1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF FEBRUARY, 2016 BEFORE THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY CRIMINAL REVISION PETITION NO.814 OF 2015 BETWEEN: SMT.KANCHANA L RAO W/O N.LAKSHMAN RAO PESHWE, AGED ABOUT 43 YEARS, RESIDING AT NO.B-201, MANTI PRIDE APARTMENTS, 1ST BLOCK, JAYANAGARA, BENGALURU - 560 011 PETITIONER (BY SRI.M.S.BHAGWAT, ADV.) AND: THE STATE OF KARNATAKA BY LOKAYUKTHA POLICE, CITY DIVISION, BENGALURU, REPRESENTED BY ITS DEPUTY SUPERINTENDENT OF POLICE, M.S.BUILDING, DR. AMBEDKAR VEEDHI, BENGALURU - 560 001 RESPONDENT (BY SRI.VENKATESH P DALAWAI, SPL.PP) THIS CRL.RP IS FILED UNDER SECTIONS 397 AND 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE ORDER DATED 16.07.2015 IN [CASE NUMBER] 2 ON THE FILE OF THE XXIII [ACT] AND S.J./SPL. JUDGE UNDER [ACT] (CCH-24) ANNEXURE -A, IN SO FAR AS THE PETR. (ACCUSED NO.2) IS CONCERNED. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 01.10.2015 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The Lokayuktha sought to prosecute husband of the petitioner under [SECTION] of the [ACT]. The case came to be registered in [CASE NUMBER]. The check period was taken as 29.8.1992to 22.6.2012.
2. In the said proceedings, the [ENTITY] recorded statement of wife and thereafter she is made as Accused No.2 on the ground that she has committed an offence punishable under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT]. On the basis of the charge sheet filed by the [ENTITY] the learned Magistrate has taken cognizance of the offences alleged against both husband as well as the wife.
3. Being aggrieved, the present petitioner who is wife of Accused No.1 has presented the present petition seeking to allow revision petition and to set aside the order dated 16.7.2015 in [CASE NUMBER] on the file of XXIII Additional City Civil & Sessions Judge/Special Judge under [ACT] (CCH-24) taking cognizance of the offences in so far as the petitioner is concerned.
4. The allegation against the petitioner is that she has instigated her husband to legalize the income illegally acquired by him. Further the rental income of Rs.90,000/- is claimed annually for the Assessment Years 2004-05 to 2008-09 and Rs.1,92,000/- for Assessment Year 2009-10 to 2010-11. It is also alleged that no agricultural income was claimed for Assessment Years 2006-07 to 2007-08 but later agricultural income is claimed and for the Assessment Years 1997-98, 1998- 99, 2000-01 to 2005-06 agricultural income is overwritten/tampered. Thus it is alleged that the petitioner has committed offences punishable u/[SECTION], [SECTION], [SECTION] of [ACT].
5. The learned Magistrate on the basis of the charge sheet filed by [ENTITY] took cognizance against husband of the petitioner as well as the petitioner. Aggrieved by the same, the petitioner has filed the present petition as aforesaid.
6. I have heard the learned counsel for the petitioner and also the learned counsel for the respondent [ENTITY] and perused the entire records.
7. The learned counsel for the petitioner submits that materials on record do not establish the allegations made against the petitioner. The petitioner has been assessed to income tax on the income earned by her. The properties which are standing in her name belongs to her and are her self acquired or inherited properties. The petitioner cannot be held liable for the alleged actions of her husband. There is no material or evidence in support of the charge sheet that the petitioner has instigated her husband to amass wealth and the ingredients of [SECTION] of [ACT] are not satisfied at all.
8. It is submitted that the flat at No.B-201, Mantri Pride Apartment, Byrasandra, Jayanagar 1st Block, Bengaluru was rented out from 2004 to 2006. After transfer of husband of the petitioner they are staying in the said flat. The petitioner has never claimed any rental income in respect of the said Flat from assessment year 2007-08 onwards.
9. The learned counsel for the petitioner further submits that the income tax returns are revised for the Assessment Year 2006 to 2007 to 2010 - 2011. The respondent police have not verified the original income tax returns with the Income Tax department before making such an allegation against the petitioner.
10. The petitioner has claimed her agricultural income and business income for the assessment years 1997-98 to 2001-02 and the same has been duly accepted by the Income Tax Department. The Income Tax Department has also issued revised Assessment orders, thereby accepting the income declared by the petitioner. Without getting any confirmation from the Income Tax Department, the respondent police have launched a criminal prosecution which cannot be sustained.
11. It is submitted that the respondent police have only considered the assets standing in the name of the petitioner but failed to take into account the income as per her annual income tax returns. The petitioner has duly accounted all the income while filing her income tax returns and the respondent police is bound to consider the same. The entire investigation is tainted with mala fides. It is submitted that the Income Tax Office has sent the income tax returns for the years 2003 - 2007. However, the respondent police have deliberately not made them a part of the documents produced along with the charge sheet. The respondent police have suppressed the material evidence with mala fide intention to frame the petitioner.
12. The respondent police have concluded in the final report that he is not going to consider the I.T. returns for Assessment Year 2012-13 for the purpose of income earned to boost up the assets with a mala fide intention to implicate the petitioner. It is submitted that the court below has not applied its mind while taking cognizance. The order does not indicate that the learned Magistrate has applied his mind which is a pre- requirement. The respondent police have no jurisdiction to investigate offences punishable exclusively under the [ACT]. On recording the evidence of the petitioner, petitioner is now arrayed as an accused using the said statements against her in violation of the fundamental right enshrined under [SECTION] of the [ACT].
13. Lastly it is submitted, in the instant case when the petitioner has submitted all the documents, agricultural land owned by her, petitioner being partner of M/s.Vasanatha Khan Estates, with her father, the property standing in her name could not have been considered to be the assets of her husband, who is a public servant.
14. On the other hand, the learned counsel for the respondent [ENTITY] submits to dismiss the petition. Taking of cognizance of an offence is an area exclusively within the domain of learned Magistrate and the learned Magistrate is not required to record reasons. The learned Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. It is a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence. It is submitted that legislature advisedly used the expression "satisfactorily account" casting burden on the accused to give plausible explanation as to how he acquired the large wealth. Exercise of power under [SECTION] of the Code is an exception and not a rule.
15. It is submitted that mere fact that the family member is assessed to tax is not sufficient to discharge the accused unless it is shown that there is independent income and lastly it is contended that either a public servant or non-public servant, who has been charged for an offence under [SECTION] of the [ACT], in the event of which, the Special Judge has got the jurisdiction to try such offences against the public servant as well as against a non-public servant.
16. The learned counsel for the petitioner has placed reliance on the following decisions in support of his contentions.
(i) [PRECEDENT] advance the argument relating to grounds under which inherent jurisdiction may be exercised namely, allegations on their face value do not constitute an offence, where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act to the institution and continuance of the proceedings and where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(ii) [PRECEDENT] to advance the contention that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course.
(iii) [PRECEDENT] to the effect that there is sufficient ground for proceeding against the accused and formation of such an opinion is to be stated in the order itself.
(iv) [PRECEDENT] to contend that the whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence.
(v) Mrs. [PRECEDENT] & connected matters) DD
16.7.2015 to submit that mere saying that "perused the records" does not indicate that the Magistrate has applied his mind and found that the allegations in the charge sheet papers are sufficient to constitute the offences alleged.
(vi) [PRECEDENT] to the effect that the police officers attached to the Lokayukta office can only operate within the sphere allotted to them in registering and investigating the cases in respect of the offences which fall under the [ACT] and they cannot investigate into the cases involving offences that fall exclusively under the [ACT].
17. The learned counsel for the respondent has placed reliance on the following decisions in support of the above contentions.
(i) [PRECEDENT], to contend that at the stage of cognizance and summoning of accused, Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons.
(ii) [PRECEDENT], to advance the submission, even at the stage of framing charge, the court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused.
(iii) [PRECEDENT] to submit that the property in the name of an income tax assessee itself cannot be a ground to hold that it actually belongs to such an assessee, and
(iv) State through [PRECEDENT] to the effect, an accused person, either a public servant or non-public servant, who has been charged for an offence under [SECTION] of the [ACT], could also be charged for an offence under [ACT], in the event of which, the special judge has got the jurisdiction to try such offences against the public servant as well as against a non-public servant.
18. On the basis of the above contentions of the learned counsel for the parties, the point that arises for consideration is, "Whether the petitioner has made out a case for interference with the order dated 16.7.2015 in [CASE NUMBER] on the file of XXIII Addl. City Civil & Sessions Judge and Special Judge for [ACT] Bangalore City?"
My answer would be in favour of the petitioner for the following reasons:
19. It cannot be disputed that the learned Magistrate has to apply his mind judiciously as to the prima facie case to proceed against the accused person and the order taking cognizance shall indicate such an application of mind, though, the learned Magistrate is not required to assign detailed reasons. The learned Magistrate is entitled to evaluate the materials on record and cannot appreciate to satisfy sufficiency of reasons to proceed against the accused at the time of taking cognizance. In the instant case, the order passed by the learned Magistrate is to the following effect:
"Perused the final report. Cognizance is taken against the accused No.1 and 2. Register the case returnable by 10.8.2015".
20. The above order cannot be said to have passed the test of judicial application of mind. The first accused is alleged with what offences and second accused, the petitioner is alleged with what offences, is not to be borne out from the impugned order. It is no doubt true that it is the exclusive domain of the learned Magistrate to take cognizance of the offences. There is sufficient basis for proceeding against the petitioner and formation of such an opinion ought to have been indicated in the order. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is a prima facie case against the accused, though the order need not contain detailed reasons.
21. Mere saying that "perused the records" does not indicate that the Magistrate has applied his mind and found that the allegations in the charge sheet papers are sufficient to constitute the offences alleged. It is true, at that stage, the court is taking cognizance not against the accused persons, but against the offences alleged. Therefore, it is incumbent upon the court to examine the charge sheet papers and thereafter, apply its judicious mind to find out whether the allegations are sufficient to constitute the offences alleged against the accused, then only by means of giving reasons howsoever short it may be, the court has to pass appropriate orders. This test is not forthcoming from the impugned order.
22. In the case on hand, initially the case is registered against husband of the petitioner and petitioner was interrogated and those statements recorded through the petitioner are made use of for registering the case against the petitioner, which is not permissible in view of the right enshrined under [SECTION] of the [ACT] which provides that no person accused of any offence shall be compelled to be a witness against himself.
23. In order to exercise power of inherent jurisdiction to interdict criminal prosecution, the circumstances are that no case is made out for the alleged offences on the available materials, to prevent the abuse of process of the court and to secure the ends of justice. It is alleged that the petitioner has instigated her husband to legalize the illegal income of her husband by purchasing site, flat, complex and buildings in her name. Except the allegation, the prosecution has not placed any material in support of this allegation.
24. It is alleged that petitioner claimed Rs.90,000/- as annual rental from the flat for the Assessment Years 2004-05 to 2008-09 and Rs.1,92,000/- as annual rental income for assessment years 2009-10 and 2010-11. It is submitted by the petitioner that in fact the flat was rented out only from 2004-06 and it was in their occupation from 2006. The petitioner has made available copies of the income tax returns for the assessment years 2007-08, 2008-09, 2009-10, 2011-12 and 2012-13 at Annexures-D, D1, D2, D3 & D4 and the respective assessment orders are produced at Annexures-E, E1, E2 & E3 respectively. If there is any mistake in the Income tax Returns, revised assessment is permissible and accordingly revised assessment orders are issued in favour of the petitioner. The respondent police ought to have verified these things from the Department before alleging offence against the petitioner under [SECTION] of [ACT].
25. It is further allegation against the petitioner that she fabricated the statements filed along with the Return to the Income Tax Department and only in the internal statement, agricultural income is claimed and that the agricultural income is over-written/tampered. The Income Tax Department has already issued Assessment orders thereby accepting the income declared by the petitioner. It is the case of the petitioner that the respondent police have not verified the original income tax returns filed by the petitioner with the Department and the respondent police have not got confirmation from the Income Tax Department regarding over-writing/tampering. The petitioner has produced the endorsement dated 19.8.2015 vide Annexure-F to the petition that the information relating to the Assessment Years 1998-99 to 2002-03 is not furnished since the records are not available in the office. It was incumbent upon the respondent police to verify the originals before saying that the petitioner has tampered or forged the income tax returns.
26. It is true that just because the person is assessed to Income tax and income tax is paid is the conclusive proof that the income and the properties assessed in his/her name are the properties of that assessee. Because by acquiring the property in the name of family members and by assessing the income and the properties in his/her name and paying the income tax, one can easily get through. It depends upon the facts of the particular case for which the other attendant factors are to be considered. Here in the instant case, the petitioner claims agricultural income as well as the business income for which she has been assessed all throughout, which are not duly verified before asserting that the petitioner has committed the alleged offences.
27. The learned counsel for the petitioner submits that the police attached to Lokayukta office has no authority or is he empowered to register and investigate the cases relating to offences falling exclusively under the [ACT] and as such, the exercise of such authority by the Inspector of Police will have to be held as nothing but an act exercised without jurisdiction. In this regard it is relevant to refer the decision in [PRECEDENT] where this Court has taken the view that the Police Officers attached to the Lokayukta office can only operate within the sphere allotted to them in registering and investigating the cases in respect of the offences which fall under the [ACT] and they cannot investigate into the cases involving offences that fall exclusively under the [ACT].
28. As a counter to this contention, the learned counsel for the respondent placed reliance on a decision in State through [PRECEDENT] referred to earlier. The Hon'ble Supreme Court in Para-34 of the judgment has observed as follows:
"34 This Court also held, even if a non-public servant, though charged only of offences under [SECTION] and [SECTION] [SECTION], he could also be tried by the Special Judge with the aid of [SECTION] of the [ACT]."
Therefore, the Special Judge trying any case under the [ACT], may also try any offence, other than an offence specified in [SECTION], and not otherwise. In the instant case, the petitioner is charged exclusively with [ACT] offences and not in addition to offences as mentioned in [SECTION] of [ACT] and therefore, the respondent police could not have registered and investigated the case as against the petitioner.
29. The respondent police have already registered the case as against husband of the petitioner alleging offence of disproportionate assets to his known sources of income. The prosecution is at liberty to establish the said offences as alleged against him that he has acquired the properties in the name of the petitioner also. For the alleged acts of husband of the petitioner, petitioner cannot be held responsible just by alleging some or the other offences against her. If at all the properties in the name of the petitioner could be included in the properties of husband of the petitioner or not would be decided in the said case as against the husband of the petitioner itself. In the absence of prima facie materials as against the petitioner for the offences as alleged against her, the case as against the petitioner is an abuse of process of the court.
30. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The Magistrate has to carefully scrutinize the materials brought on record, consider the explanation given by the parties and to find out the truthfulness of the allegations or otherwise and then examine if any prima facie case is made out to proceed against the accused. The court below has failed to apply this test before taking cognizance of the offences alleged against the petitioner.
31. In the circumstances, I am of the view that this is a case where petitioner has made out a case for interference and to set aside the impugned order so far as the petitioner is concerned. In the result, this petition is allowed. The impugned order is set aside so far as the petitioner is concerned.
JUDGE akd