Allowed

State by S P v. Sri T Srinivasa

Karnataka HC29 Jun 2022CRL.RP/1281/2011

Case brief

AI extract

What is this about?

This Criminal Revision Petition challenged an order discharging an accused police officer in a corruption case. The High Court set aside the discharge, holding the Special Court erred in relying on departmental enquiry statements and invalidating sanction, mandating the trial court to proceed with the charge.

What did the court decide?

The discharge order dated 25-03-2011 is set aside. The Trial Court is directed to proceed with the trial and dispose of the matter within six months.

State by S P Vs Sri T Srinivasa — Corruption | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29^TH DAY OF JUNE, 2022

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BEFORE

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THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL REVISION PETITION No.1281 OF 2011

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BETWEEN:

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State by S.P. City Division, Karnataka Lokayuktha, Bangalore.

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..Petitioner

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(By Sri. Venkatesh S. Arbatti, Special Public Prosecutor)

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AND:

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Sri.T. Srinivasa, P.S.I (Law & Order), Subramanyapura Police Station, Bangalore R/o. B.W.S.S.B. Road, Near Municipal High School, Kanakapura Town, Bangalore Rural District.

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.. Respondent

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(By Sri. K.B.K. Swamy, Advocate)

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This Criminal Revision Petition is filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, praying to set aside the order dated 25-03-2011 passed by the Special Judge, XXIII Additional city civil & Sessions Judge, Bangalore City,

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Crl.R.P.No.1281/2011

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in Spl.C.C.No.107/2008 and direct the Trial Court to proceed with the trial in accordance with law, in the interest of justice.

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This Criminal Revision Petition having been heard through Physical Hearing/Video Conferencing Hearing and reserved on 31-05-2022 , coming on for pronouncement of orders this day, the Court made the following:

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O R D E R

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The Lokayukta Police, i.e. the revision petitioner herein had filed a charge sheet, alleging therein that the accused (respondent herein), while working as Sub-Inspector of Police (Law and Order) at Subramanyapura Police Station, Bengaluru, had demanded and accepted a bribe amount of a sum of `15,000/- from the complainant - Sri. M. Manjunath for getting vacated a Shed put up by the brother of the complainant and thus had committed the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, (hereinafter for brevity referred to as "the P.C. Act"). While the matter was pending in Special C.C.No.107/2008, in the Court of the learned XXIII Additional City Civil and Sessions Judge, Bangalore City

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Crl.R.P.No.1281/2011

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(hereinafter for brevity referred to as "the Special Court"),the present respondent as an accused filed an application under Section 227 of the Code of Criminal Procedure, 1973, (hereinafter for brevity referred to as "the Cr.P.C."), seeking his discharge from the alleged offences.

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The Special Court, after inviting objections to the said application from the complainant herein and hearing both side, by its order dated 25-03-2011, discharged the accused from the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the P.C. Act. Challenging the said order, the complainant Police has preferred the present revision petition.

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The revision petitioner (Complainant) - State is being represented by the learned Special Public Prosecutor.

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The Special Court's records were called for and the same are placed before this Court.

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Learned Special Public Prosecutor for the revision petitioner - State and the learned counsel for respondent (accused) are physically appearing in the Court.

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Heard the arguments from both side and perused the materials placed before this Court including the impugned order passed by the Special Court on the application filed by the accused under Section 227 of the Cr.P.C.

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After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is:

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Whether the impugned order passed by the Special Court on the application filed under Section 227 of the Cr.P.C., is perverse and erroneous, warranting interference at the hands of this Court?

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Learned Special Public Prosecutor for the revision

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petitioner/complainant in his argument contended that, the learned Judge of the Special Court, relying upon the evidence

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in the Disciplinary Enquiry said to have been given by the complainant - Sri. M. Manjunath, has given the benefit of the said deposition to the accused in the present case, as such, the acquittal of the accused in the Disciplinary Enquiry cannot be a ground for discharging him in a criminal case. He further submitted that the Special Court held that all materials seized were not placed before the Sanctioning Authority, as such, the sanctioning order was not acceptable. However, the said reasoning is also erroneous since all the materials were placed before the Sanctioning Authority. If there was any dispute regarding the sanctioning order, the same could have been the subject matter in the trial, but could not be a ground to discharge the accused /respondent herein from the alleged offences.

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In his support, he relied upon few judgments of the Hon'ble Apex Court which would be relied upon at the relevant places hereafterwards.

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Learned counsel for the respondent/accused in his argument submitted that, the materials placed before the Sanctioning Authority while getting sanction were incomplete since the statements of one Sri. Sundar Rao (P.C.No.6382) and one Sri. Nagaraju (P.C.No.8301) were not placed before the Sanctioning Authority. He further submitted that since the Sanctioning Authority did not appreciate the materials with respect to hand wash in its proper perspective, the said sanctioning order is not a valid sanctioning order. He further submitted that CW-2 - Vageesh, a shadow witness has stated that there was no demand made by the accused for the bribe. Hence, when there is no demand made by the accused, the question of accepting the same by him does not arise. He also stated that the Special Court has no bar in referring the materials other than the charge sheet materials while considering the application filed under Section 227 of the Cr.P.C.

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In his support, he relied upon few judgments of the Hon'ble Apex Court which would be relied upon at the relevant stages hereafterwards.

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The first contention of the learned Special Public Prosecutor for the revision petitioner/complainant was that, the Special Court considered the materials placed by the accused, but did not consider the materials placed by the complainant in its proper perspective. He submitted that at the time of framing of the charge, the Court is bound to consider only the materials placed by the prosecution, but not the one placed by the accused's side.

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In his support, he relied upon the judgment of the Hon’ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi reported in (2005) 1 Supreme Court Cases 568 .

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Per contra, learned counsel for the respondent/ accused in his argument submitted that, the Special Court had

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no bar in referring the materials other than the charge sheet materials, as such, the Special Court was justified in relying upon the statements of the witnesses in Departmental Enquiry and allowing the application filed by the accused.

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In his support, the learned counsel relied upon a judgment of the Hon’ble Apex Court in the case of Satish Mehra Vs. Delhi Administration and another reported in (1996) 9 Supreme Court Cases 766 .

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A perusal of the impugned order passed by the

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Special Court would go to show that, the Special Court for discharging the accused from the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the P.C. Act, has mainly relied upon the alleged statement of the complainant in the alleged Departmental Enquiry. It has extracted the alleged statement of the complainant and arrived at a conclusion that from the perusal of the said statement of the complainant it was evident that there was no

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prima facie case made out by the prosecution to frame the charges levelled against the accused.

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In Satish Mehra’s case (supra) , a Division Bench of

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the Hon'ble Apex Court, while dealing with Section 227, 228, 239, 240 and 226 and 482 of the Cr.P.C., was pleased to observe that if the accused succeeds in providing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. The said observation of the Hon'ble Apex Court in Satish Mehra’s case (supra) was over ruled in the case of Debendra Nath Padhi’s case (supra), wherein the three Judges’ Bench of the Hon’ble Apex Court was pleased to observe that, at the stage of framing of charges, the Court can consider only the material produced by the prosecution. There is no provision in the Code of Criminal Procedure granting to the accused any right

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to file any material or document at the said stage. That right

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is granted to the accused only at the stage of trial.

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The Hon'ble Apex Court in the case of Rukmini Narvekar Vs. Vijaya Satardekar and others reported in (2008) 14 Supreme Court Cases 1 was pleased to observe with respect to Section 227 of the Cr.P.C. that, at the time of framing of charge, the Trial Court can consider only such material as are placed by the Investigating Agency. There is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge. At the stage of framing of charge, hearing the submissions of the accused has to be confined only to the material produced by the Police. It was further observed in the same case that ordinarily the defence material cannot be looked into by the Court at the time of framing of the charge. In very rare cases, the defence material can be looked into though this should be done where the defence produces some

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materials which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.

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In the light of the above judgments, the Special

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Court’s reasoning that, no prima facie case was made out by the prosecution to frame the charge against the accused since was found to be solely based upon the alleged statement of the complainant in the Departmental Enquiry, is not a sound reasoning. The Special Court, without considering the other various materials placed before it appears to have hastily arrived at a conclusion based upon the said alleged statement of the complainant in a Departmental Enquiry and held that no prima facie case was made out against the accused.

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Learned counsel for the respondent (accused) also canvassed a point that there is no bar for the Court in a Criminal Case to consider the materials placed in a Departmental Enquiry and the finding given thereunder, as such, once a person is acquitted of the charges in a

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Departmental Enquiry, he cannot be subject to a criminal trial upon the same allegations. In that regard, he contended that the Special Court was justified in relying upon the statements of Sri. Sundar Rao and Sri. Nagaraju, Police Constables.

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In his support, he relied upon a judgment of the Hon’ble Apex Court in the case of Ashoo Surendranath Tewari Vs. Deputy Superintendent of Police, EOW, CBI and another reported in (2020) 9 Supreme Court Cases 636 and submitted that exoneration of the Delinquent Official in a Departmental Enquiry would prevent initiation of any criminal case against him for the same offence.

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In Ashoo Surendranath Tewari's case (supra), the Hon’ble Apex Court, in para.12 of its judgment, by referring to its previous judgment in the case of Radheshyam Kejriwal Vs. State of West Bengal reported in (2011) 3 Supreme Court Cases 581, had extracted para.38 of the said judgment, which has culled out the ratio as below:

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"38. The ratio which can be culled out from these decisions can broadly be stated as follows:

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(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;

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(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;

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(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;

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(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;

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(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;

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(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and

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(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standing of proof in criminal cases."

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With the said observation, the Hon’ble Apex Court was pleased to hold that exoneration on merits by the Central Vigilance Commission, where the allegation was found to be not sustainable at all and accused held innocent, then, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, on underlying principle of higher standard of proof in criminal cases.

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With respect to the aforesaid judgment, it is submitted that after Radheshyam Kejriwal's case (supra) , Hon’ble Apex Court in the case of State (NCT of Delhi) Vs. Ajay Kumar Tyagi reported in (2012) 9 Supreme Court Cases 685 with respect to quashing of criminal proceedings under Section 482 of the Cr.P.C. on the basis of exoneration in Disciplinary

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Enquiry proceedings based on some charge, was pleased to

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observe in paras. 24 and 25 of its judgment as follows:

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"24. Therefore, in our opinion, the High Court quashed the prosecution on total misreading of the judgment in

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P.S. Rajya Vs.State of Bihar: (1996) 9 Supreme Court

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Cases 1. In fact, there are precedents, to which we have referred to above, that speak eloquently a contrary view i.e. exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view commends us. It is well settled that the standard of proof in a department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case cannot be rejected on the basis of the evidence in the departmental proceeding or the report of the inquiry officer based on those evidence.

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25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result in the quashing of the criminal

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prosecution. We hasten to add however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further, they are not in the same hierarchy."

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The facts and circumstances of the case in Ashoo Surendranath Tewari's case (supra), differs from the one involved in the case on hand.

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Therefore, merely because the respondent/accused is said to have faced a Departmental Enquiry and is said to have been acquitted there, the same would not ipso facto entitle him to seek a discharge from the criminal case, without facing a trial.

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It was also contended by the learned counsel for the respondent/accused that the sanction granted by the

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Sanctioning Authority was not after application of its mind, since it did not consider the statements of one Sri. Sundar Rao and Sri. Nagaraju, who were said to be the Police Constables and said to have given their statements before the authority in the Departmental Enquiry.

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In the instant case, the Investigating Officer, has, as a part of charge sheet, filed the sanction order said to have been issued by the competent authority, first information report, complaint, property form, trap panchanama, statement of the accused, report from the chemical examiner, details of the articles seized, experimental trap, photographs with negatives, details of the articles seized during investigation and the statements of several of the charge sheet witnesses. According to the complainant - Police, the Sanctioning Authority, has, after perusing the materials pertaining to the matter and after applying its mind, has granted the impugned sanction. However, the Special Court, accepting the argument

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of the accused that the statements of one Sri. Sundar Rao and one Sri. Nagaraju were not placed before the Sanctioning Authority, as such, the materials placed before the Sanctioning Authority were incomplete, has, as one of the grounds for allowing the application, proceeded to allow the application filed by the accused.

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The Special Court, in the impugned order, apart from relying upon the statement of the complainant before the Disciplinary Authority has also considered the statements said to have been given by one Sri. Sundar Rao (P.C.No.6382), one Sri. Nagaraju (P.C.No.8301) and also of one Sri.C. Channaiah Assistant Sub-Inspector of Subramanyapura Police Station, Bengaluru. The Special Court observed that those witnesses have stated in their statements that, on 12-07-2007, at about 5:25 p.m., complainant Manjunath came to the chamber of the Police Sub-Inspector and talked with him. Immediately, the PSI (respondent) called them and stated that Manjunath

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has put the amount in his table drawer and he did not know why the said Manjunath had put the amount in his table drawer. The PSI also had asked them to call the complainant.

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It is relying upon those three alleged statements of one Sri. Sundar Rao, Sri. Nagaraju and Sri. C. Channaiah also, the Special Court held that the accused had not at all demanded or accepted the bribe amount from the complainant.

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In so far as the Sanctioning Authority not considering the alleged statement of Sri. Sundar Rao and Sri. Nagaraju is concerned, admittedly, Sri. Sundar Rao and Sri. Nagaraju are not the charge sheet witnesses before the Investigating Officer in the criminal case. It was because their statements were said to have been available before the Enquiring Authority, the said authority has proceeded to consider the same. On the other hand, the order passed by the Sanctioning Authority, granting the sanction, would go to

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show that the Sanctioning Authority, has, considered large amount of materials placed before him including the copies of the complaint, first information report, experimental trap panchanama, trap panchanama, the chemical examiner's report, and statements of not less than eight witnesses including the shadow witness, the file relating to the demand for bribe and the statement of the accused. It is after considering all these materials and passing a detailed, reasoned order, the said authority has proceeded to grant the sanction.

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With respect as to whether there was any demand from the accused for money is concerned, as observed above, the learned counsel for the respondent/accused submitted that the alleged statements of Sri. Sundar Rao and Sri. Nagaraju mentions that, PSI (accused) told them that, it was the complainant who put the money in his table drawer.

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At this stage, it has to be observed that, even if it is believed that, the said Sri.Sundar Rao and said Sri. Nagaraju have given their statements to that effect, still, their statements are based only upon what they were alleged to have been told by none else than the accused himself (PSI). It is not their statements that while they were seeing, it was the complainant himself, who had forcibly put money by opening the drawer of the table of the accused.

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On the contrary, though CW-2 - Vageesh, a shadow witness is shown to have stated that there was no demand made by the PSI (accused), but the very same witness, in his very same statement before the Investigating Officer, at page.4, in the very next sentence, has stated that, the complainant took out the currency notes from his pocket and handed over to the accused and the accused kept that amount in the drawer of his table. Therefore, a serious doubt arises, at this stage, in the defence of the accused as to how

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come if he has not made any demand, accepts the money said to have been given by the complainant and keeps by himself, the same into the drawer of his table. Therefore, the contention of the respondent (accused) that the nonconsideration of the statements of Sri.Sundar Rao and Sri. Nagaraju by the prosecution at the threshold itself vitiates the sanction granted by the Sanctioning Authority and that there are no materials to suspect the alleged demand made by the accused, is not acceptable.

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Surprisingly, the Special Court also did not consider these aspects including the one that the statements of said Sri. Sundar Rao and Sri. Nagaraju were hear-say regarding the presence of money in the drawer of the table of the accused. On the other hand, ignoring the statement of the shadow witness that, the accused received the money and himself put it in his table drawer, erroneously proceeded to

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hold that, no prima facie case is made out against the accused for the alleged offences.

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Thus, it is considering the materials placed before him, the Sanctioning Authority has passed a reasoned order. Even if it is assumed at this stage that there is some omission on the part of the Sanctioning Authority, the same has to be got clarified during the course of trial, since it is for the said Sanctioning Authority to clarify his order of sanction.

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The Hon’ble Apex Court in the case of Central Bureau of Investigation and others Vs. Pramila Virendra Kumar Agarwal and another reported in (2020) 17 Supreme Court Cases 664 , with respect to Sections 13(1)(e) read with Section 13 (2) and Section 19 of P.C. Act, where the question of validity of sanction for prosecution and the stage at which it has to be considered had arisen, was pleased to make a distinction between the absence of sanction and invalidity of sanction. It was pleased to observe that consideration of

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validity of sanction at the stage of discharge in revision by the High Court was erroneous and the conclusion reached was unsustainable. Absence of sanction, no doubt, can be agitated at the threshold, but invalidity of sanction can be considered only during trial.

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Therefore, in the case on hand, the alleged invalidity of sanction, either in the form of non-consideration of the alleged statements of Sri. Sundar Rao and Sri. Nagaraju or the Sanctioning Authority, not referring the hand wash of the accused, is not an absence of sanction, but it may be an alleged invalidity which cannot be considered at the stage of discharge of the accused, but the same can be considered only during trial.

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However, the Special Court, without considering all these aspects since has been carried away by the alleged statements of the complainant in the Departmental Enquiry and the incorrect analysis of the statements of Mr. Sundaraj

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and Mr. Nagaraju has arrived at an erroneous conclusion and also since has omitted the consideration of several other aspects, as analysed above, the impugned order of discharging the accused deserves to be set aside. Further, since there are sufficient materials to proceed in framing the charge against the accused and proceeding for trial, the impugned order deserves to be set aside.

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Accordingly, I proceed to pass the following:

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O R D E R

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[i] The Criminal Revision Petition stands

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allowed;

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[ii] The impugned order dated 25-03-2011, passed by the XXIII Additional City Civil and Sessions Judge, Bangalore City, in Special C.C. No.107/2008, discharging the accused before it/respondent herein from the offences punishable under Sections 7, 13(1)(d) read with Section 13(2)

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of the Prevention of Corruption Act, 1988, is set aside;

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[iii] The Court of learned XXIII Additional

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City Civil and Sessions Judge, Bangalore City, is directed to proceed in the matter, in accordance with law;

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[iv] Since the alleged incident is of the year 2007 and the subject case is of the year 2008, as such, nearly fifteen years' old matter, The Court of learned XXIII Additional City Civil and Sessions Judge, Bangalore City, is directed to expedite the matter and dispose of the same in accordance with law, within six months from the date of this order.

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Registry to transmit a copy of this order along with the Special Court's records to the Special Court, immediately.

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Sd/JUDGE

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BMV*

State by S P v. Sri T Srinivasa

Case brief

What is this about?

What did the court decide?

State by S P v. Sri T Srinivasa

Case brief

What is this about?

What did the court decide?

What the court decided

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