Allowed

J Gnanendra Kumar v. the Chief Secretary

Karnataka HC20 Jul 2022WP/8170/2022

Case brief

AI extract

What is this about?

Held that the FIR for disproportionate assets was quashed as there was no material proving the petitioner held assets disproportionate to known sources. The court held that registration was impermissible due to errors in calculating the asset ratio.

What did the court decide?

The impugned FIR Cr.No.23/2022 registered by respondent No.2-ACB Police is quashed; liberty reserved to respondent to proceed if further material surfaces.

J Gnanendra Kumar Vs the Chief Secretary — Corruption | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20TH DAY OF JULY, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR WRIT PETITION NO.8170/2022 (GM-RES)

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BETWEEN:

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J GNANENDRA KUMAR S/O JAVARAJE GOWDA AGED ABOUT 54 YEARS ADDITIONAL COMMISSIONER KARNATAKA ROAD SAFETY AUTHORITY R/O HOUSE NO.360, 1ST BLOCK BASAVESHWARANAGAR BENGALURU - 560079

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...PETITIONER

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(BY SRI M.S. BHAGWAT, SENIOR COUNSEL FOR SRI SADASHIVA D., ADVOCATE)

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AND:

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THE CHIEF SECRETARY GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BENGALURU - 560 001.

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THE SUPERINTENDENT OF POLICE ANTI CORRUPTION BUREAU BENGALURU CITY, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR BENGALURU-560 001.

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...RESPONDENTS

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(BY SRI ROHITH B.J., HCGP FOR R-1; SRI P.N. MANMOHAN, ADVOCATE FOR R-2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE FIR ANNEXURE-A ALONG WITH SOURCE REPORT DATED 15.03.2022 SUBMITTED BY SRI MANJUNATH M, INSPECTOR OF POLICE, ACB, BENGALURU CITY, AND THE ORDER DATED 15.03.2022 OF THE SUPERINTENDENT OF POLICE, ACB, BANGALORE CITY DIVISION POLICE, BENGALURU AUTHORIZING THE DEPUTY SUPERINTENDENT OF POLICE, ACB, BENGALURU CITY TO REGISTER THE FIR AND TAKE NECESSARY ACTION ON THE SOURCE REPORT INCLUDING ALL FURTHER PROCEEDINGS PURSUANT THERETO

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THIS WRIT PETITION COMING ON FOR FURTHER DICTATION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This writ petition is filed to quash the FIR Annexure-A along with source report dated 15.3.2022 submitted by Sri Manjunath M., Inspect of Police, ACB, Bengaluru City, and the order dated 15.3.2022 passed by the Superintendent of Police, ACB, Bangalore City Division Police, Bengaluru authorizing the Deputy Superintendent of Police, ACB, Bengaluru City to register the FIR and take necessary action on the source report including all further proceedings pursuant thereto.

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On 15.03.2022, the Inspector of Police, Anti Corruption Bureau (ACB), Bengaluru City submitted a Source Report stating that the petitioner is in possession of the movable

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and immovable properties disproportionate to the known source of income to an extent of 89.60% from the period 1998 to March 2022.

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The Superintendent of Police, ACB by order dated 15.03.2022, after considering the Source Report, authorized the Deputy Superintendent of Police, ACB to register the FIR against the petitioner for the offence punishable under Section 13(1)(b) read with Section 13(2) of the Prevention of Corruption Act, 1988 and to conduct investigation. Taking exception to the registration of FIR, the petitioner/accused is before this Court.

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Sri.M.S.Bhagavath, learned Senior Counsel appearing for the petitioner would make the following submission:

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a) The FIR is registered against the petitioner without holding a preliminary enquiry as mandated by the Hon’ble Supreme Court in the case of Lalita Kumari vs. Government of Uttar Pradesh and Others reported in (2014) 2 SCC 1 .

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b) The discreet enquiry alleged to have been conducted is without taking in to account the immovable properties at item Nos.4 and 5 in the Source Report which were already sold before registration of the FIR and also not taken in to account the rental income of the wife of the petitioner/accused and also the contribution made by the

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Petitioner towards Provident fund. Further, the net salary of the petitioner is taken as Rs.82,32,123/- as against Rs.1.00 crore.

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Sri.P.N.Manmohan, learned counsel appearing for

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respondent-ACB would make the following submission:

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a) The Source Report was prepared after conducting a discreet enquiry and conducting of a preliminary enquiry depends on the facts and circumstances of the case as held by the Hon’ble Supreme Court in the case of Central Bureau of Investigation(CBI) and Any. vs. Thommandru Hannah Vijayalakshmi alias T.H.Vijayalakshmi and Anr. reported in AIR 2021 SC 5041. Hence, he submits that the credible information which was received disclosed the commission of a cognizable offence which did not warrant conducting of a preliminary enquiry.

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He further submits that during the course of investigation, it was found that the petitioner was holding properties which were not part of Source Report and if that is taken in to account, the properties possessed by the petitioner/accused is disproportionate to the known source of income.

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He further submits that at the time of registration of the FIR, the Source Report need not contain all the details of the properties which was held by the petitioner/accused since the respondent will not be in a position to collect all the information with regard to the possession of the said properties by the petitioner/accused during discreet enquiry.

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I have considered the submissions made by the learned counsel appearing for the parties.

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A perusal of the Source Report indicates that the petitioner is alleged to be in possession of the properties disproportionate to the known source of income to an extent of 89.60% from the period 1998 to March 2022. Perusal of the statement furnished along with the memo filed by the petitioner indicates that the immovable properties at Sl.Nos.4 and 5 in the source report alleged to have been held by the wife was sold on 07.11.2019 and 26.06.2019, for a total sum of Rs.33,98,000/-. The statement further indicates that net salary of the petitioner is Rs.1.00 crore as against Rs.82,32,123/- and the rental income received by the wife of the petitioner is Rs.2,42,00,000/- which is evident from the income tax returns. However, in the Source Report it is shown as Rs.19,50,000/-. The statement further

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indicates that the petitioner has contributed a sum of Rs.70,43,660/- towards Provident fund and it is certified by the Accountant General and the said contribution is also not taken into account in the Source Report. The statement furnishing the said information is not disputed by the respondent-ACB.

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The Hon’ble Supreme Court in the case of Central Bureau of Investigation and another supra at para 33 has held that:

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“ Conducting preliminary enquiry would not take away from the ultimate goal of prosecuting accused persons in a timely manner. However, if the CBI chooses not to hold a preliminary enquiry, the accused cannot demand it as a matter of right. ”

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The Hon’ble Supreme Court in the case of State of Telangana Supra has held that the preliminary enquiry warranted in Lalitha Kumari is not required to be mandatorily conducted in all corruption cases and preliminary enquiry to be conducted depends on the facts and circumstances of each case and there are no fixed parameters on which such enquiry can be said to be conducted. In the present case, respondent - ACB has stated that after conducting discreet enquiry source report has been prepared by the officer concerned. However, certain immovable

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properties sold prior to preparation of the report and also rental income of the wife of the petitioner and also the contribution made by petitioner towards provident fund is not taken into account in the source report, and if the same are deducted, inevitably the assets possessed by the Petitioner is -9.3% of the known source of income. Hence, the contention of the Petitioner, whether the conducting of preliminary enquiry was mandatory or not before registration of the FIR in the present case need not be gone into .

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Hence, in the absence of any material that the petitioner was possessing assets disproportionate to the known source of income, the registration of the FIR is impermissible.

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In view of the proceedings, I am of the considered view that continuation of investigation against the petitioneraccused will be an abuse of process of law. Accordingly, I pass the following:

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ORDER

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i) Writ petition is allowed.

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ii) The impugned FIR in Cr.No.23/2022 registered by respondent No.2-ACB Police, Bengaluru city is hereby quashed.

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iii) It is needless to say that liberty is reserved with respondent No.2-ACB to proceed against the petitioner in accordance with law, if so advised.

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Sd/-

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