Basavaraj R Uppar Vs the Lokayukta

BASAVARAJ R UPPAR S/O LATE RAMANINGAPPA AGED ABOUT 50 YEARS, OCC HEAD WARDER, CENTRAL PRISON PARAPPANA AGRAHARA, R/AT NO.160, C BLOCK, JAIL QUARTERS, PARAPPANA AGRAHARA BENGALURU-560100

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…PETITIONER

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(BY SRI. MONESH KUMAR K B, ADVOCATE)

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AND:

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Digitally signed by REKHA R Location: High Court of Karnataka

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THE LOKAYUKTA,

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(EARLIER ACB NOW LOKAYUKTA) M.S.BUILDING, DR.AMBEDKAR VEEDHI, BENGALURU - 560001 (REPRESENTED BY ITS REGISTRAR)

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SMT.SANGEETHA.N W/O NAGENDRA, AGED ABOUT 22 YEARS, JADE MAYASANDRA, TURUVEKERE TALUK, TUMAKUR - 572227

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…RESPONDENTS

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(BY SRI.B.B.PATIL, ADVOCATE FOR R1;

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HC-KAR

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V/O DTD: 16.11.2023 NOTICE TO R2 IS D/W)

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THIS CRL.P IS FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO QUASH THE COMPLAINT, FIR NO.38/2020 ACB, BANGALORE AND CHARGE SHEET IN SPL.C.C.NO.2293/2021 FOR THE OFFENCE P/U/S 201,204 OF IPC AND ORDER TAKING COGNIZANCE AND ALL FURTHER PROCEEDINGS PURSUANT THERETO, PENDING ON THE FILE OF THE XXIII ADDL. CITY CIVIL AND SESSIONS JUDGE, SPECIAL JUDGE, BANGALORE.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MS. JUSTICE J.M.KHAZI

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ORAL ORDER

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This petition is filed by petitioner/accused No.3 under

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Section 482 of Code of Criminal Procedure, seeking quashing of criminal proceedings in Spl.C.C.No.2293/2021 on the file of XXIII Addl.City Civil and Sessions Judge (Special Judge), Bengaluru, for the offences punishable under Sections 201 and 204 of IPC (arising out of Cr.No.38/020 of ACB Police, Bengaluru.

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For the sake of convenience, parties are referred to by their ranks before the trial Court.

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HC-KAR

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In support of the petition, accused No.3 has contended that the investigation, the collection of material, sanction order, laying of the charge sheet and order taking cognizance, issue of summons against him are opposed to facts and circumstances of the case and amount to abuse of the process of the Court. Reading of the complaint clearly indicates that no allegations are made against him regarding handing over phone number 6305854970. In fact, the cell phone belongs to the Nagendra - husband of complainant, who is a life convict. The allegations that accused No.3 used to permit the inmates of the jail to use the cell phones by charging Rs.300 per hour and that after the conversation is made, he used to delete the conversation and refurbish the phone is introduced by way of further statement of CW-3 Nagendra the husband of complainant.

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3.1 Even according to the charge sheet, several other convicts have given such statements against accused No.3, the statements of CW-32 Smt.Habibunnisa and CW-33

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HC-KAR

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Sirajuddin Ahmed only reveal that they have used cell phone number 6305854970, but not at the instance of accused No.3. Therefore, investigating officer has got recorded the statement of CW-33 Sirajuddin Ahmed before the Judicial Magistrate under Section 164 Cr.P.C. The statement made does not pertain to the commission of offences in Spl.C.C.No.2293/2021 and therefore, these statements cannot lead to the involvement of accused No.3. Continuation of criminal proceedings against the petitioner would amount to abuse of the process of the Court. Since accused No.3 was not having any knowledge about the demand of bribe made by accused Nos.1 and 2, he cannot be convicted for the offences punishable under Sections 201 and 204 IPC and hence the petition.

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On the other hand, learned Special Public Prosecutor representing respondent No.1 State by Lokayukta Police would submit that at the relevant point of time respectively, accused Nos.1 to 3 were working as Assistant Jail Superintendent, Warder and Head Warder at

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Central Prison, Parappana Agrahara, Bengaluru. CW-3 K. Nagendra was a life convict in No.10819 and was undergoing the sentence at Parappana Agrahara. His wife, Smt. Sangeeta S, gave a complaint dated 01.10.2020 with Dy.Superintendent of Police, Anti-Corruption Bureau, Bangalore city, alleging that she is a resident of Tumakuru City, her native is Kuppagadde, Soraba Taluk, Shivamogga District. During 2015, she fell in love with CW3 Nagendra of Jademayasandra. After the marriage, they stayed together in a rented house in Tiptur. However, her husband was convicted on 05.11.2018, in a murder case and sentenced to undergo life imprisonment.

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4.1 After conviction, he was shifted from Tiptur jail to central prison, Parappana Agrahara, Bengaluru. Occasionally, she used to visit him by taking permission from the Jail authorities. However, after COVID-19, she was not able to meet him. CW-3 Nagendra used to call her from his phone No.6305854970 to her cell No.9972572093.

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4.2 In this background on 28.09.2010, CW-3 Nagendra

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called her from his cell number and informed that in order to submit his application and recommend to avail Parole, accused No.1 is demanding Rs.10,000/- and out of it, he should be given Rs.5,000/- in advance and that he has recorded the said conversation on his cell number and since he is not willing to pay the bribe, he requested the complainant to file a complaint with ACB. After collecting Rs.5,000/- she lodged the complaint. Along with the complaint, she has produced a CD containing the record of conversation between accused No.1 Jayaram and her husband Nagendra. Based on the same and having convinced about the allegations made against accused No.1, the concerned police have registered case in Cr.No.38/2020 and laid a trap, after conducting detailed pre trap Mahazar.

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4.3 It is submitted by the learned Special Public

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Prosecutor that even though the complaint was filed as against accused No.1 only, during the trap, it is revealed

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HC-KAR

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that on coming to know from CW-3 Nagendra that his wife

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has brought the bribe amount and waiting near a bakery outside Central jail, he i.e., accused No.1 requested accused No.2 Bandeppa S. Badiger, who was a warder to go near the bakery and get the money. However, accused No.2 demanded CW-3 Nagendra that in order to go out and bring the money from his wife, he should be given Rs.1,000/- accordingly CW-3 Nagendra gave Rs.1,000/-, which was available with him to accused No.2. Accordingly, accused No.2 went out of the jail premises, near the bakery and collected Rs.5,000/- tainted notes from her. He handed over the same to CW-4, Shashank Shekhar Kanungo, who is also a convict undergoing sentence in the same jail. In turn CW-4 Shashank Shekar Kanungo handed over the tainted notes to CW-3 Nagendra and in turn he handed over the same to accused No.1.

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4.4. Learned Special Public Prosecutor representing respondent No.1/Lokayukta would further submit that the hand wash of both hands of accused No.1, the wash of the

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spot inside the drawer of accused No.1 table, hand wash of

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both hands of CW-3 Nagendra, pant pocket wash of accused No.2, hand wash of CW-4 Shashank gave positive result for presence of Phenolphthalein. The tainted notes were also recovered from the table drawer of accused No.1 on his pointing out the same, recovery of Rs.1,000/- from the possession of accused No.2, recovery of cell phone of accused Nos.1 and 2, cell phones of CW-3 Nagendra, recovery of cell phone and motorbike of accused No.2, voice sample of accused No.1 and CW3 Nagendra, corroborate with the case of the prosecution.

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4.5 Learned Special Public Prosecutor representing respondent No.1/Lokayukta would further submit that so far as accused No.3 is concerned, during investigation, it was revealed that he used to allow the convict to use their cell phones by charging Rs.300/- per hour and after they would use the phone, he would delete the conversation so made and refurbish the phones so that the data should not be collected. Investigation establish this fact and in the

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light of the same, there is prime facie material to proceed against him and pray to dismiss the petitions filed by accused No.2 and 3.

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4.6 Learned Special Public Prosecutor representing respondent No.1/Lokayukta police would further submit that the concerned police have not independently conducted investigation so far as Sections 203 and 204 IPC concerned. On the other hand while conducting investigation on the allegations of offences under Prevention of Corruption Act, it came to light that accused No.3 has destroyed the evidence and therefore he is being

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charged for the offences punishable under Sections 203 and 204 IPC and therefore charge sheet against accused No.3 is perfectly maintainable and pray to dismiss the petition.

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Heard arguments of learned counsel for the accused No.3 and Learned Special Public Prosecutor

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HC-KAR

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representing respondent No.1/Lokayukta and perused the record.

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It is not in dispute that at the relevant point of time accused No.1 S.H.Jayaramaiah was working as Additional Superintendent, accused No.2 Bandeppa S Badiger, was working as Warder and accused No.3 Basavaraj Uppar was working as Head Warder at Central Jail, Parappana Agrahara, Bengaluru. It is also not in dispute that at the relevant point of time CWs-18 to 29, where also working at Central prison, Parappana Agrahara, Bengaluru. CWs-18 to 29 are also staff of central prison, Parappana Agrahara, Bengaluru.

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CW-3 Naagendra is a life convict jailed in Central Prison, Parappana Agrahara, Bengaluru. Complainant Sangeeta is his wife. She used to meet CW-3 Nagendra by visiting the jail. It appears due to COVID-2019, there were more restrictions for the relatives to meet the inmates of the Jail, including the convicts. The investigation and the

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consequent charge sheet reveal that CW-3 decided to apply for parole. In order to submit his application with his recommendations, accused No.1 demanded CW-3 Nagendra to pay him Rs.10,000/-. Out of it Rs.5000/- to be paid in advance and the remaining Rs.5000/- to be paid after the work is done. CW-3 Nagendra has recorded his conversation with the accused No.1 and sent it to his wife, CW-1 Sangeeta. Since they were not willing to pay the bribe, they decided to file complaint. In the light of conversation between accused No.1 and CW-3 Nagendra after being convinced about the allegations made in the complaint, the investigating officer has registered the case.

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A pre-trap mahazar is drawn in the presence of CW-2 V.Ekambaram. When informed her husband CW-3 Nagendra that she has brought the bribe amount, she was directed to wait near a bakery situated near the Central Jail. On getting a call from complainant that she is waiting near the bakery, CW-3 Nagendra requested accused No.2 to go and get the money. In order to collect the bribe

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amount from complainant and hand it over to CW-3 Nagendra, accused No.2 demanded Rs.1,000/and collected the same from CW-3 Nagendra. Accordingly, accused No.2 Bandeppa Badigere went out of the jail and collected the tainted notes of Rs.5,000/-. He entered the jail and handed it over to CW-4 Shashank Shekhar Kanungo, who is also a convict, with a direction to hand it over to CW-3 Nagendra. In turn, CW-3 Nagendra handed over the tainted notes to accused No.1, when he returned to the jail at 4.30 p.m after his lunch break and he received it with his right hand, counted it and kept it in drawer of his table. After handing over the tainted notes to accused No.1, CW-3 Nagendra called his wife- omplainant Sangeeta and informed her.

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After getting the said information, the investigating officer along with the witness and other staff entered the jail. The hand wash of accused No.1 S.H.Jayaramaiah, CW-3 Nagendra, accused No.2 Bandeppa Badiger, CW-4 Shashank reveal that they have received

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the tainted notes and as such the hand wash gave positive result for the presence of Phenolphthalein. Similarly, the wash of the spot inside the drawer of accused No.1, pant pocket wash of accused No.2 Bandeppa Badiger also reveal the fact that the tainted notes were kept therein. During the investigation, tainted notes, cell phone of accused Nos.1 and 2, cell phones from CW-3 Nagendra, Rs.1,000/from the possession of accused No.2 and also his cell phone and motorcycle on which he had come to the bakery for collecting the bribe amount from complainant Sangeeta. The investigating officer has also collected the Voice sample of accused No.1 as well as CW-3 Nagendra.

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It is true that in the complaint, the complainant has not stated anything about the involvement of accused No.2 Bandeppa Badiger and accused No.3 Basavaraj Uppar. Of course, at the time of filing the complaint, neither the complainant, nor the investigating officer could imagine that at the request of CW-3 Nagendra, accused No.2 came and collected the bribe amount. So far as accused No.3 is

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concerned, during the investigation the investigating officer has came to know about the modus operandi of accused No.3 in allowing CW-3 Nagendra to keep two cell phones and permitting other convicts to use the said cell phones, more particularly cell phone number 6305854970, to make calls to their relatives and advocates and collect Rs.300/for one hour. After they made the call, he would collect back the cell phone and delete the conversation and also refurbish the cell phone so that the data shall not be retrieved.

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However, from the call detail report of cell calls made by accused No.1 as well as through cell phone No.6305854970, the investigating officer was able to know that the calls were made from cell phone No.6305854970. CWs-30 to 32, 34, 35 are the relatives of prisoners who used to visit the central prison to meet them. CW-33 is a practicing advocate, who used to visit jail for the purpose of communicating with his clients. The statements of these witnesses clearly indicates that sometime they used to get

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calls from cell phone No.6305854970, which is a cell phone

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belonging to CW-3 Nagendra. They corroborate with the case of the prosecution that accused No.3 used to permit convicts to communicate with their relatives and advocates using cell phone 6305854970 and collect Rs.300/- per hour from them. After they made the call, he used to take back the phone, delete the conversation and refurbish the phone so that the details of the calls made are not extracted.

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After the successful trap, the investigating officer

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has recorded the statements of accused Nos.1 and 2, wherein they have given explanation for possessing the tainted notes, which in the light of statement of the complainant, witness, and the investigating officer are found to be not true and does not corroborate the fact and circumstances in which they are trapped. In the light of the statements of the material witnesses, regarding the getting calls from Cell No.6305854970, which belongs to CW-3 Nagendra, over whom, accused No.3 had control in his capacity as the Head Warder, it is evident that he had

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allowed CW-3 Nagendra to keep cell phones and using them. Accused No.3 was permitting the other inmates of the jail to make communication and collect money and after the conversation used to delete the same in order to destroy evidence and also refurbish the cell phone so that in the event of making an investigation, the data should not be extracted.

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Taking into consideration the entire evidence collected at the investigation, the appointing authority has issued sanction to prosecute all the accused persons. There is prima facie material to proceed against all the accused

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including the accused number No3. A detailed trial is required and the prosecution must be given opportunity to establish the allegations against the accused persons including accused No3. In the light of thorough investigation conducted against all the accused including the accused No.3, the criminal proceeding initiated against the accused persons including accused No.3 cannot be said to amount abuse of the process of the Court.

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