Remanded

State of Karnataka v. Murali Bolar

Karnataka HC1 Dec 2023CRL.RP/925/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka set aside a discharge order granted to a public audit officer based on parity with other accused who were discharged due to a defective sanction order. Since the present accused had a separate valid sanction, the court remanded the matter to the lower court to reconsider whether sufficient grounds existed to proceed under Sections 227 and 227/239 Cr.P.C.

What did the court decide?

The impugned order dated 17.12.2015 granting discharge was set aside. The matter was remanded to the IV Addl. District & Sessions Judge, Mangaluru, to reconsider the revision petition afresh.

State of Karnataka Vs Murali Bolar — Criminal Trial and Appeal | Karnataka HC (2023)

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NC: 2023:KHC:43489 CRL.RP No. 925 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE VENKATESH NAIK T CRIMINAL REVISION PETITION NO.925 OF 2016

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BETWEEN:

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STATE OF KARNATAKA REPRESENTED BY THE PUBLIC PROSECUTOR MANGALURU-575 001.

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…PETITIONER

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(BY SRI VINAY MAHADEVAIAH, H.C.G.P.)

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AND:

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MURALI BOLAR S/O. B. GOPAL AGED ABOUT 55 YEARS AUDITOR, MANGALURU CITY CORPORATION MANGALURU-575 001.

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…RESPONDENT

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(BY SRI B. L. ACHARYA, SENIOR COUNSEL)

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Digitally signed by VINUTHA M Location: HIGH COURT OF KARNATAKA

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 17.12.2015 PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU IN CRL.R.P.NO.189/2011 AND CONFIRM THE ORDER DATED 15.11.2011 PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE AND C.J.M., MANGALURU IN C.C.NO.177/2006 AND DISMISS THE APPLICATION OF ACCUSED NO.3 SEEKING DISCHARGE FROM THE CASE.

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THIS CRIMINAL REVISION PETITION IS COMING ON FOR

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HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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NC: 2023:KHC:43489 CRL.RP No. 925 of 2016

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O R D E R

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Heard learned HCGP for the petitioner-State and learned Senior counsel Sri. B.L. Acharya, for the respondent/accused No.3.

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The petitioner has filed this revision petition under Section 397 and 401 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') to set aside the order dated 17.12.2015 passed in Crl.RP.No.189/2011 by IV Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru.

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For the sake of convenience, the parties are referred as per their rankings before the trial Court. The revision petitioner is the 'complainant- State' and the respondent is 'accused No.3'.

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The brief facts of the prosecution case are as under:-

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The COD police, Bengaluru filed a charge sheet against accused No.3 and others for the offences

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NC: 2023:KHC:43489 CRL.RP No. 925 of 2016

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punishable under sections 409, 468, 477(A), 420 r/w 120 IPC, on the allegation that the accused were working in the Audit section of RTO office, Mangaluru at the relevant point of time i.e., for the period from 1990 to 1999 and during that period, accused No.3 and other accused persons conspired together and caused loss to the Government to the tune of Rs.58,69,767/- and failed to discharge their duties properly. Hence, it led to registration of FIR and investigation. The Investigating Officer filed charge sheet against accused No.3 and others for the aforesaid offences.

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Later, the IO secured sanction from the

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Government against accused No.3 on 19.01.2004. During the pendency of the case, accused No.3 filed an application under section 239 Cr.P.C, seeking for his discharge for the offences alleged. The Trial court rejected the same. Hence, accused No.3 filed Crl.RP.No.189/2011 before the learned IV Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru and the revisional court

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NC: 2023:KHC:43489 CRL.RP No. 925 of 2016

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set-aside the order dated 06.11.2015 passed by the trial court in C.C.No.177/2006 and thereby accused No.3 was discharged of the alleged offences.

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Aggrieved by the said order, the complainant State has preferred this petition contending that the order

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passed by the revisional court is not in accordance with law; the trial court has not applied its mind to the provisions of sections 227 and 239 Cr.P.C. There is sufficient ground for proceeding against accused No.3 and others to frame charge in order to adequately punish him. Further, accused No.3 and others conspired together and caused loss to the Government to the tune of Rs.58,69,767/- and thereby accused No.3 and other accused failed to discharge their duty properly.

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It is further contended that merely because accused Nos.2 and 4 were discharged on the ground of defective sanction accorded by the Government, now accused No.3 on the ground of parity is not entitled for discharge. It is contended that the trial court has not at all

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NC: 2023:KHC:43489 CRL.RP No. 925 of 2016

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considered the contents of the charge sheet while passing the impugned order. Hence, prayed to allow the petition.

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Learned Senior counsel Sri. B.L. Acharya, appearing for the respondent-accused vehemently argued and contended that accused No.2 was the Treasury officer and accused No.3 was the Accounts Officer and as per the contents of the charge sheet, though it was considered to be dereliction of duty, but dereliction does not amount to criminality. The revisional court considering the defective sanction order granted against accused Nos.2 and 4 has rightly allowed the petition of accused No.3 on the ground of parity. Hence, learned Senior counsel prayed to reject the petition.

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Perused the material available on record. Initially,

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the case has been registered against accused Nos.1 to 4 for the offence punishable under sections 409, 468, 477(A), 420 r/w 120 IPC on the allegation that the present petitioner and other accused persons were working in the Audit office at the relevant point of time i.e., during 1990

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NC: 2023:KHC:43489 CRL.RP No. 925 of 2016

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to 1999 and they conspired together and caused loss to the State exchequer i.e., Government to the tune of

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Rs.58,69,767/-. On perusal of the order passed by the Revisional Court, the Revisional court at para 10 observed as under:-

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10. Considering the arguments of revision petitioner and learned Public Prosecutor for the respondent and the material on record, it can be noticed that the Hon'ble High Court of Karnataka in W.P.No.17598/2006(GM-RES) the sanction dated 14-9-2006 in so far as the accused no.4 has been set aside and subsequently the said accused along with accused nos 2 and 3 had filed discharge application and the said application was allowed in so far as accused nos. 2 and 4 is concerned. Even though there was separate sanction order dated 19-1-2004 to prosecute the revision petitioner who has been arrayed as accused no.3, but the investigation for prosecuting all of them are one and the same and therefore, the revision petitioner is also standing on the same footing as that of the other accused. Therefore, the order of court below in not considering the fact that the investigation pertaining to all the accused being one and the same and discharging only the accused nos 2 and 4 and dismissing the same against accused no.3 is erroneous and needs interference from this court. Accordingly, I answer the above point in the Affirmative."

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NC: 2023:KHC:43489 CRL.RP No. 925 of 2016

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On perusal of the impugned order, the revisional court i.e., IV Addl. District & Sessions Judge, Dakshina Kannada, Mangaluru has not assigned any reasons so as to discharge accused No.3 as required under section 227 and 239 Cr.P.C, but the revisional court only the ground of parity, allowed the application of accused No.3 and discharged him. Infact, in W.P.No.17598/2006, the Coordinate Bench of this Court allowed the petition on the ground that the sanction order dated 14.09.2006 passed against accused Nos.2 and 4 was defective one, accordingly, the application for discharge was allowed in respect of accused Nos.2 and 4.

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In the instant case, the accused No.3 has not challenged the sanctioned order dated 19.01.2004. Further, while discharging accused No.3, the first appellate court has not gone into the requirement of sections 239 or 227 Cr.P.C.

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Therefore, it is just and necessary to analyse section 227 of Cr.P.C.:-

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8 - NC: 2023:KHC:43489 CRL.RP No. 925 of 2016

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227. "Discharge- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

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On perusal of the above proposition of law, it clearly establishes that upon consideration of the contents of the charge sheet under section 173 Cr.P.C., the court has to form an opinion to discharge if there is no sufficient material or if there is sufficient material in the contents of the charge sheet, the court has to frame charge, but this aspect of the matter has not been considered by the revisional court. Hence, it is just and necessary to remand the matter to the revisional court to consider the requirement of sections 227 and 239 Cr.P.C., to meet the ends of justice. Hence, the following:-

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ORDER

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The petition is allowed. The order dated

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17.12.2015 passed in Crl.R.P.No.189/2011 by

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9 - NC: 2023:KHC:43489 CRL.RP No. 925 of 2016

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learned IV Addl. District & Sessions Judge, Dakshina Kannada, Mangaluru is set-aside. Matter is remanded back to IV Addl. District & Sessions Judge, Dakshina Kannada, Mangaluru to consider the revision petition filed by accused No.3 under sections 397 and 399 Cr.P.C. afresh by giving opportunity to both the parties and pass appropriate orders in accordance with law.

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All contentions are left upon to be urged by the parties.

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Registry is directed to send copy of this order along with the trial court records to IV Addl. District & Sessions Judge, Dakshina Kannada, Mangaluru, forthwith.

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Sd/JUDGE

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List No.: 1 Sl No.: 17

State of Karnataka v. Murali Bolar

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Murali Bolar

Case brief

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What did the court decide?

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