF 2022

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BETWEEN:

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SRI K.S.LINGE GOWDA S/O LATE R.SIDDEGOWDA AGED ABOUT 55 YEARS WORKING AS ASST. EXECUTIVE ENGINEER ENGINEERING DIVISION MANGALORE CITY CORPORATION MANGALURU – 575 004.

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R/AT “BHOOMIKAA” 1.S 16-1046/3 MALARAAYA TEMPLE CROSS ROAD HOIGE BAIL, ASSHOKA NAGARA MANGALURU – 575 006.

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... PETITIONER

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(BY SRI GOPALA, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA KARNATAKA LOKAYUKTA BENGALURU – 560 001.

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THE STATE OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT VIKAS SOUDHA BENGALURU – 560 001 REPRESENTED BY

PRINCIPAL SECRETARY.

... RESPONDENTS

(BY SRI B.B.PATIL, SPL.PP FOR R1; SMT.K.P.YASHODHA, HCGP FOR R2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE FIR IN CR.NO.5/2021 REGISTERED BY THE FIRST RESPONDENT-ACB POLICE, CHAMARAJANAGAR FOR THE OFFENCE P/U/S 13(1)(b) R/W 13(2) OF P.C ACT AGAINST THE PETITIONER ON THE FILE OF THE PRL.DISTRICT SESSIONS AND SPL.JUDGE, CHAMARAJANAGAR.

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 29.10.2022, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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The petitioner is before this Court calling in question registration of crime in Crime No.5 of 2021 by the then Anti Corruption Bureau/ACB for offences punishable under Section 13(1)(b) r/w 13(2) of the Prevention of Corruption Act, 1988 (‘the Act’ for short).

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Heard Sri. Gopala, learned counsel for petitioner, Sri. B.B.Patil, learned Special Public Prosecutor for Respondent No.1 and Smt.K.P.yashodha, High Court Government Pleader for Respondent No.2.

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Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:-

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The petitioner who is functioning as Executive Engineer in Mangalore Smart City Limited was appointed as a Junior Engineer in the Mangalore City Corporation (‘the Corporation’ for short) on 1212-1988 and has been promoted to higher echelons of office from time to time. When the petitioner was functioning as Assistant Engineer in the Corporation, sanction for prosecution was accorded on 24-09-2005 for offences punishable under Section 13(1)(e) and 13(2) of the Act on the ground that the petitioner had amassed wealth disproportionate to his known sources of income. In terms of sanction, the Police of the Lokayukta registered a crime in Crime No.3 of 2005 by drawing up source report with regard to acquisitions of the petitioner. The petitioner submitted his

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explanation letter with requisite documents during the investigation. The investigation resulted in filing of ‘B’ report by the Lokayukta Police. On 30.09.2008, the concerned Court accepts the ‘B’ report and closes proceedings.

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After acceptance of ‘B’ report and closure of the case against the petitioner, 13 years thereafter, the then Anti Corruption Bureau seeks to register a crime against the petitioner in Crime No.5 of 2021 drawing up a source report which admittedly included the period for which earlier crime was registered against the petitioner which had ended in filing of ‘B’ report. Registration of the said crime in Crime No.5 of 2021 for offences punishable under Sections 13(1)(b) r/w 13(2) of the Act is what drives the petitioner to this Court in the subject petition.

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The learned counsel appearing for the petitioner submits that earlier, for the very same check period i.e., from the date of entry of the petitioner to service till 01-10-2005 the Lokayukta Police had registered a crime and filed a ‘B’ report after investigation by arriving at the conclusion that disproportionate

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assets was only 7.10%. Once the ‘B’ report had been accepted by the concerned Court way back on 29.11.2008 and proceedings closed, further proceedings for the very same check period could not have been instituted by then Anti Corruption Bureau. He would seek quashment of entire proceedings.

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On the other hand, the learned counsel for the respondents would contend that Anti Corruption Bureau was not aware of the fact of the Lokayukta Police registering a crime against the petitioner and it having ended in filing of a ‘B’ report and the ‘B’ report being accepted by the Court. It is, therefore, the crime is registered based upon a source report newly drawn up. He would submit that the Investigating Officer has filed an Affidavit seeking permission of the Court to continue the investigation leaving out the period for which earlier crime had been registered and therefore, seeks leave of this Court to continue the investigation insofar as the check period between 2005 and 2021.

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I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.

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The afore-narrated facts are not in dispute. A crime comes to be registered against the petitioner in Crime No.3 of 2005 for offences punishable under Section 13(1)(e) r/w 13(2) of the Act. The check period that the Lokayukta Police would draw was between 12-12-1988 and 1-10-2005. For this check period, the Lokayukta Police conduct investigation and file a ‘B’ report before the Sessions Court, Mangalore. The Court accepted the ‘B’ report in accordance with law and closed the proceedings against the petitioner on 29.11.2008. The afore-quoted facts are not in dispute as they are a matter of record.

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Later, after about 13 years of closure of the case in Crime No.3 of 2005, a source report is generated against the petitioner which becomes the material for registration of a crime in Crime No.5 of 2021. The source report that was drawn included the period from 12-12-1988 to 01-10-2005 as the computation made in the source report is inclusive of the properties/wealth acquired by the petitioner during the said period. It is on the ground that the check period could not have been included in the period that had already been investigated into and a ‘B’ report filed by the

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Lokayukta Police, the petitioner has now knocked the doors of this Court. The Investigating Officer files an affidavit before this Court which reads thus:

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“I, Sadananda A. Thippannvar, S/o Adiveppa, aged 50 years, A.C.B, Chamarajanagar, now at Bengaluru do hereby solemnly affirm and state on oath as follows:

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1. I state that I am the Dy.S.P. of the 1^st respondent Bureau and investigation officer in the above matter. I am aware of the facts of the case.

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2. I state that the above petition is filed seeking to quash the FIR in Crime No.5 of 2021 on the file of Principal District and Sessions Judge and Special Judge, Chamarajnagar.

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3. I state that the Superintendent of Police, Karnataka Lokayukta, Mangaluru, had filed B report dated 30-09-2008 in Crime No.3 of 2005 in respect of check period 12-12-1988 till 1- 10-2005. I further state that I was not aware of the said report and hence FIR in Crime No.5 of 2021 was registered as against the petitioner based on the source report 19-11-2021 for the check period 1988 till 2021.

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4. I state that in view of the said B report filed by the Karnataka Lokayukta, I shall not investigate for the check period 12-12-1988 till 1-10-2005 and I shall restrict the investigation for check period 2-10-2005 till 23-11-2021.

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5. I state that the respondent may be permitted to continue the investigation under the FIR dated 23-11-2021 in Crime No.5 of 2021 for the check period 2-10-2005 till 23-112021. I further state that if the investigation is continued from 2-10-2005 the petitioner will not be put to any hardship and the truth will be unearthed by way of investigation.

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I state that this affidavit may be taken on record in the interest of justice.”

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It is accepted by the respondent/ACB that it was not aware of the complaint being registered before the Lokayukta and the Lokayukta registering a crime in Crime No.3 of 2005 and it ending in filing of ‘B’ report. What is sought in the affidavit is permission to continue the investigation insofar as it pertains to the check period between 02-10-2005 till 23-11-2021. The issue whether the permission so sought to continue the investigation is to be accorded or otherwise would not arise.

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It is not in dispute that the source report drawn for registering of crime in Crime No.5 of 2021 contains those assets and liabilities that were already a subject matter of investigation in Crime No.3 of 2005 in which the Lokayukta Police themselves have filed a ‘B’ report pursuant to investigation. The reason for filing of ‘B’ report was disproportionate assets that was alleged then was only 7.1 per cent and the entire calculation now made to arrive at a prima facie conclusion of amassing wealth of disproportionate assets admittedly contains all those that were subject matter of investigation of Crime No.3 of 2005. The entire source report being a crime of the earlier check period which was already investigated

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into and ‘B’ report filed, merely because the Investigating Officer files an affidavit before this Court that he would continue the investigation for the subsequent check period, such investigation cannot be permitted to continue as the basis on which the registration of crime has come about is itself fundamentally flawed. There should have been application of mind or verification of records done, when the source report was being drawn, which formed the basis of crime in Crime No.5 of 2021.

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Since the entire disproportionate assets that is now alleged against the petitioner included the assets that were earlier investigated into and ‘B’ report filed and it forming a major part of the present allegation, I decline to permit such investigation to be continued. However, liberty is to be reserved to the respondent No.1/Lokayuykta to initiate proceedings, if it so desires, in accordance with law. The other development is that the office of the Anti Corruption Bureau which instituted the present proceedings has now been abolished by order of the Division Bench of this Court in W.P.No.19386/2016 and connected cases disposed on 11-08-2022.

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Therefore, in law since ACB not being in existence as on date and entire pending cases are transferred to the Lokayukta, it would be open to the Lokayukta to initiate such proceedings in accordance with law, bearing in mind the observation made in the course of the order.

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For the aforesaid reasons, I pass the following:

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O R D E R

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(i) Criminal Petition is allowed.

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(ii) Registration of crime in Crime No.5 of 2021 by the ACB Police Station, Chamarajnagar and proceedings pending before the Principal District and Sessions Judge, Chamarajnagar stand quashed.

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(iii) The quashment of crime in Crime No.5 of 2021 will not come in the way of Lokayukta initiating any such proceedings in accordance with law, bearing in mind the observations made in the course of this order.

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Consequently, I.A.No.2/2022, stands disposed.

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Sd/JUDGE

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bkp

Sri K S Linge Gowda v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri K S Linge Gowda v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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