Sri Naveen G Vs the State by Anti Corruption Bureau

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF THE CRIMINAL PROCEDURE, 1973 PRAYING TO CALL FOR RECORDS PERTAINING TO SPL. CASE (LOK) NO.2/2018 PENDING ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSION COURT, DAVANAGERE (ANNEXURE-B) AND QUASH THE IMPUGNED CHARGE SHEET IN SPL. CASE (LOK) NO.2/2018 PENDING ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSION COURT, DAVANAGERE (ANNEXURE-A) IN SO FAR AS THE PETITIONER (ACCUSED NO.1) IS CONCERNED AND CONSEQUENTLY ALL FURTHER PROCEEDINGS THEREON INCLUDING THE ORDER TAKING COGNIZANCE DATED 30.01.2018 PASSED IN SPL. CASE (LOK) NO.2/2018 PENDING ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSION COURT, DAVANAGERE (ANNEXURE-B) IN SO FAR AS THE PETITIONER (ACCUSED NO.1) IS CONCERNED.

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THIS WRIT PETITION IS COMING ON FOR DICTATING ORDERS, 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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Petitioner who is arraigned as accused No.1 has filed this petition under Article 226 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure, to quash the criminal proceedings initiated against him in Spl.C(LOK)No.2/2018 on the file of Prl.District and

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Sessions Judge, Davanagere and consequently, all further proceedings, including the order taking cognizance dated

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30.01.2018, for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act ('PC Act' for short) and Section 120-B of IPC.

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In support of the petition, the petitioner has contended that the impugned proceedings are illegal and arbitrary and as such liable to be set aside. The order sheet dated 30.01.2018 reveal that it is the Chief Administrative Officer/CMO who has taken cognizance. There is no application of mind and as such further proceedings are liable to be quashed.

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2.1 The essential ingredients of Sections 7, 13(1)(d) r/w 13(2) of P.C. Act are not satisfied. Though the trap mahazar was laid against the petitioner, it is one Dinesh Babu T.H who has received the tainted notes and he was apprehended. Admittedly, petitioner was not present at the place of trap. Later he was brought to the place of trap and was said to have been identified by the complainant. There

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was never a demand and receipt of illegal gratification by the petitioner. When the tainted notes are not recovered

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from the petitioner, he cannot be proceeded against. Therefore, continuation of proceedings would amount to abuse of the process of the Court and hence, the petition.

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2.2 Even where the allegations made in the charge sheet are taken at their face value and accepted in their entirety, they do not make out a prima facie case for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of PC Act. The investigating Officer who is working as Police Inspector is not even competent to register the case, let alone investigate and file charge sheet. Mere proof of receipt of money by the petitioner in the absence of demand or acceptance is not sufficient. Since the petitioner and revenue inspector gave report that the Khata and Pahani is to be made in the name of original grantee, out of vengeance false complaint if filed. No work was pending with the petitioner. Even otherwise the impugned proceedings are illegal and liable to be aside and hence the petition.

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On the other hand learned counsel for

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respondent submitted that at the relevant point of time, petitioner was working as Village Accountant, Thopenahalli Circle and accused No.2 was working as Revenue Inspector. Complainant S.Lokeshappa purchased land in 4 acres in Sy.No.50 of Kumaranahalli from Palakshappa and Mahadevappa through sale deed dated 23.06.2016. About 2 months prior to the filing of the complaint, petitioner Naveen called complainant from his cell number 8797943945 to the cell number 9902814844 of complainant and informed that the property purchased by him belong to SC/ST community person and somebody has

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filed application and that his higher officer has instructed petitioner to make spot inspection and submit report and called complainant to Santebennur. When the complainant met accused No.1, he said that he will correct every thing and that he has already spoken to Revenue Inspector and he would see what is to be done and for this he is required

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to pay money. Complainant replied that he would arrange

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for it and left the office.

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3.1 On 05.01.2017, petitioner called the complainant and informed him that they are visiting his village. Complainant informed him that he is not in the town. Petitioner replied that he is bringing Revenue Inspector and when complainant expressed his inability to be present, petitioner postponed his visit to Saturday. Again petitioner called and said that he has already spoken to his officer and complainant is required to pay Rs.45,000/- to set everything right. When complainant requested to reduce the bribe amount, petitioner replied that share is also to be given to the higher officer and if the amount is paid, things would be set at right. Complainant has recorded his conversation with petitioner on the cell phone. Since, complainant was not willing to pay the bribe, he filed the complaint.

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3.2 Based on the complaint, case was registered in Cr.No.3/2017 and trap was laid. On 09.01.2017, the

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raiding party along with complainant reached Santebennur, Sasalu Road. At 2.30 p.m. they stopped near Om Sri hotel to have lunch. In 10 minutes complainant received a call from accused No.2 Dinesh Babu T.H, Revenue Inspector. He came and sat in front of complainant and started conversation. He disclosed that petitioner had gone to the spot to submit report and directed the complainant to hand over the amount brought by him. Therefore, complainant paid Rs.15,000/- being the tainted notes and gave signal to the investigating officer. Accused No.2 was apprehended and trap mahazar was drawn and recovery of tainted noted of Rs.15,000/- was made from him. During the course of his voluntary statement, accused No.2 has admitted that he has received the tainted notes on the instructions of petitioner. At the time of trap, work was pending with the accused persons including petitioner. After conducting detailed investigation, charge sheet is filed against accused Nos.1 and 2 which makes out a strong prima facie case.

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Prosecution is required to prove the allegations at the full

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fledged trial and pray to dismiss the petition.

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In support of his arguments, learned counsel for

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petitioner has relied upon the following decisions:

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(i) Anand and Ors. Vs. The State of Karnataka and Ors. ( Anand )¹

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(ii) R.Rangaswamaiah Vs. The State of Karnataka Lokayuktha Police and Anr.

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( R.Rangaswamaiah )²

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(iii) Sri.M.S.Gopalakrishna Naidu and Anr. Vs. The State of Karnataka and Ors. ( M.S.Gopalakrishna Naidu )³

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(iv) The Authorised Signatory M/s ICICI Bank Ltd. Vs. The State ( M/s ICICI Bank Ltd. )⁴

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(v) C.Shekarappa and Anr. Vs. The State of Karnataka and Ors. ( C.Shekarappa )⁵

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(vi) M.Puttaswamy Vs. The State of Karnataka and Anr. ( M.Puttaswamy )⁶

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1 Crl.P.No.100290/2017 Dt: 23.02.2017

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2 Crl.P.No.552/2016 Dt: 13.08.2018

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3 Crl.P.No.4862/2006 Dt: 21.04.2010

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4 ILR 2015 KAR 3408

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5 Crl.P.No.6918/2021 c/w Crl.P.No.6903/2021 Dt: 03.10.2023

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6 Crl.P.No.391/2017 Dt:16.03.2023

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(vii) Jagannath G.Jadhav Vs. The Karnataka Lokayuktha and Anr. ( Jagannath G Jadhav )⁷

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(viii) Hemanth Kumar M.S. Vs. The State by Karnataka Lokayuktha Police ( Hemanth Kumar )⁸

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(ix) Nayeemulla Khan Vs. The State by Karnataka Lokayuktha Police ( Nayeemulla Khan )⁹

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(x) Nagaraj Shelagi and Ors. Vs. The State of Karnataka Lokayuktha Police ( Nagaraj Shelagi )¹⁰

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Heard arguments and perused the record.

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From the material placed in the charge sheet, it is evident that during 1956-57 originally land in Sy.No.44/2 measuring 4 acres 4 guntas, including 4 guntas of Kharab was granted in favour of one Hanumappa, S/o Basappa (MR.No.3/56-57). Through Sale deed dated 07.03.1974, he sold the same in favour of one Neelappa s/o

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7 W.P.No.3009/2017 Dt:29.08.2023

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8 W.P.No.16820/2023 Dt:23.11.2023

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9 Crl.P.No.9633/2023 Dt:08.12.2023

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10 W.P.No.53893/2016 Dt:15.02.2024

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Mahadevappa. In turn, the sons of Neelappa viz, Palakshappa and Mahadevappa sold the said property through sale deed dated 23.06.2016 in favour of complainant Lokappa. It appears after lapse of 42 years of the sale made by his grandfather Hanumappa, one Somasekhar made an application dated 19.10.2016 for change of Khata in the name of four sons of Hanumappa. While making the application, he has not referred to the 2 Registered sale deeds dated 07.03.1974 executed by Hanumappa in favour of Neelappa and thereafter sale deed dated 23.06.2016 by the LRs of said Neelappa in favour of the complainant.

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According to the prosecution, in this background,

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two months prior to the filing of the complaint, petitioner called from his cell phone:8747943945 and contacted complainant over his cell phone No.9902814844 and informed him that the property purchased by the complainant belongs to Scheduled Caste person and that

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his higher officer has directed petitioner to make spot inspection and give report and directed complainant to meet him at his office. When complainant went to his office, petitioner told him that he has already spoken to the accused No.2 Revenue Inspector and that they would help him and he is required to pay money for this. Complainant left his office, saying that he would arrange. On 05.01.2017, again petitioner Naveen called the complainant and enquired whether he is in the village and after Knowing that he is not available in the village, he intimated complainant that he would come on Saturday. Yet, again, petitioner called complainant over his phone and informed him that he would speak to his higher officer and give a favourable report and demanded ₹45,000/-. When complainant requested to reduce the amount, petitioner said that he is also required to give the money to his Senior Officers and they would give a favourable report. Complainant has recorded the conversation between him and petitioner in his cell phone and filed the complaint. In

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this background, the complaint came to be registered and

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trap was laid.

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It is relevant to note that when the case was registered, the Anti Corruption Bureau was investigating the offences under the provisions of PC Act. Accordingly, the case was registered and initially investigation was taken up, charge sheet was filed by the Anti Corruption Bureau. In fact, this petition was filed against the State represented by Anti Corruption Bureau. However, vide order dated 18.08.2023, it was substituted by the Karnataka Lokayukta. The first and foremost objection raised by the petitioner is that the Government established ACB in exercise of the powers under Section 2(s) of the Cr.P.C and issued Notification dated 30.03.2016, declaring

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the office of Dy.SP, in Bangalore city and across Karnataka as the police stations. Therefore, only Dy.SP is competent to register the case. However, in the present case, the

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police inspector, ACB has registered the case and he is not

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competent to register the case and investigate the matter.

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As rightly submitted by the learned counsel representing respondent, as per Section 154 Cr.P.C, in case of information regarding cognizable offences, if given orally, the officer in charge of the police station shall reduce it to in writing and enter into a book to be kept by such officer in such form as the State Government may prescribe in this behalf. In fact, in the present case, the complaint is addressed to the Dy.SP. However, when the complaint was presented, Dy.SP was not in the police station. As rightly drawn the attention of the Court to Section 2(o) of the Cr.P.C, which defines the term Officer in-charge of police station, includes, when the officer incharge of the police station is absent from the station house or unable from illness or other cause to perform his duties, the police officer present at the station house who is next in rank to such officer and is above the rank of

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constable or, when the State Government, so direct, any

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other police officer so present.

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In this context, learned counsel representing respondent would submit that though the complaint was addressed to the Dy.SP, when the complainant went to the police station to give the complaint, DY.SP was not present and therefore the police inspector in his capacity as officer in-charge of the police station has received the complaint

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and registered the case. In order to establish this, the learned counsel representing respondent has produced the true copy of station house diary dated 09.01.2017. It reveal that on 09.01.2017, at 6.00 a.m, Dy.SP was incharge of the police station and he allotted the work to the staff and proceeded to conduct investigation to Davangere by placing the police inspector in charge. At 9.30 a.m, the complainant has gone to the PS and filed the complaint. As an officer in-charge of the police station, police inspector has received the complaint, registered the case and

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transmitted FIR to the Court. Therefore, it cannot be find fault with by claiming that the police inspector was not competent to register the case. In the decisions relied upon by the petitioner, the prosecution has failed to place on record necessary documents to show that when the police inspector registered the case, he was in-charge of the PS. However, in the present case, the documents produced by the learned counsel for respondent clearly established that police inspector was in-charge of the police station and in his capacity as the officer in-charge of the police station, he was competent to register the case.

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As per Notification dated 20.04.2016 in HD.71/PoSiPa/2016, in exercise of the powers conferred by Section 17(c) of PC Act, the Government of Karnataka has authorised all the Inspectors of Police, office of the Anti Corruption Bureau to investigate for the purpose of the said Section. Therefore, the police inspector of Anti Corruption Bureau was competent to register the case and also

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conduct initiation and file charge sheet and the same cannot be find fault with.

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It is pertinent to note that after the case was registered, the investigating officer summoned the witnesses, drew the trap Mahazar and the bait money of ₹15,000/- brought by the complainant were smeared with Phenolphthalein and stage was set for trapping petitioner. The trap team along with the investigating officer were proceeding towards Santebennur. When they were in the outskirts, as it was lunch time, all of them were having lunch at Om Shree hotel. At that time, accused No.2 Dinesh Babu T.H, called the complainant and came to the hotel within 10 minutes and demanded to handover the bribe amount to him as he has sent petitioner to Kumarahalli. Accordingly, complainant handed over the tainted notes of ₹15,000/- to him. Accused No.2 Dinesh Babu T.H received the tainted notes, counted them with

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two hands and kept them in the pocket of his T-shirt and

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also enquired about the balance amount.

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When he was going out of the hotel, on the basis of signal given by the complainant, accused No.2 Dinesh Babu T.H was apprehended. After apprising him about the complaint, his hands were washed with freshly prepared sodium carbonate solution, which gave positive result for the presence of Phenolphthalein. From his possession, the tainted notes were recovered. During the course of his defence statement accused No.2 Dinesh Babu T.H has stated that when he was returning from surveying burial grounds at Santebennur, petitioner met him and requested to collect money from a person known to him and that he will come and receive it from petitioner. Accordingly, when he was working in the office unknown person came and enquired about petitioner and when he informed that petitioner has gone to Komaranahalli, one of the said person requested to receive the money and handover to the petitioner. When he agreed and came out

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of the office, said person took him to a hotel saying that at present he is not having money and it is with one of his relative. The person who was eating lunch came to the backside of the hotel and handed over money. When he was proceeding to the office, officials stopped him. He has received money at the instance of petitioner.

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In the light of the fact that accused No.2 Dinesh Babu T.H claimed that he took the money from complainant on the say of petitioner, he was brought to the hotel. The recovery Mahazar was drawn. Since there was space constraint and the customers were frequenting the hotel, they went to Nadakacheri. Petitioner and accused No.2 admitted the fact that they know each other as well as the complainant. During the course of his statement, accused No.1 i.e, petitioner Naveen gave statement that accused No.2 Dinesh Babu T.H is only responsible and he do not know anything about the complainant paying the bribe amount of ₹15,000/- and accused No.2 receiving the

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same. Not only the defence statement of accused Nos.1 and 2 contradict each other, but also the statements of complainant, shadow witness as well as the contents of the seizure Mahazar and also what actually transpired before the investigating officer.

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The conversation between the petitioner and complainant, which was recorded by the complainant on his cell phone and complaint averments makes out a prima facie case against the petitioner. Time and again he has referred to the accused No.2 who is the Revenue Inspector saying that he has already spoken to him and that together they would give a favourable report. When the complainant and the trap team arrange to trap the petitioner, accused No.2 has intercepted and collected the tainted notes, stating that he is instructed by petitioner to receive the same. At every stage, what actually transpired and the development which took place right from the inception, wherein accused No.1 demanded ₹45,000/- with an

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assurance that he would make sure that accused No.2 would join him to give a favourable report is recorded in the complaint and pre-trap mahazar. The explanation given by accused Nos.1 and 2 in support of their defence is inconsistent with that of the statements of the complainant and shadow witness.

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CW-4 Prakash is the owner of the Om Shree hotel where the complainant, investigating officer and others had lunch and accused No.2 Dinesh Babu T.H collected bribe money from the complainant. CW-5 Harish is the driver of the private vehicle. They are the witnesses to the trapping of accused No.2 Dinesh Babu T.H and later petitioner brought to the hotel and have also given statement consistent with the prosecution case. FSL report is also consistent with the case of the prosecution. In the light of the overwhelming evidence collected at the investigation, there is prima facie material to proceed against both accused persons including the petitioner. Having regard to the facts and circumstances of the case,

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the citations relied upon by the petitioner are not applicable

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to the case on hand. For the above reasons, this Court is of the considered opinion that it is not a case for quashing the criminal proceedings against the petitioner on any of the

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grounds urged and accordingly, the following:

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ORDER

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