Judgment:
1 ® IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE21t DAY OF OCTOBER, 2014 BEFORE THE HON’BLE MR. JUSTICE ANAND BYRAREDDY CRIMINAL REVISION PETITION No.113 OF2014BETWEEN: …PETITIONER S.B.Mallikarjuna, Son of Late S.Basavannappa, Aged about 57 years, Resident of No.590/A, 15th ‘C’ Main, 15th Cross, 4th Sector, HSR Layout, Bangalore – 560 102. (By Shri. Hegde Shankar Purander, Advocate) AND: The Karnataka Lokayukta, Represented by the Investigating Officer, City Division, Police Wing Karnataka Lokayukta, M.S.Buildings, Bangalore – 560 001. (By Shri. Bahubali A Danewade, Special Public Prosecutor) …RESPONDENT2This Criminal Revision Petition is filed under Section 397 read with 401 of the Code of Criminal Procedure, 1973, praying to set aside the impugned order dated 13.12.2013 pending on the file of XXIII Additional City Civil and Sessions Judge and Special Judge, Bangalore City in Spl.C.C.No.294/2010 produced as Annexure-F. This Criminal Revision Petition having been heard and reserved on 15.09.2014 and coming on for pronouncement of Orders this day, the Court delivered the following:- ORDER
The petitioner, a police inspector, is accused of offences punishable under Sections 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the ‘PC Act’, for brevity). It is claimed that on the basis of information received by the Superintendent of Police, Karnataka Lok Ayuktha, Rural District Bangalore, a source report dated 31.10.2007 was said to have been formulated and a case registered for the offences, as aforesaid. It transpires that the official quarters and the office premises of the petitioner was said to have been subjected to a search. A safe locker of the wife of the petitioner was also said to have been searched. 3 It is stated that the assets of the petitioner for the check period between 1.1.1990 to 3.11.2007 is said to have been reckoned by the prosecution. The basis of the case against the petitioner is summarized thus : - The assets possessed by the petitioner is estimated at: - Estimated expenditure during the period : - Total Rs. 55,86,723/- Rs. 35,52,965/- Rs. 91,39,688/- - the legitimate earnings accounted For: Rs.63,34,604/- - Disproportionate income Rs.28,05,084/- - Percentage 44.28% It transpires that the petitioner had filed detailed submissions with respect to each and every item, which had been overlooked by the Investigating Officer, before the court below, to justify the contention that the same could not be considered as 4 disproportionate to the known sources of income or as being illegitimate wealth. The court below has briefly referred to the said particulars and has held thus : “In the overall circumstances, I have considered the claim made by the accused and also the calculations and details. Having considered the entire materials placed on record and after going through the claim of the accused and the contentions of the prosecution, I am of the sincere view that the accused has not made out grounds for discharging him in the case. …………….etc.” It is the above order, which is the subject matter of challenge in this petition. 2 The learned counsel for the petitioner, in a similar exercise, as was attempted before the court below, seeks to canvass that the assets which are treated as being income or wealth, disproportionate to the known sources of income, is with reference to particular items and with reference to a definite sum of money. When each of these so called questionable items could be reconciled with legitimate and acceptable material documents, which are again capable of verification on a plain perusal, the petitioner being put through the rigmarole of a trial, only for the 5 sake of it, is superfluous and unjust and that it seriously jeopardizes the career of the petitioner. The learned Counsel hence, seeks that the order of the court below be set aside and the petitioner be acquitted. The learned counsel for the petitioner has relied on the following authorities in support of his arguments. In Union of India v. Prafulla Kumar Samal and another, (1979) 3 SCC4 after a review of the case law, it is laid down as follows : “10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case 6 and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence if he was conducting a trial.” In R.S.Nayak v. A.R.Antulay and another, (1986) 2 SCC716 it is stated thus : “43. xxxx xxxx The Code contemplates discharge of the accused by the Court of Sessions under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on police report are dealt with in Section 245. The three sections contain somewhat different provisions in regard to discharge 7 of the accused. Under Section 227, the Trial Judge is required to discharge the accused if he “considers that there is not sufficient ground for proceeding against the accused”. Obligation to discharge the accused under Section 239 arises when “the magistrate considers the charge against the accused to be groundless”. The power to discharge is exercisable under Section 245(1) when “the magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction”. It is a fact that Sections 227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under Section 245, on the other hand, is reached only after the evidence referred to in Section 244 has been taken. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of “prima facie” case has to be applied. In spite of the difference in the language of the three sections, the 8 legal position is that if the Trial court is satisfied that a prima facie case is made out, charge has to be framed.
44. In Mahant Abhey Dass v. Gurdial Singh, AIR1971SC834this Court in a case instituted on complaint applied the prima facie test. In State of Bihar v. Ramesh Singh, AIR1977SC2018, this Court again pointed out that the standard of test and judgment which is to be finally applied before recording a finding regarding guilt or otherwise of the accused, is not to be applied at the stage of deciding the matter under Section 227. It was further observed: (SCC p. 62, para
4) If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion of the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under 9 Section 228 (charge to be framed) and not under Section 227 (of discharge).” In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya and others, (1990)4 SCC76 it is stated as follows, after quoting from the above judgments: “7. xxxx xxxx xxxx From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.” The principles set out hereinabove have been reiterated in several subsequent decisions referred to above . 10 3 The learned counsel appearing for the respondent, on the other hand, while seeking to justify the impugned order seeks to place reliance on the following authorities. In Mohd Akbar Dar and others v. State of Jammu and Kashmir and others, 1981 (Supp)SCC80 it was held thus : “2. The main grievance of the appellants is that the High Court erred in law in not fully considering the effect of the documents produced by the prosecution and the statements recorded under Section 161 Cr.PC before finding that there were sufficient grounds for framing charges against them. A similar criticism was made by the appellants in respect of the judgment of the Special Judge also.
3. We have heard counsel for the appellants and have gone through the judgments of the courts below. Both the trial and the High Court have generally given a brief survey of the evidence sought to be adduced against the appellants. It is true that the High Court has not gone into the details or the pros and cons of the matter. This was obviously because that is not the stage when the Court could enter into meticulous consideration of the evidence and materials. The High Court has clearly observed that after perusing the statement of the witnesses recorded under Section 161, it was unable to find that the charges could be said to be groundless.” 11 In State of M.P. v. S.B.Johari and others, (2000)2 SCC57, the apex court has relied on and referred to the following decisions to cull out the principles: “4. xxxx xxxx It is settled law that at the stage of framing the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross- examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya [(1990) 4 SCC76 1991 SCC (cri) 47]. after considering the provisions of Sections 227 and 228 CrPC, the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do 12 on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh, [(1977) 4 SCC39 1977 SCC (cri) 533]. Union of India v. Prafulla Kumar Samal [(1979) 3 SCC4 1979 SCC (Cri) 609]. and Supdt. and Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC274 1979 SCC (Cri) 1038]. and held thus: (SCC p. 85, para
7) their face value disclose “From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.” 13 In State of Karnataka v. M. Devendrappa and another, (2002) 3 SCC89 it is laid down thus: (para 9 ) “9. xxx xxx xxx The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H.S.Chowdhary, [(1992) 4 SCC305 1993 SCC (Cri) 36: AIR1993SC892, and Raghubir Saran (Dr) v. State of Bihar. [AIR1964SC1 (1964) 1 Cri LJ1 ) It would not be proper for the High Court to analyse the case of the complainant 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. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case 14 where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal.” In State of Tamil Nadu Traffic Inspector of Police vs. N.Suresh Rajan and others, on 6th January, 2014, “……True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post-office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, 15 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. Reference in this connection can be made to a recent decision of this Court in the case of Sheoraj Singh Ahlawat and others vs. State of Uttar Pradesh and another, AIR2013SC52 in which, after analyzing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi), (2008) 2 SCC561 It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be 16 considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.” 4 It is evident from the consistent view as regards the scope of enquiry at the stage considering the question of framing the charges, where the court is required to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused is made out, that there is no rule of universal application which could provide guidance. The decision as to whether the materials placed before the court disclose a grave suspicion, or merely raises a glimmer of suspicion, against the accused – which has not been properly explained, will make the difference in the court being justified in either framing charges or in discharging the accused. A thin line of discretion divides what could be treated as grave suspicion in the mind of the court 17 or what could be termed as mere suspicion. When there are more than one aspects, on which there is debated material available, it is safer to proceed to frame charges and allow the matter to run its course rather than to rule on the merits or demerits of the material, when the said material could form the basis for conviction or acquittal of the accused but only on a closer scrutiny. This is especially so when there is no rule of universal application to guide the court in deciding one way or the other. In the instant case on hand, though the counsel for the petitioner would seek to demonstrate with great conviction that each and every single item that is taken into consideration by the investigating authority, or conversely those items which have been overlooked, in drawing up the final report , can be dissected on a prima facie test, in order to enable the petitioner to seek a discharge – this is a opinion of the petitioner and his counsel. That view is not accepted by the trial court. Given the degree of controversy over the material that is referred to and addressed by the petitioner and the prosecution, neither does this court share that view. 18 Accordingly, the petition is dismissed. Sd/- JUDGE nv*