Dismissed

Sri Gangadhara v. Maddikeri v State of Karnataka through the Karnataka

Karnataka HC24 May 2022CRL.RP/269/2019

Case brief

AI extract

What is this about?

Justice Sreenivas Harish Kumar dismissed the criminal revision petition challenging the dismissal of the petitioner's discharge application. The High Court held that a second FIR for a distinct offence detected during investigation was valid, and materials collected from a quashed complaint were admissible.

What did the court decide?

The criminal revision petition was dismissed; no costs.

Sri Gangadhara v Maddikeri Vs State of Karnataka through the… — Corruption | Karnataka HC (2022)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF MAY, 2022

¶2

BEFORE

¶3

THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

¶4

CRIMINAL REVISION PETITION NO.269/2019

¶5

BETWEEN:

¶6

Sri. Gangadhara V. Maddikeri, Aged 61 years, S/o Late M.Veeraiah Shetty, R/at C-156, K.P.W.D. Quarters, J4 Road, Jeevan Bhima Nagar, Bangalore-560 075.

¶7

…Petitioner

¶8

(By Sri.P.P.Hegde, Senior Advocate for Sri. Prasad K.R.Rao, Advocate)

¶9

AND:

¶10

State of Karnataka – Through the Karnataka Lokayuktha, Mangaluru Division, Mangaluru – 575 008, Represented by the State Public Prosecutor, Lokayuktha, High Court of Karnataka, Bengaluru – 560 001.

¶11

…Respondent (By Sri.Venkatesh S. Arabatti, Advocate)

¶12

:: 2 ::

¶13

This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C., praying to set aside the impugned order dated 5.10.2018 passed by the learned III Addl. Sessions and Special Judge, D.K., Mangaluru in Spl. Case No.157/2015, thereby dismissing the application filed by the petitioner/accused for discharge under section 239 of Cr.P.C., 1973 produced at Annexure ‘A’ etc.

¶14

This Criminal Revision Petition pertaining to Bengaluru Bench having been heard & reserved on 07.04.2022, coming on for pronouncement this day, the Court sitting at Kalaburagi Bench through video conferencing pronounced the following:

¶15

ORDER

¶16

Two main points that Sri P.P.Hegde, learned senior counsel for the petitioner, raised while arguing are :

¶17

(i) FIR registered in Crime No. 19/2013 is the second FIR for the offences in respect of which FIR was registered in Crime No. 15/2013.

¶18

:: 3 ::

¶19

(ii) In view of FIR in Crime No. 15/2013 being quashed under section 482 Cr.P.C in Criminal Petition No. 5247/2013, whether panchanama or mahazar drawn before quashing can be made use of for registering FIR in Crime No. 19/2013?

¶20

These two points can be answered together, but before that events that have given rise to the above points may be noted here.

¶21

While the petitioner was working as Joint Director of Fisheries (Marine), in the office of Directorate of Fisheries, Bengaluru, one Sankappa Shetty of Mangaluru instituted a complaint under section 200 Cr.P.C in the court of III Additional Sessions Judge and Special Court for Lokayukta, Mangaluru (‘trial court’ for short) making allegations that attracted penal action under sections 7, 8, 9 and 13 of the Prevention of

¶22

:: 4 ::

¶23

Corruption Act. The trial court referred the complaint to Lokayukta police for investigation in accordance with section 156(3) Cr.P.C, and consequently, the Deputy Superintendent of Police (Dy.SP), Lokayukta police, having registered FIR in Crime No. 15/2013 on 9.7.2013, visited the office of the petitioner on 30.7.2013 and the Corporation Bank, Jeevan Bheema Nagar Branch, Bengaluru on 31.7.2013, where the petitioner had a joint account with his wife and son, and conducted a mahazar. The Dy.SP also prepared a report on 5.8.2013 and submitted it to the Superintendent of Police, Lokayukta, Mangaluru Division. Based on this report, the Dy.SP registered FIR in Crime No. 19/2013 for the offence punishable under section 13(1)(e) read with section 13(2) of the Prevention of Corruption Act. In the meantime, the petitioner challenged FIR in Crime No. 15/2013 before this court in Criminal Petition No. 5247/2013 invoking

¶24

:: 5 ::

¶25

jurisdiction under section 482 Cr.P.C and the said petition stood allowed and FIR 15/2013 was quashed.

¶26

Investigation that followed registration of FIR in Crime No. 19/2013 resulted in charge sheeting the petitioner. The trial court registered the charge sheet in Spl. Case No.157/2015. The petitioner challenged the proceeding in Spl. Case No.157/2015 by filing Writ Petition 35787/2016, but he withdrew it, as he had also filed an application before the trial court seeking his discharge. On 5.10.2018, the trial court dismissed the application for discharge, and hence this revision petition by him under section 397 Cr.P.C.

¶27

The gist of the charge sheet filed against the petitioner for the offence under section 13(1)(e) read with section 13(2) of the Prevention of Corruption Act is that for the check period between 12.3.1982 and 5.8.2013, he amassed

¶28

:: 6 ::

¶29

assets worth Rs.89,19,632.67 and incurred expenditure of Rs.83,06,015/totaling Rs.1,72,25,647.67 (A) as against his known source of income of Rs.79,06,967.49 (B). The difference between A and B is Rs.93,18,680.18, i.e., the petitioner had spent and amassed wealth to the extent of 117.85% over and above his known source of income.

¶30

It has been held by the trial court for dismissing the application for discharge that the prosecution papers would prima facie indicate that based on source report submitted by Dy.SP, the Superintendent of Police gave permission to the former to register a case against the accused i.e., the petitioner and investigate. Thereafter the Dy.SP conducted investigation, search and seizure, and laid charge sheet on 7.12.2015. There are sufficient materials to frame charges against the petitioner. It is held further that offences

¶31

:: 7 ::

¶32

committed in respect of this case cannot be considered as offences committed in relation to transaction pertaining to FIR in Crime No. 15/2013. The trial court has held specifically that the offence pertaining to this case was committed much prior to the date on which FIR in Crime No. 15/2013 was registered and therefore there is no case for discharging the accused.

¶33

Assailing the order of the trial court, Sri P.P.Hegde argued that if the complaint of Sankappa Shetty which gave rise to FIR in Crime 15/2013 is seen, it can be noticed that in addition to making allegations regarding effecting transfers and deputations of the officers of his department arbitrarily for the purpose of accommodating his men of confidence in the prominent positions for easing the path for corruption, he has alleged that the petitioner has amassed huge wealth by corrupt means and possesses assets and property

¶34

:: 8 ::

¶35

disproportionate to the known source of income. That means, a complaint containing allegation of this nature was referred to police for investigation. FIR in Crime No. 15/2013 was registered in this background. The seizure mahazars dated 30.7.2013 drawn in the house and the office of the petitioner and the mahazar dated 31.7.2013 drawn in the bank in connection with seizing the locker indicate that they were drawn in connection with FIR in Crime No. 15/2013. Since the Dy. SP submitted a report thereafter to the Superintendent of Police on 5.8.2013 based on these mahazars, registration of another FIR in Crime No. 19/2013 was not permitted; it was nothing but second FIR. No distinct offence was detected conducting search. He referred to the judgment of the Supreme Court in T.T.Antony vs State of Kerala and Others [(2001) 6 SCC 181] and Amitbhai Anilchandra Shah vs CBI and Another [(2013) 6 SCC 348], and of the

¶36

:: 9 ::

¶37

coordinate Bench of this court in Usha R Patwari vs Karnataka Lokayukta [2016 SCC Online Kar 6899] and argued further that registration of FIR No.19/2013 was against the procedure established under law. He submitted that Article 21 of the Constitution of India has been violated.

¶38

Sri Venkatesh R Arabatti, learned standing counsel for the respondent, argued that FIR No. 19/2013 was not the second FIR for the same offences. No doubt the search mahazars were drawn in connection with FIR No. 15/2013, but that action was based on a complaint made by Sankappa Shetty. The complaint did not disclose the extent of disproportionate assets amassed by the petitioner; the allegations in the complaint would disclose altogether a different offence of demanding illegal gratification and adopting corrupt means for that purpose. The search revealed amassment of wealth by the petitioner

¶39

:: 10 ::

¶40

from unknown sources. Merely for the reason that Sankappa Shetty lodged complaint for the offence under section 13(1)(e) read with section 13(2) along with other offences, it does not mean that whenever a distinct offence came to light, another FIR cannot be registered. He argued that FIR in Crime No. 19/2013 was for a separate and distinct offence, and it was not a second FIR for the offences in connection with which FIR in Crime No. 15/2013 was registered. In the written synopsis filed by him, he has referred to the case of Awadesh Kumar Jha and Another vs State of Bihar [(2016) 3 SCC 8].

¶41

I have considered the rival contentions. It is not in dispute that FIR in Crime No. 19/2013 was registered after conducting search in the house and the office of the accused, and after seizing the bank locker. It is a settled principle of law that there can be only one FIR for one

¶42

:: 11 ::

¶43

transaction disclosing commission of one or more offences, and this is the principle found in T.T.Antony, Amitbhai Anilchandra Shah and

¶44

Usha R Patwari. But a decision has to be taken on facts to ascertain whether FIR in Crime No. 19/2013 was registered for a distinct offence or not. This is possible if complaint made by Sankappa Shetty is compared with source report prepared by the Dy. SP after conducting search.

¶45

The main allegations in the complaint are

¶46

that the petitioner while working as Joint Director

¶47

of Fisheries (Marine) prevailed upon the then Minister of Fisheries to entrust him with additional charge of Managing Director of KFDC, Mangaluru and having been appointed as Managing Director on 6.11.2012 transferred many honest officials of

¶48

KFDC and appointed in their places men of his choice to enable himself to adopt corrupt means. He has given details of officers transferred. It is

¶49

:: 12 ::

¶50

also alleged that during his tenure as MD between the period 6.11.2012 and 4.2.2013, he received gratification other than legal remuneration while exercising his official function. He changed the system of buying fish to his benefit and started collecting commission from fish vendors. During his administration, KFDC suffered financial crisis as a result of which dearness allowance could not be paid to the staff. There are also allegations that he proposed auction of all fish transport vehicles in order to hire private vehicles for transportation of the fish and he, along with General Manager, signed 195 blank cheques. And of course, there is also an allegation in para 4(xiii) that the petitioner has amassed huge wealth by corrupt means.

¶51

The source report dated 5.8.2013 was preceded by mahazars dated 30.7.2013 consequent to search conducted in the house and

¶52

:: 13 ::

¶53

the office of the petitioner, and another mahazar dated 31.7.2013 drawn after seizing the bank locker. Thereafter FIR in Crime No. 19/2013 was registered. In the source report, it is stated that the petitioner was found to have incurred expenditure and acquired wealth to the extent of 71.15% over and above his known source of income. Further investigation indicated that the percentage of disproportionate assets and expenditure of the entire family was 117.85%. Charge sheet was ultimately filed.

¶54

Now if two are compared, it is possible to opine that although search and seizure was effected having the earlier FIR as the base, the search disclosed altogether a distinct offence. If the complaint of Sankappa Shetty contains allegations of corruption after the petitioner became the Managing Director of KFDC, FIR 19/2013 pertains to the period 12.3.1982 to

¶55

:: 14 ::

¶56

5.8.2013. 12.3.1982 was the date when the

¶57

petitioner joined the service of Government of Karnataka in the Department of Fisheries. FIR 19/2013 is confined to acquisition of wealth and assets for a longer period, and thus seen commission of a distinct offence is brought forth. At times, investigation of one case discloses commission of offences in the past not detected till then and in that event, a separate FIR is to be registered. Sri P.P.Hegde has referred to an order passed by me in the case of Virendra Khanna vs State of Karnataka and Others [2022 SCC Online KAR 169] in support of his argument. But this order does not help him, for what has been held is : -

¶58

“9. …. Whatever the police detected in the course of further investigation was altogether a different incident of crime in respect of which a separate FIR was necessary. Thus viewed, as rightly argued by Sri. Hashmath Pasha, arraying

¶59

:: 15 ::

¶60

the petitioner as accused no.5 in FIR No.588/2018 and subjecting him to prosecution in Spl.C.C.No.529/19 does not appear to be in accordance with procedure established by law”.

¶61

Very pertinently, judgment of the Supreme Court in Awadesh Kumar may be

¶62

referred to here. It is held : -

¶63

“22. The second FIR was registered against the appellants on a written complaint of Arvind Kumar Singh, Inspector of Police at Kishanganj police station. It was found by the investigating officer during the course of investigation in the first FIR that real name of the appellant no.1 was Awadesh Kumar Jha s/o Late Kaladhar Jha r/o Gram Akbarpur, District Purnea and was found to be working as Development Officer at New India Assurance Company Ltd. Branch Purnia; contrary to the same the personal information was furnished by him at the time of investigation of the

¶64

:: 16 ::

¶65

case on the first FIR. Similarly, with regard to the appellant no.2 his father’s name was found to be Late Ramendra Prasad and not Late Ramanand. His actual address was found to be Ranipatti P.S. Kumarkhand, District Madhepura and he was found to be working as surveyor and investigator of all branches of General Assurance Company. It is also alleged in the second FIR that both the appellants had not disclosed their correct names, father’s name, their address and occupation in the bail applications filed by them in respect of the case arising out of first FIR before the Additional Sessions Judge.

¶66

23. From a bare perusal of second FIR, it is abundantly clear that both the appellants have furnished wrong information to the police as to their names, father’s name and address during the course of investigation made on the first FIR. This Court is of the view that the offences alleged to have committed by them are mentioned in second FIR, which offences are distinct offences

¶67

:: 17 ::

¶68

committed by both the appellants and the same have no connection with the offences for which the first FIR was registered against them. Therefore, for the reason stated supra, the contention urged by the learned counsel on behalf of both the appellants that instead of institution of second FIR for the said offences, a further investigation as provided under sub-Section (8) to Section 173 of Cr.P.C. should have been done by the investigating officer on the ground of they being the part of same transaction with offences registered under first FIR is wholly untenable in law and liable to be rejected.

¶69

xxxxxxxx

¶70

26. However, this principle of law is not applicable to the fact situation in the instant case as the substance of the allegations in the said two FIRs is different. The first FIR deals with offences punishable under Sections 3,4,5,6 and 7 of the Act, whereas, the second FIR deals with the offences punishable under Sections 419 and 420 of IPC which are alleged to have

¶71

:: 18 ::

¶72

committed during the course of investigation of the case in the first FIR. This Court is of the view that the alleged offences under the second FIR in substance are distinct from the offences under the first FIR and they cannot, in any case, said to be in the form of the part of same transaction with the alleged offences under the first FIR. Therefore, no question of further investigation could be made by the investigating agency on the alleged offences arisen as the term “further investigation” occurred under sub-Section (8) to Section 173 of Cr.P.C. connotes the investigation of the case in continuation of the earlier investigation with respect to which the charge sheet has already been filed. The reliance is placed on the judgment of this Court in Rama Chaudhary v. State of Bihar, the relevant para 17 reads thus:

¶73

“17. From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of the

¶74

:: 19 ::

¶75

police report under sub-section (2) on completion of the investigation, the police has a right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “reinvestigation”. The meaning of “further” is additional, more, or supplemental. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether.”

¶76

Therefore, I find no force in the argument of Sri P.P.Hegde that FIR 19/2013 is the second FIR in relation to offences concerning which already FIR 15/2013 had been registered.

¶77

On the second point, Sri P.P.Hegde argued that this court in Criminal Petition No. 5247/2013, quashed the proceedings emanating from private complaint i.e., P.C.5/2013 and

¶78

:: 20 ::

¶79

consequently, the materials collected during

¶80

investigation under section 156(3) Cr.P.C after registering FIR 13/2013 stood wiped out automatically. Those materials rendered themselves illegal and based on such materials, FIR No.19/2013 could not have been registered. In this context also, Sri P.P.Hegde complained of violation of Article 21 of the Constitution of India. But Sri Venkatesh Arabatti submitted that P.C.5/2013 was quashed for want of prior sanction; the materials collected during investigation do not get wiped out and there is no bar for making use of the materials collected during investigation to register an FIR for a distinct offence. In this regard, he has referred to the judgments of the Supreme Court in H.N.Rishbud vs State of Delhi [AIR 1955 SC 196] and Pooran Mal vs Director of Inspection (Investigation) of Income Tax, New Delhi and

¶81

Others [AIR 1974 SC 348]; and a coordinate

¶82

:: 21 ::

¶83

Bench of this court in Y.Gangi Reddy vs State by Karnataka Lokayukta [Crl.P.No.3518/2013].

¶84

To answer this point, firstly the order in Crl.P.No.5247/2013 is to be seen. Perusal of the same shows that the proceedings in P.C.5/2013 were quashed as the complainant Sankappa Shetty had not obtained sanction before instituting the complaint. In this view, the mahazars drawn by the investigating officer, of course, get wiped out completely so far as proceedings therein are concerned, but if those materials disclose a distinct and separate offence, they can certainly be made use of. Whatever may be the source of disclosure of commission of a cognizable offence, whether legal or illegal, action must be initiated. Analogy to this effect can be drawn from the judgment of the Supreme Court in the case of H.N.Rishbud (supra) . In the said case, although the question involved was with regard to validity

¶85

:: 22 ::

¶86

of trial based on invalid investigation, the principle enunciated there helps to meet a situation that has arisen in the present case. In para 9 of

¶87

H.N.Rishbud, it is held :

¶88

“9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however

¶89

:: 23 ::

¶90

serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings”. The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e. sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But section 190 does not. While no doubt, in one sense, clauses (a), (b) and (c) of section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that

¶91

:: 24 ::

¶92

cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or (b) of section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation section 537 of the Code of Criminal Procedure which is in the following terms is attracted:

¶93

"Subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code,

¶94

:: 25 ::

¶95

unless such error, omission or irregularity, has in fact occasioned a failure of justice".

¶96

If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu v. Emperor and Lumbhardar Zutshi v. The King. These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show

¶97

:: 26 ::

¶98

that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.”

¶99

Then, in Gangi Reddy vs State by

¶100

Karnataka Lokayukta, the coordinate bench of

¶101

this court had to answer a question whether materials collected during investigation by an Inspector of Police who had no authority can be made use of in a subsequent proceeding. It is held that,

¶102

“9. The respondent police have not only relied on the documents seized during the search in Crime No. 7/2009 and also collected further documentary evidence and recorded the statements

¶103

:: 27 ::

¶104

of number of witnesses. The prosecution is relying on the documents seized during the course of first investigation and also the evidence collected during the course of investigation in the second FIR. There is no legal impediment for the prosecution to rely on the documentary evidence seized by them during the course of first investigation. Therefore the proceedings cannot be quashed on the ground that some of the documents are seized during the course earlier investigation by an officer without authority.”

¶105

Therefore, with the help of above decisions, here too, it can be said that despite proceedings in P.C.5/2013 being quashed, the materials collected during investigation since disclose altogether a distinct offence, there was no illegality in registering a separate FIR based on those materials. Article 21 of the Constitution does not emerge for consideration in the present case. It may be stated a crime unearthed at any

¶106

:: 28 ::

¶107

time in any manner requires investigation subject to any other limitation or prohibition either in the Code of Criminal Procedure or any other law.

¶108

Incidentally, Sri P.P.Hegde argued that

¶109

even for initiation of second FIR, there was no prior sanction. This argument does not stand, for it was Lokayukta police which initiated action; sanction has to be obtained to enable the court to take cognizance of an offence. The stage of taking cognizance arises after charge sheet is filed. That means, by the time charge sheet is filed, sanction must have been obtained based on materials collected during investigation. The trial court has already taken cognizance. Moreover discharge was not sought on this ground.

¶110

In view of foregoing reasons, the revision petition stands dismissed. No costs.

¶111

:: 29 ::

¶112

I will be failing in my duty if I do not place on record the effective assistance rendered by Sri P.P.Hegde, learned senior counsel for the petitioner and Sri Venkatesh Arabatti, learned standing counsel for the respondent.

¶113

Sd/JUDGE

¶114

ckl/-

Sri Gangadhara v. Maddikeri v State of Karnataka through the Karnataka

Case brief

What is this about?

What did the court decide?

Sri Gangadhara v. Maddikeri v State of Karnataka through the Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sunny Slim @ Sunny Vs the State

Kanthamma Vs Sri. Gangadhar

The Karnataka Slum Development Board Vs Dr. S Shobha

Sri R Devaraju Vs Sri H Muninarayana

K.M. Krishna Vs Smt. G. Gayathri Devi

Smt Gayathri Devi Vs Sri K M Krishna