- 1 - R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE26h DAY OF FEBRUARY2021BEFORE THE HON’BLE MR. JUSTICE P. KRISHNA BHAT CRL.P. NO.102366/2017 BETWEEN: SRI.M.CHIDANANDA RAO, AGED ABOUT55YEARS, S/O. SRI GOVINDA RAO, PRESENTLY WORKING AS INSPECTOR OF POLICE, ATTCHED TO THE SPECIAL BRANCH, OFFICE OF THE DIRECTOR GENERAL OF POLICE, NRUPATHUNGA ROAD, BANGALORE. ...PETITIONER (BY SRI. ASHOK R KALYANSHETTY, ADV.) AND THE STATE OF KARNATAKA BY THE POLICE INSPECTOR, KARNATAKA LOKAYUKTHA, HOSPET, BALLARU DISTRICT. REP. BY SPL. P.P.HIGH COURT, DHARWAD. …RESPONDENT (BY SRI. SANTOSH B.MALGOUDAR, ADV.) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., SEEKING TO CALL FOR RECORDS IN SPL. CASE No.5004 OF2017PRESENTLY PENDING ON THE FILE OF THE III ADDL. DISTRICT AND SESSIONS JUDGE, BALLARY, SITTING AT HOSPET AND FURTHER BE PELASED TO REVERSE AND TO SET ASIDE THE - 2 - ORDER
DATED0307.2017 PASSED IN THE CASE DIRECTING REGISTRATION OF A CASE AGAINST THE PETITIONER FOR AN OFFENCE WHICH IS MADE PENAL UNDER SECTION7READ WITH SECTION132) OF THE PREVENTION OF CORRUPTION ACT, 1988 AND ORDER
ING PROCESS AGAINST THE PETITIONER FOR HIS APPEARANCE IN THE CASE BEFORE THE COURT AND FURTHER BE PLEASED TO QUASH THE PROCEEDINGS THAT ARE BEING RECORDED IN THE CASE AS AGAINST THE PETITIONER. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER
S ON1802.2021 COMING ON FOR PRONOUNCEMENT OF ORDER
S, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The petitioner who is accused No.1 is seeking quashing of the entire proceedings in S.C.No.5004/2017 pending on the file of the learned III Additional District and Sessions Judge, Ballary, sitting at Hospet, for offences punishable under Sections 7 r/w 13(2) of the Prevention of Corruption Act, 1988.
2. The brief facts are that, on the complaint of CW1, a case came to be registered in Crime No.2/2015 by the Karnataka Lokayukta Police Station, Hospet, against the present petitioner and a civil police constable on 3/9/2015. The allegation is that on 2/9/2015 at about 8.45 pm, both the accused had stopped the lorry bearing registration No.KA-22/C- - 3 - 2154 driven by CW1 which was carrying sponge iron pellets on the ground that the lorry was overloaded, i.e. carrying freight beyond the permitted weight. The further allegation is that the present petitioner being the police inspector had abused the driver and had demanded an illegal gratification of Rs.15,000/- for releasing the truck. It is also alleged that thereafter, the accused had taken the lorry to a weighbridge and got it weighed and the lorry was taken to the R.T.O. office and it was left there and the accused-petitioner herein and another accused had harassed CW1, CW4 and CW6. Accordingly, a complaint came to be registered. Lokayukta Police held the investigation and filed a charge sheet for offences punishable under Sections 7 r/w 13(2) of the Prevention of Corruption Act, 1988. There is an allegation in the complaint that, accused No.2 had taken the mobile phone of CW1 and had spoken to CW8 and during the said conversation, accused No.2 was standing near the jeep and the present petitioner was sitting inside the jeep and the present petitioner had used accused No.2 to make a demand for illicit gratification for releasing the lorry.-. 4 - 3. The learned counsel for the petitioner submits that the entire complaint is a malafide one in as much as admittedly CW1 was driving the lorry which was carrying freight more than the permitted weight and when the present petitioner and accused No.2 stopped the vehicle, CW1, CW4 and CW6 started quarrelling with them and in the said process, some delay took place in taking the lorry to the weighbridge for taking the weight of the freight carried in the lorry. He further submits that upon weighing of the lorry in the weighbridge, it was found overloaded and accordingly, a fine was imposed and CW1, CW4 and CW6 had paid the same, thereby admitting that they had committed an offence punishable under the Motor Vehicles Act, 1988. It is the further submission that due to vengeance, they had filed a false complaint against the present petitioner and accused No.2 and on such complaint, if charge sheet is filed and petitioner is made to face the trial, it will amount to abuse of process of law and therefore, charge sheet should be quashed. The learned counsel has also contended that the trial Court has not applied its judicial mind in taking cognizance for the offences. It was - 5 - also contended by him that the basic ingredients of the offence under Sections 7 r/w 13(2) of the Prevention of Corruption Act, 1988, has not been made out. He further submitted that admittedly, the petitioner has not made any demand for bribe and the transcript of the conversation does not at all indicate that the petitioner had participated in the mobile conversation. He therefore submits that the charge sheet amounts to harassment of the petitioner and therefore, it should be quashed.
4. In support his submission he places reliance on the following decisions:- i) AIR2019SC210(Anand Kumar Mohatta and Another Vs. State (Govt. of NCT of Delhi)) ii) AIR2017SC4434(Varala Bharath Kumar and Another Vs. Sate of Telangana and another) iii) 2019 AIAR (Criminal) 19 (Dashrath Singh Chauhan Vs. Central Bureau of Investigation 5. The learned standing counsel Sri. Santosh B. Malagoudar, per contra, submitted that the complaint itself shows that the petitioner and accused No.2 in the guise of enforcing the law had stopped the vehicle of the complainant - 6 - and thereafter, had made a demand for bribe in order to release the vehicle without registering a case and in furtherance of such attempt to obtain the bribe, the petitioner herein had made accused No.2 to speak on the mobile phone of CW1 to CW8 and they had carried on such conversation while accused No.2 was standing near the jeep and the present petitioner was sitting inside the jeep. The transcript of the entire conversation clearly shows that the petitioner and accused No.2 had attempted to obtain illicit gratification from CW1, CW4 and CW8 in order to release the lorry without registering any case against it for overloading. He further submitted that the case of the prosecution is supported by the evidence of CW1, CW4, CW6 and CW8 in the main and also from the conversation recorded on a compact disk. He contended that the materials placed in the charge sheet papers clearly make out a case for commission of offences punishable under Sections 7 r/w 13 of the Prevention of Corruption Act, 1988 and therefore, there is absolutely no ground whatsoever to quash the proceedings. He submitted that in this petition an interim order of stay has already been granted - 7 - on 18/12/2019 stalling the entire proceedings before the learned Special Judge and he submitted that in view of the decision of the Hon’ble Supreme Court in Satya Narayan Sharma Vs. State of Rajasthan (2001) 8 SCC607 stay of proceedings in cases involving commission of offences under Prevention of Corruption Act should not be granted. He also placed reliance on another decision of the Hon’ble Supreme Court reported in (2005) 13 SCC540State of Orissa and Another Vs. Saroj Kumar Sahoo to contend that power under Section 482 Cr.P.C. should be used sparingly in a matter of this nature where allegations are one of indulging in corrupt activity by the public servant and the Court should be slow in quashing the charge sheet.
6. I have given my anxious consideration to the submission made on either side and I have perused the charge sheet papers. The charge sheet papers disclose that on 2/9/2015 at about 8.45 pm, at T.B. Dam circle, Hospet, the present petitioner who is the police Inspector and police - 8 - constable by name Lingaraj (accused No.2) had stopped the truck bearing registration No.KA-22/C-2154 driven by CW1 and also another truck bearing registration No.KA-22/B-8792 driven by CW4, on the allegation that both the trucks were overloaded and thereafter, the present petitioner and accused No.2 had demanded a bribe of Rs.10,000/- which was subsequently scaled own to Rs.5,000/- for releasing the truck without booking a case. It is further disclosed that thereafter, accused No.2 standing infront of the jeep in which the present petitioner was sitting, spoke through the mobile phone of CW1 with CW8, who is the Managing Partner of the firm which was owning the trucks and during the long conversation, the demand for bribe for releasing the vehicles were made. The said conversation was recorded and it was copied in a compact disk and same was submitted along with the complaint lodged before the Lokayukta police by CW1. CW1, CW4, CW6 and CW8 have spoken about the same during the investigation. Out of them, CW1, CW4 and CW6 had seen accused No.2 making the telephone call using the mobile phone of CW1 and speaking with CW8 making the - 9 - demand. The whole conversation was recorded on CD and during the entire time, petitioner was sitting inside the jeep and the conversation makes it very clear that demand for bribe was made at the instance of accused No.1 himself. CW36, a scientific expert at F.S.L. Bangalore has given her opinion that voice on the C.D. matched with the voice samples of accused No.2 and CW8. The contention of the learned counsel for the petitioner is that the vehicles were weighed in the weighbridge which showed clearly that vehicles were overloaded and thereupon, fines were imposed and CW1 and CW4 had paid the same and thereafter, they had turned round and in order to take revenge had falsely implicated the present petitioner and accused No.2 in this case. However, the statements of CW1, CW4, CW6 and CW8 and also the transcript of the conversation clearly show that the demand for bribe had been made by accused No.2 at the instance of the present petitioner. The various inconsistencies pointed out by the learned counsel for the petitioner is a matter for trial.-. 10 - 7. At this stage, observation of the Hon’ble Supreme Court in Shahid Balwa Vs. Union of India and Others, (2014) 2 SCC687 is required to be noticed, “28. The Parliament, in its wisdom, has also noticed the necessity of early disposal of cases relating to bribery and corruption. Section 4(4) of the Prevention of Corruption Act, 1988 reflects the will of the Parliament that a Special Judge shall hold the trial of an offence on day- to-day basis, notwithstanding anything contained in the Code of Criminal Procedure. Section 19(3)(c) also states that, notwithstanding anything contained in the Code of Criminal Procedure, no Court shall stay the proceedings under the Prevention of Corruption Act on any other ground and no Court shall exercise the powers of the revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. Statutory provisions highlight the imperative need to eradicate the evils of bribery and corruption.
8. Similarly, it is observed by the Hon’ble Supreme Court in State of Orissa and Another Vs. Saroj Kumar Sahoo, (2005) 13 SCC540as follows:- “8. Exercise of power under Section 482 of the Cr.P.C. in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High - 11 - Court. It only saves the inherent power which the Court possessed before the enactment of the Cr.P.C. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Cr.P.C., (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or - 12 - revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.
11. As noted above, the powers possessed by the High Court under Section 482 of the Cr.P.C. are very wide and - 13 - the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. 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 and Raghubir Saran (Dr.) v. State of Bihar, AIR (1964) SC1. 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. When an information is lodged at the police station and an offence - 14 - is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna Kumar, [1990]. Supp SCC686 State of Bihar v. P. P. Sharma, AIR (1996) SC309 Rupan Deol Bajaj v. Kanwar Pal Singh Gill, [1995]. 6 SCC194 State of Kerala v. O.C. Kuttan, AIR (1999) SC1044 State of U.P. v. O.P. Sharma, [1996]. 7 SCC705 Rashmi Kumar v. Mahesh Kumar Bhada, [1997]. 2 SCC397 Satvinder Kaur v. State (Govt. of NCT of Delhi, AIR (1996) SC2983and Rajesh Bajaj v. State NCT of Delhil, [1999]. 3 SCC259.
14. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Cr.P.C., it is not permissible for the Court to act as if it was a trial Court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For - 15 - that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan (Smt.) v. Jawahar Lal and Ors., [1992]. 3 SCC317 it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Cr.P.C., which cannot be termed as evidence without being tested and proved.” (Emphasis supplied) 9. The above decisions of the Hon’ble Supreme Court make it abundantly clear that the Courts should be slow in exercising the power under Section 482 of Cr.P.C. especially where serious allegations of Corruption by public servants are made. In this case, the statements of the witnesses more particularly that of CW1, CW4, CW6 and CW8 and also the transcript of the conversation make out a prima facie case that there was a demand for bribe made by both the accused in order to release the lorry without registering a case for overloading.-. 16 - Under such circumstances, it is not possible for this Court to dissect the evidence like a trial Court and hold that the plausible defence of the accused has the potential to dislodge the case of the prosecution and second-guess the final out come of the trial at this stage itself and quash the proceedings. On an entire perusal of the charge sheet papers, it cannot be said that there is no legal evidence available in the charge sheet papers.
10. Accordingly, I am of the view that there is no merit in this petition and the petition is dismissed. In view of the above order, IA No.1/2019 does not survive for consideration, accordingly, it is disposed of. Sd/- JUDGE Vmb