IN THE HiGH COURT OF KARNATAKA CIRCUiT BENCH AT DHARWAD DATED THIS THE 23rd DAY OF MARCH, 2011 BEFORE THE HON’BLE MR. JUSTICE V. JAGANNATHAN CRIMINAL PETITION NO.7033/2010 BETWEEN: Sri. T. B. Basappa Son of late T.B. Bheemappa Aged 61 years Retired Sub-Inspector of Police R/o. Jam Colony, Hospet Hospet Taluk Bellarv District. PETITIONER (By Sri. S. S. Koti, Adv. for Sri. C. G. Sheelvant, Adv.) AND: Laxminaravana S/o. Aswathappa Aged 44 years, Maruthi Finance Beemappa Naika Road Chennakeshavapura Resident of Chitradurga Chitradurga District. (Deleted vide C/o. dt. 10.03.2010) 1. The State of Karnataka Represented by Special Lokayyuktha Bellary 2. Laxminaravana S/o. Aswathappa Aged 44 years, Maruthi Finance Beemappa Naika Road Chennakeshavapura Resident of Chitradurga Chitradurga District. (Impleaded as per Court order dated 14.12.2010) 3. 5. P. Chitradurga (Impleaded as per Court order dated 14.12.2010) RESPONDENTS (By Sri. M. B. Gundawade, Loka ukta Adv. for Ri Sri. R. D. Desai, Adv. for R2 Sri. Vinavak Kulkarni, HCGP for R3) THIS CRIMINAL PETITION IS FILED U/S 482 CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE SESSIONS COURT IN SPL. C.NO.60/08, DATED 4.9.2008 AND FURTHER PROCEEDINGS PENDING ON THE FILE OF THE PRL. SESSIONS JUDGE, COURT AT BELLARY AND ETC. THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING: 3 4. ORDER This criminal petition under Section 482 of Cr.P.C is directed against the order of the learned Principal Sessions Judge, Bellary in C.R.No.2/2001 taking cognizance of the offences punishable under Section 7, 13(1) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the PC Act’ for short) against the petitioner herein. 2. The brief facts are that, the second respondent herein filed a private complaint under Section 200 of the Cr.P.C against the petitioner herein and one Jadiyappa. The complaint allegations were that, when the complainant was proceeding towards the Stadium at Chitradurga on 21.03.2001 at around 6.30 a.m, some police caine in a Trax Vehicle and took the complainant towards Hospet road and in the said vehicle, apart two police persons, there was one by name Madhu and said •0 4 Madhu used to take a loan from the complainant and the same Madhu gave the information that in note doubling case at Hospet, two persons ran away and one of them was the present complainant. Thereaftervards, the police officer namely, the Sub-Inspector i.e., the petitioner herein who was in the uniform took the complainant to Chitradurga police station and asked the complainant to give Rs. 1,50,000/-, failing which a case would be registered against the complainant. The complainant was forced to arrange for money and the complainant could arrange for Rs.20,000/- and the Head Constable Jadivappa also demanded Rs.2,000/- out of this Rs.20,000/-. The present petitioner being the Sub-Inspector received Rs.20,000/- and again has asked for the balance of Rs.1,30,000/- for relieving the complainant from the case. According to the complainant, the petitioner also threatened the complainant to bring Rs.65,000/- within one week and if he does so, then the case against the complainant would be dropped by filing ‘B’ report, otherwise, the case of dacoitv would be registered against the complainant. The complainant also said that the petitioner telephoned to the complainant and asked for Rs.50,000/- and as the complainant was not willing, he approached the Lokavukta and lodged the complaint which led the case being registered in Crime No.2/2001 by the Lokayukta Police, Bellarv. However, the trap was not successful because the petitioner had already smelt the rat. Thereafterwards, the Lokavukta Investigating Officer filed ‘C’ report indicating that the case should be treated as an undetected case. The complainant not being satisfied with the ‘C’ report filed, then filed a protest petition on 18.01.2002 and on the same day a private complaint was also filed under Section 200 of Cr.P.C 6 3. The learned trial Judge of the Court below, after considering the protest petition, passed an order on 19.1 1.2002 directing further investigation by the Dy.S.P., District Crime Recorder, Bellary (‘DCRB’ for short). Pursuant thereto, the DCRB filed its report to the effect that the petitioner herein tried to receive bribe of Rs.50,000/- from the complainant to help the complainant in the Criminal case in Crime No.171/2001 of Chittawadigi Police and therefore, the learned trial Judge after taking note of the report filed, took cognizance acting under section 190 of the Cr.P.C and directed issuance of summons to the petitioner in respect of the offences punishable under Section 7, 13(1) (d) read with Section 13(2) of the PC Act. 4. The learned Counsel Sri. C. 0. Sheelvant assisted by the learned Counsel S. S. Koti contended that the entire procedure followed by the learned Sessions Judge is contrary to the provisions of Cr.P.C 7 and the learned Judge could not have directed the DCRB to investigate and file the report, as the Court was a Special Court constituted to deal with Lokayukta cases and even as per the notification issued by the Government, only the Office of the Deputy Superintendent of Police, Lokavukta, Bellary could have taken steps to investigate the matter as their jurisdiction covers Bellary and Raichur districts. Therefore, the Court below could not have referred the matter for investigation to Dy.S.P., DCRB and the procedure followed is contrary to the provisions of Section 156 of Cr.P.C and Section 17 of the PC Act. 5. The second contention put forward is that the Lokayukta Police themselves have declined to grant sanction to prosecute the petitioner, as they found there was no material to proceed against the petitioner and that apart, the complainant himself made a request to the Lokavukta not to proceed with the matter further, 8 because the complainant himself got back Rs.50,000/-, which he had given to the Lokayukta police and in view of the said conduct on the part of the complainant, that too in the presence of the panchas, the question of once again considering the private complaint under Section 200 of Cr.P.C and the protest petition filed subsequent to filing of the ‘C’ report does not arise and all these steps taken by the complainant is nothing but abuse of process of law. 6. Therefore, it is contended that the learned trial Judge could not have acted upon the report of the DCRB, not only because the said Dy.S.P. had no jurisdiction to investigate in the matter which is under the Lokavukta Act, but also when the complainant himself wanted put an end to the entire affair by giving up action against the petitioner and having received back Rs.50,000/- from the Lokavukta police, the Court 9 below should not have directed issuance of summons to the petitioner. 7. The above submissions are sought to be supported by relying on the decisions reported in the following cases: i. Basappa Gadigeppa Patted arid Another Vs. State of Karnataka reported in ILR 2002 KAR 830. ii. C. M. Iqbal Vs. Vijaya alias Geetha reported in ILR 1989 KAR 3432. iii. State of Karnataka Vs. Sri. Thamrnaiah & Others reported in ILR 1999 KAR 1012. iv. N. Rajachar arid Others Vs. Sri. Kodandarama arid Others reported in ILR 2002 KAR 2909. v. State of Karnataka Vs. B. Narayanci Reddy reported in 2002(2) Kar.L.J. 80. vi. P. R. Venugopal Vs. G. P. Rajashekar arid Others reported in ILR 2003 KAR 801. vii. Vidya Prakash Vs. Union of India reported in AIR 1988 SC 708. 1 0 viii. Banath Jha Vs. Sita Ram reported in 2008 SCC (CR) - 3 - 428. ix. V. B. Raikar Vs. State of Karnataka reported in 2004 (1) KCCR 231. x. Central Bureau of Investigation Vs. State of Rajasthan and Another reported in (2001) 3 SCC 333. xi. State of A.P. Vs. P. V. Pavithran reported in (1990) 2 SCC 340. Therefore, relying on the aforesaid decisions, the learned Counsel Sri. S. S. Koti, sought for quashing of further proceedings pending before the Court below. 8. On the other hand, submission made by Sri. Gundawade for 1st respondent-Lokayukta is that the Lokayukta stands by its report given earlier and the learned Counsel contended that the Lokavukta Police themselves have declined to give sanction to prosecute the accused and following the ‘C’ report being filed, the learned trial Judge has directed the investigation to be done by the DCRB and no objection was taken by the petitioner when the matter was referred to investigation by the said agency and only after the cognizance was taken and summons were ordered, that the petitioner came up before this Court challenging the order passed b the trial Court directing the investigation by the DCRB. However, it is his submission that, insofar as the petitioner demanding further sum of Rs.65,000/- is concerned, there is material against the petitioner following the report submitted by DCRB. The learned Counsel also submitted that it is not in dispute that the departmental enquiry against the petitioner ended in the petitioner being exonerated. The further submission made is that the cognizance was taken by Special Judge on the complaint filed under Section 200 of Cr.P.C on the basis of the original complaint filed before the Lokayukta and not on the report of the DCRB. 12 9. The learned Counsel Sri. R. D. Desai for the 2nd respondent-complainant submitted at the outset that, this Court under Section 482 of Cr.P.C cannot interfere in the matter and the trial Court has taken cognizance and ordered issuance of summons only after satisfying that there is material to go ahead against the petitioner and the said decision, therefore, is not liable to be interfered with under Section 482 of Cr.P.C. 10. It is then submitted by the learned Counsel that even if the investigation was conducted by the DCRB, no infirmity can be found in the investigation in view of the provision contained in Section 156 (2) of Cr.P.C, which provides that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate. 1-’ I ) 1 1. It is also argued by the learned Counsel Sri. R. D. Desai that, the Court had directed the investigation by its order dated 19.11.2002 and till the cognizance was taken, the petitioner did not challenge the order dated 19.11.2002 and the learned Judge by taking note of the provision contained in Section 190 of Cr.P.C has ordered issuance of summons to the petitioner. Therefore, when the report filed by the DCRB makes out a prima facie case against the petitioner, this Court cannot under Section 482 of Cr.P.C interfere with the trial Court’s decision to proceed with the matter. In respect of the above submission, the learned Counsel relied on the Apex Court decision reported in (2008) 4 SCC 471 in the case of Central Bureau of Investigation Vs. K. M. Sharan. 12. Having thus heard both sides, the following points arise for consideration. 14 i. Whether the trial Court was justified in ordering investigation by the DCRB through its Deputy Superintendent and whether such an action on the part of the trial Court can to said to be in accordance with law? ii. Whether the petitioner has made out a case of abuse of process of law by the complainant? 13. POINT NO.1: It is not in dispute that the original complaint was lodged by the 21d respondent- complainant before the Lokavukta Police, which led the case being registered in Crime No.2/2001. It is also an admitted fact that the Lokayukta investigation led to the sanction being not accorded to prosecute the petitioner and secondly ‘C’ report was filed to the effect that case should be treated as one falling under undetected case. In other wards, the Lokavukta had put an end to the whole matter by its report filed and the trial Court also has taken note of the said aspect of the matter, It is 15 thereafterwards that the complainant filed a private complaint under Section 200 of Cr.P.C. and also a protest petition on the same day and the learned trial Judge by its order dated 19. 11.2002 referred the matter for investigation by Dv.S.P., DCRB. The point is whether the Court could have referred the matter for investigation to the DCRB. 14. Section 17 of the Act deals with the provision of law in respect of the persons authorised to investigate the cases in respect of the offences punishable under the Act and the said Section 17 reads as under: Section 1 7 Persons authorised to investigate Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank, - (a) in the case of the Delhi Special Police Establishment, of an Inspector of Police: (b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in 16 any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974>, of an Assistant Commissioner of Police; (c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant: Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant: 17 Provided further that an offence referred to in clause (e) of sub-section (1) of section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. 15. This Court in the case of Basappa Gadigeppa Patted and Another Vs. State of Karnataka(supra) has held that, in respect of investigation conducted under the Act, the Government has issued notification under Section 17 authorising the Inspectors of Police as the competent authorities to conduct the investigation, which includes the acts like receipt of complaint, reissuing of FIR, carrying out further investigation, actual filing of the final report before the Court. This Court has further held that notification dated 26.05. 1986 declares the office of the Inspectors of Police and other superior officers as the Lokavukta Police Stations and their respective jurisdictional area of operation is also notified. The Court therefore held that 18 the investigation under the PC Act is wholly different from the investigation conducted under Section 9 of the Karnataka Lokavukta Act. In the very same decision, this Court has also reproduced the aforesaid Government Notification dated 26.05.1986 and subsequent notifications as well. In respect of Bellary is concerned, at Si. No. 13 in the table of said notification, which is mentioned thus: 13. Office of the Deputy Bellary & Raichur Superintendent of Police District. Office of the Lokayukta Bellary. 16. It is therefore, clear from the aforesaid notification that the respective Dv.S.Ps. of the office of Lokavukta is the authority to investigate in respect of the local areas of Bellarv and Raichur District. It is further, clear from the aforesaid notification that in respect of the cases falling under the PC Act, the special Judge notified to deal with the cases under the PC Act is 19 the Principal and Sessions Judge of the respective District and on this, there are no two opinions and the learned Counsel for both the parties also accept the said position. Keeping that in view, we have to take a look at Section 156 of Cr.P.C and the said section reads as under: 156. Police officer’s power to investigate cognizable case — (1) Any Officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. 20 (3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned. 17. It is therefore clear on plain reading of sub Section (1) of section 156 of Cr.P.C that, in respect of the local area, namely Bellary, over which the Special Judge has got jurisdiction, the Officer who has power to enquire is the Officer in-charge of the Police Station. The Police Station in the instant case will have to be taken as the office of the Deputy Superintendent of Police, Office of Lokavukta, Bellarv. Therefore, the Dy.S.P. of the office of Lokayukta, Bellarv and such of the offices attached to the office of the Lokayukta, Bellarv alone can have the power to enquire into the cases falling under the PC Act and none other Police Officer. This view is further strengthened by the decision referred to by the learned Counsel for the petitioner. The Apex Court in the case of Central 21 Bureau of Investigation Vs. State of Rajasthan and Another (supra) has observed that the Magistrate under Section 156(3) of Cr.P.C has no power to direct CBI to investigate into any offence. 18. The Court went on to observe further that, Section 156(3) of Cr.P.C confers power on Magistrate to order on “Officer in charge of a police station” to investigate any cognizable case over which the Magistrate has jurisdiction. If the said decision is applied to the case on hand, the Officer in-charge of the police station should, in the present case, will have to be the Officer calling under Sl.No. 13 of the table of the Government notification and such other officers who are empowered under the said notification. As far as jurisdiction aspect is concerned, the jurisdiction is with the Special Judge under Lokavukta Act and it covers the areas of Bellary and Raichur in respect of the offences under the PC Act. 2•••. 19. In another decision touching on the same point, the learned Single Judge of this Court in the case of C. M. lqbal Vs. Vijava alias Geetha (supra) has held that referring the complaint to the Superintendent of police, CBI for investigation was improper and illegal and could not have been dealt under Section 156(3) of Cr.P.C. 20. In the case of State of Karnataka Vs. Sri. Thammaiah & Others (supra), the question that arose was whether the Magistrate has got the power to direct investigation by the COD and this Court held that the Magistrate has neither the power nor the authority, nor the jurisdiction to direct any Police Officer outside his jurisdiction including that of COD or CBI to investigate. 21. In the case of N. Rajachar and Others Vs. Sri. Kodandarama and Others (supra), this Court has held that the Magistrate acting under Section 156(3) L 23 has no power to refer the case for investigation to Central Crime Branch (F and M) and Central Crime Branch. 22. Having thus considered the aforesaid decisions of this Court and also the Apex Court, in the aforesaid cases, particularly, having regard to the notification issued by the Government dated 26.05.1986, the investigation could have been taken up only by the Dy.S.P. of the Office of Lokayukta, Bellary and not by the DCRB. Therefore, the learned trial Judge who was the Special Judge under the PC Act could not have referred the case for investigation to the Dv.S.P. of DCRB, but reference ought to have been to the Lokayukta Police referred to in the notification at Si. NO. 13 of the table. As such, the learned trial Judge erred in referring the investigation to the Police Officer who was not authorised to investigate the case falling under the PC Act, particularly, in the light of the notification issued by the Government dated 26.05.1986. Accordingly 1st point is answered. 23. POINT NO.2: It is the contention of the learned Counsel Sri, S. S. Koti that the complainant has abused the process of law by filing the complaint first before the Lokayukta and the said complaint ended in filing of the ‘C’ report by the Lokayukta police and further the complainant himself has received back the amount of Rs.50,000/-. It is clear from the panchanama conducted by the Lokvukta, which document is produced at Annexure-E to this petition on a plain reading of the said panchanama dated 16.04.2001 that, as the complainant was definite that the accused would not take the amount, the complainant sought for the complaint given by him on 30.03.200 1 to be dropped and no further action be taken on the said complaint. The said panchanama also reveals that the said complaint was taken back by the complainant in the presence of the panchas and he received back Rs.50,000/-. 24. Apart from the Lokayukta itself closing the matter by declining to give the sanction to the accused and having filed the ‘C’ report and further the complainant himself having stated before the Lokayukta in the course of the panchanama held on 16.04.2001, that he no longer wishes to have the complaint proceeded with and having taken back the amount of Rs.50,000/-, one other aspect to be taken note of is the fact of petitioner having been exonerated in the departmental enquiry. When such is the admitted fact, could the investigation be allowed to be continued is the point for consideration. 25. This Court in the case of V. B. Raikar Vs. State of Karnataka (supra) has held that, when the departmental enquiry conducted against the petitioner 26 concluded in favour of the petitioner, after a thorough enquiry, quashing of the proceedings against the petitioner would meet the ends ofjustice. In arriving at this view, this Court took note of the law laid down by the Apex Court in the case reported in 1996 SCC (Cri.) 897, the Apex Court held in the said case that, if the enquiry report did not show any prima fade case and if the enquiry had been concluded, prosecution of the appellant under the PC Act was liable to be quashed. 26. In the instant case, the petitioner was exonerated in the departmental enquiry and the ‘C’ report was also filed by the Lokayukta and further, the complainant himself gave up prosecuting this complaint by accepting the money back, when the panchanama was conducted on 16.04.200 1 and after all these events, if the complainant again wakes up and lodges a private complaint under Section 200 Cr.P.C along with protest petition, it is nothing but an act of abuse of process of k 27 the Court. Notwithstanding the petitioner’s Counsel bringing to the attention of the Court that the complainant himself is an accused in number of cases and in this regard, he referred to the MOB file maintained by the Town Police Station, Chitradurga, in my opinion the very filing of the private complaint along with the protest petition itself will have to be construed as nothing but an act of abuse of process of law. 27. Learned Counsel Sri, S. S. Koti for the petitioner referred in great detail to the scope of interference by this Court under Section 482 of Cr.P,C by referring to the developments of law on this aspect right from 1960 onwards and referred to the leading case of State of Haryana Vs. Bhajan Lal (1992 SC 604 as well as M/s Pepsi Foods Ltd v. Special Judicial Magistrate, AIR 1998 SC 128 and also made reference to the decision of the Apex Court in Mahadev Rao Jiwaji Rao Seindia 1988 SC 709 and contended that the Court 28 also will have to take into consideration any special features in a particular case. 28.