Sri.Sunil Kumar Patil Vs State of Karnataka by

SRI. SUNIL KUMAR PATIL S/O LATE SUBHASH RAO PATIL AGED 46 YEARS OCCUPATION: ASSISTANT KARNATAKA VETERINARY ANIMAL AND FISHERIES SCIENCES UNIVERSITY BIDAR DISTRICT (ON CONTRACT BASISCURRENTLY TERMINATED FROM SERVICE SINCE 09-09-2022) RESIDENCE AT HOUSE NO. 9-8-126/A SHARADA NIVAS, BASAVANAGAR COLONY BVB COLLEGE ROAD, BIDAR-585 403 SHOWN IN THE FIR AS SRI. SUNIL KUMAR S/O SUBHASH RAO PATIL ASSISTANT (ON CONTRACTOR BASIS) OFFICE OF THE COMPTROLLER KARNATAKA VETERINARY ANIMAL AND FISHERIES SCIENCES UNIVERSITY BIDAR DISTRICT, (CURRENTLY TERMINATED FROM SERVICE) (NOTE: SINCE THE NAME AND ADDRESS OF THE PETITIONER ARE INCORRECTLY MENTIONED IN THE FIR, FOR THE PURPOSE OF CLARIFICATION THE COPY OF THE AADHAR CARD OF THE PETITIONER

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HC-KAR

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IS HEREWITH PRODUCED)

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… PETITIONER

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(BY SRI. SACHIN M. MAHAJAN, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY LOKAYUKTA PS., BIDAR DIST. REP. BY SPECIAL PUBLIC PROSECUTOR, KARNATAKA LOKAYUKTA POLICE STATION OLD CMC BUILDING, STATION ROAD AMBEDKAR CIRCLE, BIDAR-585 401

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SRI. NEELAPPA M. OLEKARA AGED ABOUT 52 YEARS DEPUTY SUPERINTENDENT OF POLICE KARNATAKA LOKAYUKTA POLICE STATION OLD CMC BUILDING, STATION ROAD AMBEDKAR CIRCLE, BIDAR-585 401 …RESPONDENTS

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(BY SRI. GOURISH S. KHASHAMPUR, SPECIAL PUBLIC PROSECUTOR FOR R1 & R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND OF THE CONSTITUTION OF INDIA, 1950 READ WITH SEC. 482 OF CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE OF CERTIORARI QUASHING THE FIR AND COMPLAINT/SOURCE REPORT DATED 09.10.2023 IN CRIME NO. 11/2023 DATED 03.12.2023 REGISTERED BY THE 1^ST RESPONDENT/KARNATAKA LOKAYUKTA POLICE, BIDAR DISTRICT AS AGAINST THE PETITIONER HEREIN WHO IS ARRAYED AS ACCUSED ALLEGING THE COMMISSION OF OFFENCE PUNISHABLE UNDER SEC 13(1)(b) READ WITH SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988 (AMENDMENT ACT-2018) WHICH IS PENDING ON THE FILE OF THE HONOURABLE SPECIAL PRINCIPAL DISTRICT AND SESSION JUDGE, DISTRICT AND SESSION COURT BIDAR DISTRICT, INSOFAR AS THE PETITIONER/ACCUSED IS CONCERNED (PRODUCED VIDE ANNEXURES A AND B) AND ETC.,

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HC-KAR

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 01.04.2025 AT KALABURAGI BENCH, COMING ON FOR ‘PRONOUNCEMENT OF ORDER, BEFORE THE PRINCIPAL BENCH AT BENGALURU, THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE S RACHAIAH

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CAV ORDER

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(PER: HON'BLE MR. JUSTICE S RACHAIAH)

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This writ petition is filed by the petitioner invoking the writ jurisdiction to quash the FIR in Crime No.11/2023 dated 03.12.2023 registered by the respondent No.1 – Karnataka Lokayukta Police, Bidar, for the offences punishable under Sections 13(1)(b) r/w 13(2) of the Prevention of Corruption Act, 1988 (Amendment Act, 2018) (for short ‘PC Act’).

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Factual matrix of the case:

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The petitioner was appointed as an Assistant in the office of the Comptroller of the University on contract basis, for a period of 179 days. After the expiry of the contract period, the petitioner was re-appointed on contract basis for every 179 days by the University.

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HC-KAR

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It is submitted that since the university was understaffed and in order to regulate the menial works of the University, on 31.03.2022, the University called for 126 service personnel on minimum basic pay (contractual basis) against the sanctioned vacant posts in the University, for a further period of 179 days with effect from 30.03.2022 to 24.09.2022. The petitioner was selected under the head of “University General Administration” for the post of Assistant. Things stood thus, after the lapse of more than a year from the date of termination of the contract of the petitioner’s employment with the University, it is stated that, based on the alleged source report dated 09.10.2023 said to have been submitted by the respondent No.2, respondent No.1 - Karnataka Lokayukta, Bidar, registered FIR against the petitioner for the offences stated supra . According to the said report, it is said that the petitioner / contractual employee, who has been appointed on a contractual basis, had amassed wealth to the tune of Rs.1,66,10,000/- (237.2%) disproportionate to his known source of income in his name and also that of his family.

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HC-KAR

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Therefore, initiation of action against the said petitioner was made by the respondent - police.

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Heard Sri. Sachin M. Mahajan, learned counsel for the petitioner and Sri. Gourish S. Khashampur, learned Special Public Prosecutor for the respondent Nos.1 and 2.

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It is the submission of the learned counsel for the petitioner that the initiation of criminal case, especially under the Prevention of Corruption Act, against the contract employee is not amenable under the law as he was not considered as a public servant. He was an outsourced contractual employee. He worked as an Assistant without discharging any public duty and he was terminated from service vide its order dated 09.09.2022 by the University more than a year ago and does not come within the purview of the definition “public servant” under Section 2(c) of the PC Act, 1988 and also under Section 21 of IPC, 1860. Such being the fact, registration of the case against such a contractual employee stating that he had amassed disproportionate assets, as stated supra, is highly illegal and erroneous.

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HC-KAR

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It is further stated that Section 17(2) of the PC Act mandates an order from an Officer not below the rank of Superintendent of Police for investigation of offence punishable under Section 13(1)(b) of PC Act. Section 13(1)(b) stipulates that an order of police officer not below the rank of Superintendent of Police and further it is held that the application of mind is required to depute the person to conduct investigation in such a matter.

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It is further submitted that the preliminary enquiry is essential before registration of FIR and the same is mandatory as per the judgment of the Hon'ble Apex Court. In the present case, such preliminary enquiry has not been made by the authority. Therefore, the FIR has to be quashed on that ground alone. Further, it is held that, the source report of which the respondent No.2 - police have taken is not proper, hence, the same has to be set aside. Having said thus, learned counsel for the petitioner prays to allow the petition.

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Per contra, learned Special Prosecutor for the respondent No.1 – Lokayukta filed the statement of objections and he further submitted that at the time of considering the

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petition under Section 482 of Cr.P.C, the Court should not examine the cases which lead to conviction, but, to consider whether there is a prima-facie case.

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It is further submitted that in a case where the disproportionate assets are concerned, the burden lies on the accused to prove the known sources of income. This is a departure from the principle of criminal law.

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It is further submitted that since the case is of disproportionate assets, the same has to be tested through the trial. Before conducting the trial, the entire documents collected by the Investigating Officer filed in the form of charge-sheet cannot be appreciated or in other words, mini trial at the stage of considering the petition under Section 482 of Cr.P.C ought not to be conducted.

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In support of his case, he relied on the following judgments:

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a. State by Dy.SP, Vigilance and ACB v. G.Easwaran¹ b. State of Tamil Nadu v. R.Soundirarasu and others² c. State of Karnataka v. T.N.Sudhakar Reddy³

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1 Crl.Appeal No.1405/2019 (DD 26.03.2025)

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2 (2023) 6 SCC 768

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d. Central Bureau of Investigation and Another v. Thommandru Hannah Vijayalakshmi and Another⁴

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e. State of Chhattisgarh and Another v. Aman Kumar Singh and Others⁵ with Uchit Sharma V/s State of Chattisgarh and Others⁶

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f. State of Karnataka v. L.C.Nagaraj⁷

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g. Sanju Rajan Nayar v. Jayaraj⁸

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Making such submissions, learned Special Prosecutor for respondents - Lokayukta prays to dismiss the petition.

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Having heard the learned counsel for the respective parties and also perused the materials available on record, now, it is relevant to advert to the facts of the case.

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The petitioner was working as an Assistant in the office of Comptroller, Karnataka Veterinary, Animal and Fisheries Sciences University, Bidar.

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During his tenure, he stated to have amassed disproportionate assets to the extent of 237.2% which is considered as excess to his known source of income. The said fact has been founded through the source report.

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3 Crl.A No.5001/2024

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4 (2021) 6 SCC 135

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5 Crl.A Nos.646-48/2023

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6 (2023) 6 SCC 559

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7 SLP (Crl) Dairy No.37568/2023

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8 2024 SCC Online 582

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HC-KAR

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Being aggrieved by the registration of FIR, the petitioner has approached this Court for quashing the FIR contending inter-alia that the check period is invalid, preliminary enquiry has not been conducted and the source report is also invalid etc.

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In this context, it is relevant at this stage to refer the proposition of law in the case of STATE REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION CHENNAI CITY – I DEPARTMENT v/s. G.EASWARAN⁹ , wherein, the Hon'ble Supreme Court held in paragraph Nos.7, 8, 9 and 14, which read as under:

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“ 7 . It is not in dispute that the Special Court, while dismissing the discharge application, as well as the High Court while dismissing the revision petition, arrived at clear findings that there was a prima facie case, and this conclusion was drawn after examining the allegations as they stand. The impugned order operates against the established law that while the bar under section 397(3) of the CrPC does not curtail the remedy under Section 482, it is trite that inherent powers must be exercised sparingly. This Court, in Krishnan v.

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9 2025 INSC 397

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HC-KAR

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Krishnaveni reported in (1997) 4 SCC 241, has held:

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“ 8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397, read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1)….

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10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person — accused/complainant — cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code…As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out…”

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(emphasis supplied)

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8. In a later decision in Renu Kumari v. Sanjay Kumar reported in (2008) 12 SCC 346, where the High Court had entertained and allowed a petition under Section 482 Cr. P.C. in similar circumstances to quash the

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proceedings after a petition for discharge was dismissed by the Magistrate and the subsequent revision petition was dismissed by the Sessions Judge, this Court set aside the High Court's quashing order and held as follows:

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“9. (….) In R.P. Kapur v. State of Punjab reported in AIR 1960 SC 866 this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings:

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(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

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(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. (AIR p. 869)

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In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 CrPC, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge…It would not be proper for the High Court to analyse the case of the complainant

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in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with…”

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(emphasis supplied)

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9. In the present case, the inherent power under Section 482 Cr. P.C. for quashing the criminal proceedings was invoked after the dismissal of the discharge application and the consequent revision petition. In State by Karnataka Lokayukta, Police Station, Bengaluru v. M.R. Hiremath reported in (2019) 7 SCC 515, this Court examined a similar situation where the High Court entertained a petition under Section 482 Cr. P.C. filed against the dismissal of a discharge petition. Setting aside the judgment of the High Court, this Court held:

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“ 25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N.

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HC-KAR

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Suresh Rajan⁹ , adverting to the earlier decisions on the subject, this Court held:

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29. … At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.

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26. For the above reasons we are of the view that the appeal would have to be allowed. We accordingly allow the appeal and set aside the judgment and order of the High Court dated 274-2017….We accordingly maintain the order passed by the learned trial Judge on 5-12-2016 dismissing the discharge application filed by the respondent.”

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14. Thus, there is no doubt that the High Court committed an error in quashing the prosecution on the ground that the sanction to prosecute is illegal and invalid. In conclusion, we find that the objections raised in the revision petition against the Special Court's order dismissing the discharge application were identical to the grounds raised in the petition under Section 482 Cr. P.C., from which the present appeal arises. Second, apart from being congruent

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and overlapping, the respondent could not demonstrate any material change in facts and circumstances between the dismissal of the revision petition by the High Court and the filing of the quashing petition under Section 482 Cr. P.C. Third, the validity of the sanction can always be examined during the course of the trial and the problems due to the typographical error as alleged by the State could have been explained by producing the file at the time of trial. Fourth, it is settled that a mere delay in the grant of sanction for prosecuting a public authority is not a ground to quash a criminal case.”

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On careful reading of the dictum of the Hon'ble Supreme Court, at the time of considering the petition under Section 482 of Cr.P.C, the Court has to see whether or not there are sufficient grounds for proceeding against the accused based on the materials. It is needless to say that, at the time of considering the said petition, the Court cannot look into the materials available for the defence.

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Though, the learned counsel for the petitioner contended that the Superintendent of Police has not applied proper mind in granting the sanction required as per Section 17

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of the PC Act, the same is a matter of fact and it has to be decided through proper trial.

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In this context, it is relevant to refer the judgment of the Hon'ble Supreme Court in the case of DIRECTOR, CENTRAL BEREAU OF INVESTIGATION v. ASHOK KUMAR ASWAL¹⁰ wherein it is held that,

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“15. All the above apart, time and again, this Court has laid down the validity of a sanction order, if one exists, has to be tested on the touchstone of the prejudice to the accused which is essentially a question of fact and therefore, should be left to be determined in the course of the trial and not in the exercise of jurisdiction either under Section 482 of the Code of Criminal Procedure, 1973 or in a proceeding under Articles 226/227 of the Constitution.”

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(emphasis supplied)

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As regards the preliminary enquiry is concerned, the Hon'ble Supreme Court in the case of STATE OF KARNATAKA v. CHANNAKESHAVA H.D AND ANOTHER¹¹ , held

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in paragraphs No.12 and 13, which read thus:

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10 (2015) 16 SCC 163

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11 2025 SCC Online SC 753

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HC-KAR

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“12. To sum up, this Court has held that in matters of corruption a preliminary enquiry although desirable, but is not mandatory. In a case where a superior officer, based on a detailed source report disclosing the commission of a cognizable offence, passes an order for registration of FIR, the requirement of preliminary enquiry can be relaxed.

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15. In view of the above, it is clear that preliminary enquiry was not mandated in the present case, considering that detailed information was already there before the SP in the form of the source report referred above. We have also gone through the order passed by the SP, directing registration of FIR against respondent no. 1, which reflects that the SP had passed that order on the basis of material placed before him in the form of the source report.”

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On careful reading of the precedents of the Hon’ble Supreme Court relating to preliminary enquiry and sanction, it is held that a preliminary enquiry can be dispensed with, if, the FIR is based on a detailed source report submitted to the Superintendent of Police.

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As regards the check period is concerned, whether it is valid or not has to be decided in the trial. Therefore, I am of the considered opinion that the argument of the learned counsel for the petitioner cannot be sustained in respect of quashing the proceedings. Hence, the petition is deserved to be dismissed. Ordered accordingly.

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Sd/(S RACHAIAH) JUDGE

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BSS List No.: 19 Sl No.: 1

Sri.Sunil Kumar Patil v. State of Karnataka by

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Sri.Sunil Kumar Patil v. State of Karnataka by

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