J P Prakash S O. Puttaswamyshetty vs Karnataka Lokayukta on 20 March, 2015

Karnataka High CourtJ P Prakash S/O. Puttaswamyshetty vs Karnataka Lokayukta on 20 March, 2015Author: Rathnakala 1

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 20TH DAY OF MARCH, 2015

BEFORE

THE HON'BLE MRS. JUSTICE RATHNAKALA

CRIMINAL PETITION NO. 11290/2012

BETWEEN:

J. P. PRAKASHS/O. PUTTASWAMYSHETTYAGE: 42 YEARS,OCC: MOTOR VEHICLE INSPECTORRTO OFFICE, CHIKKABALLAPUR ... PETITIONER

(BY SRI : SHANKAR HEGDE, ADVOCATE)

AND :

KARNATAKA LOKAYUKTAR/BY THE INVESTIGATING OFFICERLOKAYUKTA POLCE STATION,BELLARY. ... RESPONDENT

(BY SRI MALLIKARJUNASWAMY HIREMATH,STANDING COUNSEL FOR LOKAYUKTHA)

THIS CRIMINAL PETITION IS FILED U/SEC.482 OFCR.P.C. SEEKING TO CALL FOR ENTIRE RECORDSFROM THE INVESTIGATING OFFICER KARNATAKA 2

LOKAYUKTA, BELLARY, I.E., DY.SUPERINTENDENT OFPOLICE, KARNATAKA LOKAYUKTA, BELLARY INCRIME NO.10/2009 AND QUASH F.I.R. BEARING K.L.A.BELLARY P.S. CRIME NO.10/2009 (ANNEXURE-A) AND

J P Prakash S/O. Puttaswamyshetty vs Karnataka Lokayukta on 20 March, 2015

Indian Kanoon - http://indiankanoon.org/doc/112042740/ 1

PANCHANAMA DATED 30-12-2009 (ANNEXURE-B)PENDING ON THE FILE OF SPL.JUDGE, PRINCIPALDISTRICT & SESSIONS JUDGE, BELLARY.

THIS PETITION HAVING BEEN HEARD ANDRESERVED FOR ORDERS AND COMING ON FORPRONOUNCEMENT OF ORDERS THIS DAY, THECOURT MADE THE FOLLOWING:

ORDER

This petition is filed seeking to quash the F.I.R. registered against the petitioner herein byKarnataka Lokayuktha, Bellary police station in Lok. Crime No.10/2009. As the facts unfurl, thePolice Inspector of respondent Lokayuktha on receipt of a credible information on 30.12.2009during evening hours about the untoward conduct of Motor Vehicle Inspectors at Hagari R.T.O.check post in stopping the vehicles passing through the check post and taking illegal gratificationfrom the drivers under demand etc., went to the spot along with the panchas and the staff at 5.00a.m. They noticed two home guards stopping the lorries passing through the check posts andinsisting the inmates of the vehicles to show the documents to the official in the check post.Accordingly, drivers and cleaners of the lorry were alighting from the vehicles and running to thecheck post with their documents: after talking to the officials inside the check post they were givingmoney to the officials. The Investigating Officer, on inquiry with the three drivers of the lorries wasinformed that they had paid bribe of Rs.400/-, Rs.500/- and Rs.600/- respectively to the privatepersons in the check posts, but no receipt was given to them. Those drivers/cleaners were brought tothe check post and they showed the Inspector of Motor Vehicle and three private persons, who hadreceived money from them. The private persons, on inquiry, further revealed that the money is kepton the cot as per the instruction of the Motor Vehicle Inspector at the instruction of the P.I. theMotor Vehicle Inspector produced the currency notes from the cot, documents and cash ofRs.46,920/- were seized. The amount of Rs.46,920/- is the amount depicted in various receipts. Thewritten explanation of the Motor Vehicle Inspector / petitioner herein and the drivers and cleanerswas recorded The P.I. was informed that no register was maintained to declare the personal cash.The penalty amount of Rs.46,920/- collected under the receipt was handed over to AssistantRegional Transport Officer and was remitted to the Government. From search of the room in whichthe petitioner was staying, from underneath the cot additional amount of Rs.6,987/- was traced,mahazar was drawn, the P.I. returned to the police station and registered the case. Afterinvestigation, he has filed 'C' report.

2. Learned counsel for the petitioner submits that after failing to collect any incriminating evidenceagainst the petitioner the respondent - Lokayuktha has filed 'C' report, but that by itself is notsufficient for him to get exonerated from the allegations made against him in the F.I.R. He is deniedtimely promotion under the pretext that he has not been fully exonerated of the allegation, but only'C' report is filed. There is every possibility that at a future point of time, the F.I.R. may be revokedand he may be prosecuted. Since his juniors have been promoted, that has resulted in mis-carriageof justice. The very act of the P.I. in proceeding to the check post without registering a case toconduct investigation on the basis of the so called credible information received by him in respect ofa cognizable offence not in accordance with the procedure contemplated under Section 154(1) of



Cr.P.C., has no legal sanctity in view of the various judicial pronouncements of this Court (Crl.P.No.10616/2013 D.D. 23.08.2013 K. Yerriswamy vs. State of Karnataka, Lokayuktha, Bellary ; Crl.P.No.15941/2012 c/w. Crl.P. No.15852/2012 D.D. 05.02.2013 Sri Girishchandra and Another vs. TheState by Lokayuktha Police, Yadgir (D.B.); Crl.P. No.1001/2013 D.D. 09.04.2013 Sri K. AshwathReddy and Another vs. Karnataka Lokayuktha Police, Police Wing, City Division, Bangalore ; Crl.P.No.3213/2012 c/w. Crl.P. Nos.2142, 2877, 2910 and 2942 of 2012 D.D. 03.09.2012 -

L.Shankaramurthy, N.A. Ramesh, B.H. Shankare Gowda, S. Dinesh, Smt. H. Jayamma and Anothervs. The State by Lokayuktha Police, City Division, Bangalore Urban Division, Bangalore ; Crl.P.No.10442/2013 D.D. 18.03.2013 Somashekhrappa vs. The Karnataka Lokayukta, Belgaum ; Crl.P.No.11477/2011 D.D. 26.03.2013 Shri C. Hemanth Kumar vs. Karnataka Lokayuktha, Hospet, BellaryDistrict). When the Lokayuktha challenged Crl.P. No.2142/2012 (N.A. Ramesh's case) judgment ofthis Court in Special Leave Petition (Criminal) No.3508/2013, it was considered along with bunch ofcases and was rejected.

3. Yet in another case reported in 2012 SCW 3323 in the case of Samaj Parivartana Samudaya andOthers vs. State of Karnataka and Others, it is held that machinery of criminal investigation is setinto motion by registration of FIR by the specified police officer of the jurisdictional police station orotherwise and the police officer can proceed to investigate the case only after registration of the caseas required by Section 154 of Cr.P.C. In the case of State of Haryana and Others v. C.H. Bhajan Laland Others (AIR 1992 SC 604); the Apex Court has elaborated the requirement of registration of thecase by an officer in charge of the Station House whenever a communication is received and then toproceed for investigation. In that view of the matter, it is amply clear that it is the mandate of lawthat I.O. shall register a case before proceeding for the investigation on receipt of communication.Wherefore, the F.I.R. as long as is not quashed, is an obstacle in his career and liable to be quashed,otherwise he will be subjected to departmental inquiry only on the basis of the F.I.R. andpanchanama in question.

4. Learned Standing Counsel for Lokayuktha in reply submits that since 'C' report is filed, thepetitioner cannot have any grievance about the registration of the FIR. It is not the case ofLokayuktha that a case is registered on false information, but for want of evidence the case is closedwith 'C' report. That does not mean that the petitioner is given a clean chit. He was found to be inpossession of excess money, disproportionate to the cash amount collected under receipts. Hisexplanation, if any, is liable to be examined by his Disciplinary Authority. He wants to wriggle out ofthe departmental inquiry which is initiated against him, under the guise of seeking quashing of FIRand seizure mahazar.

5. With regard to the legality of the complaint registered preceding seizure mahazar the submissionof learned Standing Counsel for Lokayuktha is, the judgments of this Court declaring FIRsregistered subsequent to seizure mahazar, as illegal were passed prior to the judgment of the ApexCourt in Lalita Kumari vs. Government of Uttar Pradesh and Others, reported in (2014) 2 SupremeCourt Cases 1. Now the Apex Court dismissed the Special Leave Petitions filed by Lokayukthachallenging the judgment of this Court quashing such FIRs. As per the Lalita Kumari's case it ispermissible for the I.O., if the information received by him does not disclose a cognizable offence,



but indicates the necessity for an inquiry, to conduct a preliminary inquiry to ascertain whethercognizable offence is disclosed or not.

6. Learned Standing Counsel for Lokayuktha further adds that in the case on hand the I.O. havingreceived the information recorded the gist of information in his case diary and proceeded to thespot. Without entering into the premises he could not have ascertained about the illegal transactionsgoing on in the check post. Having seen the accused indulging in demanding and receiving the bribeamount, he could not have waited to draft a suo motu complaint, return to his office, register thecase and make effort to catch hold of the offenders red handed. Once he determines to seize the cashamount believed to be the bribe money, Section 100 of Cr.P.C. comes into play. Sub-section (4) ofSection 100 of Cr.P.C. contemplates that the search shall be conducted in the presence of two ormore independent and respectable inhabitants of the locality. Having foreseen the exigencies thatmay arise, he has proceeded to the spot along with the panch witnesses. After ascertaining thepassing of the illegal gratification from the driver/cleaners of the check post, he has seized themoney and the explanation offered by the accused was not satisfactory. That is how the case inrespect of the offence under Sections 7, 8, 13, (1)(d) read with Section 13 (2) of the P.C. Act came tobe registered. Since the drivers who had paid the bribe amount did not assist for furtherinvestigation, it was inevitable for the I.O. to submit 'C' report. As per Karnataka Police Manual finalreports case in respect of undetected cases are commonly referred to as 'C' Final report.

7. The learned Standing Counsel further persuades this aspect of seizure mahazar prior toregistration of the case as a part of preliminary inquiry on the source of a reportable judgment of theDivision Bench of the High Court of Judicature at Bombay, Bench at Aurangabad, distinguishing thecase of our High Court in Crl.P. No.3213/2012 and connected cases D.D. 03.09.2012, the seizuremahazar conducted prior to registration of the case has observed at para 9 as follows -

9. When a complainant lodges a complaint it should contain narration of all theevents that constitute the offence under section 7 of the Act. As far as demand andagreement of illegal gratification is concerned, the complainant would vouch for it.When it comes to proving acceptance of such gratification, the complainant andshadow panch would vouch for it. In view of these necessary requirements to provean offnce under section 7 of the Act, the First Information Report must contain entirenarration, and the entire narration is possible only if earlier a trap is laid and it issuccessful. The pre-trap panchanama and post-trap panchanama are merelyformalities to give credence to the allegation. What is important in evidence that isgiven in such case is substantive evidence of the complainant and shadow panch. So,the formalities that are undertaken during the preliminary inquiry are merely stepsthat are required to be followed before lodging a complaint. In a way all that takesplace prior to registration of offence under Section 7 of the Prevention of CorruptionAct is more or less part of the original complainant's narration. As said above, if suchnarration constituted an offence, it is only then an offence is registered."

8. Further submission of learned Standing Counsel for Lokayuktha is that, the Apex court in the caseof State of Haryana And Others vs. Bhajan Lal And Others, 1992 Supp (1) SCC 335, has enumerated



the circumstances under which Section 482 of Cr.P.C. can be invoked. The case on hand does notqualify for invoking the extraordinary jurisdiction of this Court in the light of the Bhajan Lal's case(supra), the petition is liable to be rejected.

9. In the light of the above submissions, the sole point that arises for my consideration is -

"Whether there are valid grounds to quash the FIR, seizure mahazar conducted priorto registration of the case?"

10. This is the second petition under Section 482 of Cr.P.C.

filed by this petitioner. His earlier petition filed at the stage of investigation came to be disposedreserving right to urge all the grounds to seek discharge before the trial Court. But, before reachingthe stage of urging for discharge 'C' final report is filed and he is before this Court for the secondtime probably for the reason, departmental inquiry is initiated against him on the basis ofincriminating material collected by the I.O. during seizure mahazar i.e., from the underneath of hiscot Rs.6,987/- excess money is recovered which did not tally with the receipts passed in respect ofthe money collected for the Government. He is not disowning this cash amount, but has his ownexplanation about its possession, but legitamacy or otherwise of this cash amount is beyond thepurview of this petition though jurisdiction under Section 482 of Cr.P.C. is of wider amplitude.Without a full- fledged inquiry his explanation about the excess money seized from his possessioncannot be judged either as legal or illegal.

11. In Lalita Kumari's case (supra) maximum of seven days have been accorded for the InvestigatingOfficers of corruption case to take on the exercise of preliminary inquiry before registering casedepending on facts and circumstances of the case to ascertain the truthfulness of the complaintbefore its registration. But the scope and extent of such preliminary inquiry is not enumerated in thesaid judgment.

In the above noted judgment of the Division Bench, High Court of Judicature at Bombay, atAurangabad, it was observed in respect of trap mahazar held in illegal gratification cases in betweenthe period of receipt of the complaint by the I.O. and registration of FIR that, "the procedure that isfollowed prior to registration of the case in these corruption cases is a part of preliminary inquiry."

12. It is the eloquent persuasion of the Special Public Prosecutor on the Court that the searchmahazar conducted prior to registration of the FIR is legal and admissible in evidence, being in thenature of preliminary inquiry contemplated in Lalita Kumari's case. But in my considered opinionsaid proposition cannot be applied in the case on hand for the reason that the High Court ofJudicature at Bombay Bench at Aurangabad was dealing with bunch of cases, which were all definitecases of traps, catching the accused red handed, arrest and subsequent registration of the case. inthe case on hand, basically there was no complaint at all. The information received by the I.O. wasabout on going bribe transaction in the RTO check post. It is not palatable to accept the contentionof the learned Special Public Prosecutor that the I.O. had no other go except to hurry to the spotwith panch witnesses, immediately on receipt of the information for conducting preliminary inquiry



and thereby had to conduct the seizure mahazar by following the mandatory provision of Section100 of Cr.P.C. As could be seen from the record, the I.O. received information on 29.12.2009procured the official pancha witnesses on the same evening and raided the check post at the weehours of 30.12.2009. Unhesitatingly, the view taken by our High Court in N.A. Ramesh vs. State ofKarnataka and also other cases, noted supra, which is declined to be interfered by the Apex Courtholds the field and the FIR registered subsequent to seizure mahazar in violation of mandatoryprovisions of Section 154 of Cr.P.C. is vitiated and illegal.

13. Having held so, the next question is whether the illegality in registering the FIR is sufficient toquash the FIR and the seizure mahazar under the jurisdiction of Section 482 of Cr.P.C.? andwhether such special circumstance has arisen even though the case has ended up in 'C final reportwithout prosecuting the petitioner..

14. In Bhajan Lal's case (supra), seven categories of cases are listed by way of illustration, whereinthe extraordinary power under Article 226 of the Constitution of India or the inherent power, underSection 482 of Cr.P.C. as below -

(1) Where the allegations made in the First Information Report or the complaint,even if they are taken at their face value and accepted in their entirety do not primafacie constitute any offence or make out a case against the accused;

(2) Where the allegations in the First Information Report and other materials, if any, accompanyingthe F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers underSection 156(1) of the Code except under an order of a Magistrate within the purview of Section155(2) of the Code;

(3) Where the uncontroverted allegations made in the FIR or 'complaint and the evidence collectedin support of the same do not disclose the commission of any offence and make out a case againstthe accused; (4) Where, the allegations in the FIR do not constitute a cognizable offence butconstitute only a non-cognizable offence, no investigation is permitted by a police officer without anorder of a Magistrate as contemplated under Section 155(2) of the Code;

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable onthe basis of which no prudent person can ever reach a just conclusion that there is sufficient groundfor proceeding against the accused;

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or theconcerned Act (under which a criminal proceeding is instituted) to the institution and continuanceof the proceedings and/or where there is a specific provision in the Code or the concerned Act,providing efficacious redress for the grievance of the aggrieved party;

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedingis maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with aview to spite him due to private and personal grudge.



15. Patently the case on hand does not fall under any the category. Though the I.O. failed to collectevidence against the petitioner, which is sufficient to make out the offences punishable underSections 7, 8, 13 (1) (d) and 13(2) of P.C. Act, however has recovered some disproportionate cashamount in pursuance of which, a departmental inquiry is said to have been initiated. As noticed inthe preceding para, this amount is not disowned by the petitioner and he has his explanation aboutits possession. Quashing the FIR and seizure mahazar in the present circumstances is nothing butfrustration of the departmental inquiry which would amount to fresh abuse of process of law. Thepetitioner is yet to prove his lawful possession of excess money before the Inquiry Authority. In thatview of the matter, and also in the light of the circumstances enumerated in Bhajan Lal's case, I amof the considered opinion that it is not a fit case to quash the FIR and the seizure mahazar inquestion under the extra ordinary jurisdiction under Section 482 of Cr.P.C, accordingly, the petitionis dismissed.

Sd/-

JUDGE hnm



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J P Prakash S O. Puttaswamyshetty vs Karnataka Lokayukta on 20 March, 2015