K Chandregowda Vs. State Of Karnataka - Court Judgment

SooperKanoon Citationsooperkanoon.com/1231742
CourtKarnataka High Court
Decided OnMar-13-2020
Case NumberCRL.P 6664/2017
JudgeK.SOMASHEKAR
AppellantK Chandregowda
RespondentState Of Karnataka
Excerpt:
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]
r1- - in the high court of karnataka at bengaluru dated this the13h day of march, 2020 before the hon’ble mr.justice k.somashekar criminal revision petition no.506 / 2018 connected with criminal petition no.6664 / 2017 crl.rp.506/2018 between: mr. siddappa h. kaller s/o mr. hosurappa aged about 46 years working as a senior rto r/at 185, 9th cross, 3rd stage rajajinagara, bangaluru native of kallugudde village akki aluru hobli hanagal taluk haveri dist:581102. …petitioner (by sri shankarappa - advocate) and: state of karnataka by lokayuktha police chikmagaluru-577101. …respondent (by sri venkatesh .s. arabatti – spl.p.p) 2 - - this criminal revision petition is filed under section 397 r/w 401 of the code of criminal procedure, praying to, set aside the order dated 26.02.2018 in.....
Judgment:

R1- - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE13H DAY OF MARCH, 2020 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION No.506 / 2018 CONNECTED WITH CRIMINAL PETITION No.6664 / 2017 CRL.RP.506/2018 BETWEEN: Mr. Siddappa H. Kaller S/o Mr. Hosurappa Aged about 46 years Working as a Senior RTO R/at 185, 9th Cross, 3rd Stage Rajajinagara, Bangaluru Native of Kallugudde Village Akki Aluru Hobli Hanagal Taluk Haveri Dist:581102. …Petitioner (By Sri Shankarappa - Advocate) AND: State of Karnataka By Lokayuktha Police Chikmagaluru-577101. …Respondent (By Sri Venkatesh .S. Arabatti – Spl.P.P) 2 - - This Criminal Revision Petition is filed under Section 397 r/w 401 of the Code of Criminal Procedure, praying to, set aside the order dated 26.02.2018 in Spl. C.C.No.35/2015 pending before the Principal District and Sessions Judge and Special Judge, Chikkamagaluru under P.C. Act, discharge the petitioner from the offences alleged p/u/Sec. 7, 13(1)(d) r/w 13(2) of P.C. Act by calling for the record. CRL.P.6664/2017 BETWEEN: K. Chandregowda S/o Krishnegowda Aged about 62 years R/at Donikhana Chikmagaluru Worked as ‘D’ Group Employee Regional Transport Office Chikmagaluru - 577101. …Petitioner (By Sri Shankarappa - Advocate) AND: State of Karnataka By Lokayuktha Police Chikmagaluru By S.P.P. Lokayuktha office M.S. Building Bangalore – 560001. …Respondent (By Sri B. S. Prasad – Spl.P.P) This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, praying to, quash the entire proceeding in Spl.C.C.No.35/2015 pending before 3 - - the Principal District and Sessions Judge, Chikkamagaluru. This Criminal Revision Petition coming on for further arguments and Criminal Petition coming on for Admission this day, the Court made the following:-

ORDER

Crl.P.No.506/2018 is filed by the petitioner namely Siddappa H.Kalleri who is arraigned as accused No.1 in Special Case No.35/2015 challenging the order dated 26.02.2018 passed by the Prl.District and Sessions Judge and Special Judge at Chikkamagaluru on an application filed by him under Section 227 Cr.P.C seeking discharge from the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.

2. Crl.P.No.6664/2017 is filed by the petitioner namely K.Chandregowda who is arraigned as accused No.2 seeking to quash the entire proceedings in Special Case No.35/2015 on the file of Prl.District and Sessions Judge, Chikkamagaluru. 4 - - 3. The factual matrix of these petitions is that in the after noon of 17.7.2014, the PSI of Lokayukta Police, Chikmagaluru received a credible information to the effect that accused No.1 who was incharge of RTO Chikmagalur had been accepting bribe from mediator - accused No.2 who was working in the said office as D-group employee. At the time of raid, respondent police found an amount of Rs.30,380/- which was in the possession of accused No.2. On enquiry he disclosed that as per the direction of accused No.1, he has been collecting the amount from the public for the signature of accused No.1 who was signing on forms in respect of transfer of ownership of vehicles, registration of new vehicles, permit for installing gas, Bus route permit, Driver’s license etc. When they raided the RTO Office, accused No.1 was not found in the office and they had information that after getting information regarding the raid by Lokayukta Police, Accused No.1 left the office. The police inspector of Lokayukta apprehended accused No.2 and also seized the bribe amount of 5 - - Rs.30,380/- in denomination of Rs.1000, 500, 100, 20 and 10 as depicted in the mahazar.

4. Subsequently, a case came to be registered by the Lokayukta Police in Crime No.5/2014. Thereafter the Lokayukta Police investigated the case by recording the statement of witnesses and so also drew the mahazar in the presence of witnesses. In all CW.1 to CW.32 were cited as witnesses. Subsequently, charge sheet came to be filed by the Lokayukta Police under the aforesaid provisions of Prevention of Corruption Act against the accused persons. The Prl.District and Sessions Judge and Special Judge at Chikkamagalur took cognizance of the offence and issued process against the accused in Spl.C.C.No.35/2015.

5. Subsequently, Accused No.1 - Siddappa H.Kalleri filed Crl.Revision Petition No.1288/2016 before this Court under Section 397 r/w 401 of Cr.P.C. seeking to set aside the order dated 23.03.2016 of framing charge against the petitioner. This court vide order dated 6.1.2017 dismissed the petition as not maintainable. 6 - - 6. Further, petitioner/accused No.1 filed Crl.P.7735/2015 under Section 482 of Cr.P.C. before this Court seeking to set-aside the order dated 27.07.2015 passed by the Prl.District and Sessions Judge and Special Judge, Chickmagalur in Spl.C.C.No.35/2015 to quash all further proceedings. This petition came to be dismissed vide order dated 16.09.2016 with certain observations.

7. Further, the petitioner/Accused No.1 filed Crl.P.No.7392/2014 under Section 482 of Cr.P.C. seeking quashing of FIR in Crime No.5/2014 registered by the Lokayukta Police, Chikkamagalur. This Court vide order dated 23.08.2017 dismissed the petition as having become infructuous, since respondent police had filed the charge sheet. It was also observed that if an application for discharge under Section 227 of Cr.P.C has already been filed, the trial Court to consider the same in accordance with law.

8. Therefore, petitioner/Accused No.1 has filed Crl.R.P.No.506/2018 seeking to set aside the order dated 7 - - 26.02.2018 passed by the Prl.District and Sessions Judge and Special Judge at Chikkamagalur in Spl.Case No.35/2015 dismissing the application filed under Section 227 of Cr.P.C. to discharge him of the offence punishable under Sections 7, 13(1)(d) r/w 13(2) of the P.C.Act. Petitioner/Accused No.2 has preferred Crl.R.P.No.6664/2017 seeking to quash the entire proceedings in Spl.C.No.35/2015 on the file of Prl.District and Sessions Judge, Chikamagaluru.

9. Shri Shankarappa, learned counsel appearing for the petitioner in Crl.RP.506/2018 contends that though the petitioner is arraigned as Accused no.1 in Spl.C.C.No.35/2015, he is not involved in the offence as narrated in the suo motu complaint filed by the Police Inspector of Lokayuktha, Chickmagaluru. In fact the ingredients relating to the offences under Sections 7, 13(1)(d) read with Section 13(2) of the PC Act do not attract against this accused in view of the fact that his name does not find place either in the complaint or in the FIR said to 8 - - have been recorded by the Police Inspector, Lokayuktha Police. It is only on the say of Accused No.2 / Chandregowda, a Group 'D' employee in the RTO Office that the present petitioner's name has been included as Accused No.1. Learned counsel contends that his name had been included in the complaint on the instigation of some persons who carried professional rivalry against him and the complaint has been filed in order to humiliate and harass the petitioner.

10. Though the allegation against the petitioner / Accused No.1 who was working as an in-charge Regional Transport Officer, Chikmagaluru is to the effect that he had been collecting bribe money from mediators through accused no.2 to sign on forms regarding transfer of ownership of vehicles, giving clearance certificate, new vehicle registrations, permit for installing gas, grant of bus route permit and driving licence, etc., the said allegations against the petitioner have not been found by the prosecution. In fact when the Lokayktha police proceeded 9 - - to the chamber of Accused no.1, he was not at all present in the office and only on searching accused no.2 they had found an amount of Rs.30,380/- in his possession. When in fact the petitioner was not even present in the scene, the Lokayuktha Police has erred in including his name as the first accused in the complaint just on the say of accused no.2.

11. Learned counsel points out to the fact that Accused No.1 / Siddappa was working as a Regional Transport Officer, Nelamangala wherein he was placed in additional charge of RTO, Chikmagaluru as per official memorandum dated 26.04.2014. Accordingly, accused no.1 had reported to duty on 3.5.2014 and had taken charge from one K.R. Dharamaiah Gowda. Since he found that there were lot of irregularities in the Chikmagaluru RTO office as mentioned in the Commissioner note dated 15.06.2014, he started concentrating to provide good administration by implementing fully computerized treasury by adopting new software in order to have a better 10 - - account and function of the public transaction. Thus he had taken several steps for implementation of the instructions as per the note of the Commissioner of Transport to streamline the entire system. Since he had started reforming the administration of the RTO Chikmagaluru, the staff and other interest elements were angered with the petitioner and started non-cooperating for the smooth function of the office. Even during his short tenure in the said office, the petitioner had done marvelous work without any blemish.

12. As regards K.Chandregowda/accused no.2 is concerned, he being a Group 'D' employee was shifted to night duty. Since he had inconvenience, he had approached accused no.1 on many occasions to restore him to the original work arrangement, to which Accused no.1 had refused in the interest of smooth administration. In view of the said fact as well, accused no.2 had carried a grudge against accused no.1. Further, the petitioner / accused no.1 being an RTO Officer also had to attend 11 - - courts when there were Department cases. Particularly it is stated that he had travelled from Bengaluru to Birur on 16.07.2014 at about 6.00 a.m. in train and had attended to a case in Tarikere court. Thereafter, he had proceeded to attend the work in Chikmagaluru RTO office. When such being the position, the police had conducted a raid on 17.07.2014 at about 5.00 p.m. in the office of the first accused on the basis of voluntary statement of accused no.2 under threat. Though accused no.2 had given in writing that the said statement was obtained under threat, the Lokayuktha police had proceeded to file a charge-sheet against the accused.

13. The learned counsel further contends that accused no.2 had been allotted to work in the night on 17.07.2014 as per the work allocation. In spite of the same, the Lokayuktha police had threatened him and taken his voluntary statement and had falsely implicated accused no.1 at the instigation of professional rivalries. Therefore, the learned counsel contends that the offences 12 - - under Sections 7, 13(1)(d) and 13(2) of the PC Act is not at all attracted. Sections 7, 13(1)(d) and 13(2) of PC Act reads thus: “7. Public servant taking gratification other than legal remuneration in respect of an official act.—Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but 13 - - which may extend to five years and shall also be liable to fine.” 13(1)(d) if he,— (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or” 13(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.” 14 - - 14. A reading of the above sections discloses that there are no ingredients of either demand of illegal gratification or acceptance of the same by accused no.1 at any point of time. Even accepting the entire case of the prosecution, the basic requirements to implicate the first accused in the case nor any materials have been produced to prove the allegations against the petitioner. Further, the mobile network of accused no.1 also was not traced within the limits of the Chikmagalur RTO office as on 17.07.2014 at 5.00 p.m., which clearly indicates that in fact accused no.1 was not at all in station. Hence, the learned counsel contends that accused no.1 ought not to have been prosecuted for false and baseless allegations made with ulterior motive.

15. Further, there is also no prima facie evidence to prove that accused no.1 was caught red-handed while accepting the alleged bribe amount. He was also not present in the office when the money was recovered from 15 - - Chandre Gowda / Accused No.2. It is vehemently contended by the learned counsel for the petitioner in Crl.P.506/2018 that in the absence of any proof of demand for illegal gratification or use of corrupt or illegal means or abuse of position as a public servant, the circumstance of he having received the bribe cannot be held to be established. Hence, the same is not sufficient to hold that he has committed an offence under the PC Act, which contention is also supported by the following reliances: i) (2001) 6 SCC181– T.T.ANTONY vs. STATE OF KERALA AND OTHERS AND CONNECTED MATTERS In this judgment, the Hon’ble Apex Court has held that “Interference with statutory right of police to make investigation into cognizable offence pursuant to lodging of FIR – a just balance has to be struck between citizen’s rights under Arts.19 and 21 and expansive power of police to make investigation – After registering the FIR and commencing investigation, registering of second FIR or successive FIRs in respect of the same incident and crime and making of fresh investigations pursuant thereto would be irregular which call for interference by High Court under 16 - - Arts.226/227 or Section 482 CrPC and interference by Supreme Court under Art.136 with fresh investigation to prevent abuse of statutory power of investigation or otherwise to secure ends of justice” ii) (2008) 10 SCC394– YOGESH ALIAS SACHIN JAGDISH JOSHI vs. STATE OF MAHARASHTRA In this judgment, the Hon’ble Apex Court has held that “Sections 227, 228 and 209 – discharge – scope and ambit of powers of trial court under Section 227 – if two views are equally possible and the Judge is satisfied that evidence produced gives rise to suspicion only, as distinguished from grave suspicion, he would be fully within his right to discharge the accused – at this stage he is not to see whether the trial will end in conviction or not – words and phrases – expression ‘not sufficient ground for proceeding against the accused’ appearing in Section 227, explained.” iii) (2013) 14 SCC153– STATE OF PUNJAB vs. MADAN MOHAN LAL VERMA In this judgment the Hon’ble Supreme Court has held that ““Public Accountability, Vigilance and Prevention of Corruption – Prevention of Corruption Act, 1988 - Sections 20 and 7 – Necessity of showing 17 - - demand for illegal gratification – mere recovery of tainted money not enough – burden on accused to displace the statutory presumption – evidence of complainant how to be scrutinized.” iv) (2016) 12 SCC150– V.SEJAPPA vs. STATE BY POLICE INSPECTOR LOKAYUKTA, CHITRADURGA In this decision, the Hon’ble Apex Court has held that “Public Accountability, Vigilance and Prevention of Corruption – Sections 7 and 20 – Illegal gratification – Proof of demand – Sine qua non for constituting offence under Section 7 – Mere recovery of tainted money, not sufficient to convict accused – presumption under Section 20 – when arises – duty of court while invoking provisions of Section 20 – principles summarized – demand not having been proved, acquittal restored. Public Accountability, Vigilance and Prevention of Corruption – Sections 7 and 13(1)(d) r/w Section 13(2) – illegal gratification – demand and acceptance of – allegedly for forwarding pension papers of complainant – not proved – plea of alibi given by accused – found valid – mere recovery of tainted currency notes from accused – but no evidence given by prosecution to prove that was paid was illegal gratification – acquittal of accused, restored. 18 - - v) Reliance is also placed on a decision of the Hon’ble Supreme Court in Criminal Appeal No.696/2014 (B.Jayaraj vs. State of AP) wherein it is held that “in so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13 (1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case, the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent.” vi) Reliance is also placed on a decision of the Hon’ble Supreme Court reported AIR1979SC366Union of India vs. Prafulla Kumar Samal wherein it is held that “in exercising his jurisdiction under Section 227, the Judge which under the present Code is a senior and experienced court cannot act merely as a Post – Office or a mouthpiece of prosecution, but has to 19 - - 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 as if he was conducting a trial.” Further, learned counsel for the petitioner has also placed reliance on the decisions of this Court reported in LAWS(KAR) 2012 9 150, 2016 SCC Online Kar 373 and a judgment of High Court of Andhra Pradesh reported in LAWS (APH) 2014 4 14.

16. In view of all these contentions, the learned counsel urges that offences alleged under sections 7, 13(1)(d) and 13(2) would not at all attract against the present petitioner and hence seeks to set aside the order dated 26.02.2018 in Spl.C.C.No.35/2015 passed by the file of the Prl. District and Sessions Judge and Spl. Judge, Chikmagaluru and discharge the petitioner / Accused No.1 / Siddappa .H. Kalleri from the alleged offences. 20 - - 17. As regards K. Chandregowda / the petitioner in CRL.P.No.6664/2017 is concerned, the learned counsel Shri Shankarappa contends that even according to the complaint, the name of the petitioner does not find place in the complaint. However, during the course of filing the charge sheet, his name has been inserted with a malafide intention and therefore the alleged offences under sections 7,13(1)(d) and 13(s2) of the PC Act is not at all attracted .

18. The primary contention of the learned counsel is that the respondent Police Inspector by name Jayananda.K had taken the petitioner to the RTO office, Chikmagaluru at about 5 PM on 17.7.2014 along with two officials near the chamber of accused No.1. Since he was not found in the office, the police had threatened the present petitioner / accused No.2 by handing him over some amount by force outside the chamber of accused No.1 and had further taken his voluntary statement by use of force. Hence, he contends that the initiation of criminal proceedings is nothing but abuse of process of law. 21 - - 19. It is further contended that he had rendered his service without any blemish and the Lokayukta police by suppressing the true facts though knowing fully well that the petitioner has not committed any offence, has falsely implicated him in the alleged criminal case which is completely an abuse of process of law. Further, it is contended that the respondent being the complainant by himself has conducted the investigation and has filed the charge sheet at a later stage with an intention to spoil the reputation of the petitioner. Even on any prior occasion as well, there is not even a single circumstance of any complaint being filed against him. Hence it is contended that he being an innocent person and having deep roots in the society, having regard to the grounds urged in the petition, it is prayed that his petition be allowed and he be discharged of the alleged offences by quashing the entire proceedings in Spl.C.C.No.35/2015 pending on the file of the Prl. District and Sessions Judge, Chikmagaluru. 22 - - 20. Per contra, learned counsel Shri Venkatesh S. Arabatti appearing for the Lokayuktha in Crl.P.No.506/2018 vehemently contends that the Special Judge, Chikkamagaluru, on a proper appreciation of the documents as well as the material evidence on record, has rightly dismissed Accused No.1 - Siddappa H. Kalleri's application filed under Section 227 of Cr.P.C. seeking to discharge him for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the PC Act.

21. He contends that though it is stated that Accused No.1 had gone to attend a case in Tarikere court and on the particular day of the raid he was not at all present in the Chikmagaluru RTO Office, from the documents collected by the Investigating Officer and the statement of witnesses recorded, it is clearly revealed that Accused No.1 was in fact present and was working in the Chikmagaluru RTO office from the afternoon of 17.07.2014 till little prior to the raid by Lokayuktha police. Hence, it cannot be said that Accused No.1 was not present and had not discharged 23 - - his duty on 17.07.2014 when the raid was conducted by the Lokayuktha. Hence he contends that only on the instructions of Accused No.1, Chandregowda - Accused No.2 had collected the bribe amounts from various persons in order to thereafter hand it over to Accused No.1, which cannot be denied. It is based on source of information received that the Lokayuktha had conducted the raid and caught Accused No.2 red-handed. Further, charges also having been framed against the accused, the Trial Court had rightly dismissed his application for discharge, which order does not call for interference in this petition. Hence, he prays that petition filed by Accused No.1 be dismissed.

22. He further contends that the materials secured by the IO during the course of investigation it reveals that Accused No.1 had received amount in terms of bribe in a sum of Rs.30,380/- collected by the accused No.2. Therefore, the ingredients of Section 7 in respect of demand and acceptance and so also the conduct of this accused in respect of illegal gratification under Section 24 - - 13(1)(d) r/w 13(2) P.C.Act reveals in a charge sheet laid by the IO. Subsequent, to investigation done by the IO he obtained the sanction accorded from the competent authority in order to prosecute the case against the accused. Whereas the accused No.1 had approached this Court in Crl.R.P.1288/2016 under Section 397 r/w 401 of Cr.P.C challenging the order dated 23.03.2016 framing charge against him for the offence punishable under Sections 7, 13(1)(d), 13(2) of P.C.Act in Spl.C.No.35/2015. This Court by referring to the observations made by the Hon’ble Supreme Court in the case of Amit Kapoor vs. Ramesh Chander and another (2012) 9 SCC460dismissed the petition as not maintainable.

23. Further, Accused No.1 had filed Crl.P.No.7735/2015 before this Court challenging the order dated 27.07.2015 passed by the trial Court in Spl.C..No.35/2015 and to quash all further proceedings as against him. This Court vide order dated 16.09.2016 dismissed the petition by observing that “when that 25 - - prospect is positively available to the petitioner, there is no warrant for interference by this Court”.

24. It is further contended that Accused No.1 had filed a petition before this Court in Crl.P.No.7392/2014 seeking quashing of FIR in Crime No.5/2014 registered by the Lokayukta police, Chikkamagalur. This court vide order dated 23.08.2017 dismissed the petition as having become infructuous with an observation that “if application for discharge under Section 227 of Cr.P.C. has already been filed by the petitioner, trial Court would necessarily consider the same on merits and in accordance with law.

25. These are all the orders passed by this Court which have been facilitated by learned Spl.P.P. in support of his case relating to the impugned order passed by the trial Court. He contends that the materials collected by the IO during the course of investigation reveals that prima facie materials are available against accused No.1 for the offences alleged against him. 26 - - 26. In support of his contention, he relied on a judgment of the Hon’ble Apex Court in Criminal Appeal No.1066/2017 between the State of Karnataka vs. Lakshmikantha S.G. wherein it is observed that “wherein this court in paragraphs 105-106, 115 and 117 has carved out exceptions to the rule of immediate registration of an FIR and had permitted holding a preliminary inquiry in certain cases, we are of the view that distinction as sought to be made by the High Court is not acceptable. The proceedings in the present case prior to the lodging of the FIR must be understood in the nature of a preliminary inquiry which is permissible in law as laid down by this Court in Lalita Kumari (supra).

27. Relying on the above decision, learned Spl.P.P. contends that the said decision is applicable to the facts and circumstances of the present case and so also involvement of accused No.1 in a charge sheet laid by the IO in Spl.C.No.35/2015. 27 - - 28. Reliance is also placed on a decision of the Hon’ble Supreme court in Criminal Appeal No.1662/2019 between The State of Telangana vs. Sri Managipet @ Mangipet Sarveshwar Reddy, dismissing the appeal filed by the Accused and allowing the appeal filed by the State.

29. In the instant case, the FIR itself shows that the information collected in respect of involvement of Accused No.1 who was giving instructions to accused No.2 to collect money as a mediator. On the date of raid by the Lokayukta Police, Accused No.2 was possessing a sum of Rs.30,380/- and the same was seized by the IO during the course of investigation and explanation was recorded. In the explanation he has stated that he was collecting the amount as per the instructions of Accused No.1. Therefore, there are prima facie materials against these accused persons in committing the offence. Therefore, once the IO is satisfied with such disclosure, he can proceed against the accused by recording FIR. Though Accused No.1 was not found at the relevant point of time, 28 - - but the fact of involvement of Accused No.2 in collecting the bribe amount of Rs.30,380/- and seized by the IO cannot be denied.

30. Further, Sri Venkatesh S.Arbatti, learned Spl.P.P. contends that the offences committed by the accused is required to be tested in evidence to be adduced by the prosecution to prove his guilt. Therefore, on all these grounds, he contends that in this petition it does not require any interference of this Court and seeks for dismissal of the petition.

31. Learned counsel Shri B.S. Prasad appearing for the Lokayuktha in respect of Crl.P.6664/2017 contends that the fact that Accused No.2 - Chandregowda was caught red-handed in possession of Rs.30,380/- being the bribe amount collected from mediators for one day, i.e., for 17.07.2014, cannot be denied. On enquiring with him regarding the said amount, he had stated to the Lokayuktha police that he was collecting the amounts as per the directions of Accused No.1 and that he was in the 29 - - habit of handing over the particular day's collection to Accused No.1 in the evening. When Accused No.2 himself had accepted the said position, he cannot retract from his own statement later and tell that the said statements were made by him before the Lokayuktha police under threat. Further, charges having been framed against this accused and when there is strong material against Accused No.2 for he having involved in the alleged offences, his petition requires to be rejected outright so that the case against him in Spl.C.C.No.35/2015 pending before the Prl. District & Sessions Judge, Chikmagaluru is taken up and proceeded from the stage at which it was stopped in view of the stay order granted by this court on 03.04.2018.

32. In support of his contentions he has placed reliance on a decision of the Hon’ble Apex Court reported in (2010) 9 SCC368between Sajjan Kumar vs. Central bureau of Investigation wherein it is held that “at the stage of framing of charge under Section 228 or while considering discharge petition filed under Section 227, it is not for 30 - - Magistrate or Judge concerned to analyse all the materials including pros and cons, reliability or acceptability thereof, etc. – It is at the trial, that Judge concerned has to appreciate evidentiary value, credibility or otherwise of the material, veracity of various documents and is free to take a decision one way or the other”.

33. Reliance is also placed on a decision of this Court in W.P.No.108338/2015 (GM-RES) disposed on 14.03.2017 wherein it is observed that “in view of the above said decisions, it is made abundantly clear that the Inquiry Officer or the investigating Officer who has received any information or the complaint or FIR. On plain reading of the same, if it discloses any cognizable offence, then it is the bounden duty of the Police Officer to register a case u/s 154 of Cr.P.C.

34. Placing reliance on the above decisions, he would contend that the said decisions are squarely applicable to the present case on hand and seeks for dismissal of the petition as devoid of merits. 31 - - 35. It is in this context, it is relevant to refer to the FIR recorded by the Lokayukta Police in Crime No.5/2014 dated 17.7.2014. The Police Inspector of Lokayukta Police, Chikmagalur, submitted a FIR in Crime No.5/2014 in a sealed cover with a requisition on 17.7.2014. Further, a requisition with arrest intimation was also submitted. Further the P.I of Lokayukta Police submitted a remand application against Accused No.2 for the offence punishable under Sections 7, 13(1)(d). Accused No.2 Chandregowda said to be a Government employee working as a Group ‘D’ employee. He was collecting money in terms of bribe from the mediators as per the instructions issued by Accused No.1 - Siddappa Kalleri, in respect of transfer of ownership of vehicles, clearance certificate, new vehicle registrations, permit for installing gas, bus route permit, driver’s licence etc. CW.32 being the Police Inspector of Lokayukta, Chikamagalur led his team members to the office of Siddappa Kalleri and apprehended Chandregowda with their assistance and also in the presence of panch 32 - - witnesses. In their presence on personal search of Chandregowda, a sum of Rs.30,380/- was found in his pocket. On enquiry he disclosed that as per the instructions issued by the RTO he collected the said amount from the RTO agents. But on the said day, the RTO had left his office and the amount collected was given to him. Being aware of the raid to be conducted by the Police, that Accused No.1 – Siddappa Kalleri had left the office.

36. The charge sheet consists in all CWs.1 to 32. CW.32 being the Police Inspector of Lokayukta had laid the charge sheet. CW.1 – Narasaiah and CW.2 – Jayasheela who were secured by the Lokayukta Police to act as panch witnesses. CW.3 – H.B.Santosh Kumar is an agriculturist and journalist and CW.16 – Basavaraju being an official in the office of the accused gave a statement before the IO during the course of investigation. CW.17 – R.V.D’Souza, Additional transport Commissioner (Admn.) had submitted the service details of the accused and also allocation of sim card and mobile phone to Siddappa Kalleri. CW.20 – 33 - - Beeresh, Under Secretary, Karnataka Government Secretariat and CW.21 – Dr.Ramegowda, Transport Commissioner and competent authority to accord sanction for prosecution in respect of Accused No.1 and 2. CW.22 to 30 are the official witnesses being police constables who assisted the IO in the case. CW.31 – Sampath Kumar and CW.32 – Jayanand are the Police Inspectors of Lokayukta Police who conducted the investigation and laid the charge sheet against the accused.

37. It is contended by learned counsel for the petitioner/accused No.1 that due to court work, he had traveled from Bengaluru to Birur on 16.7.2014 at about 6 a.m. in train and attended to Tarikere Court. Thereafter, he had proceeded to attend the work in Chikmagaluru RTO office. The train ticket dated 15.7.2014 was produced for verification. When such being the position the Lokayukta police conducted the raid on 17.7.2014 in the office of the accused No.1 on the basis of voluntary statement of accused No.2. In fact, this was brought to the notice of 34 - - Lokayukta Police in writing by accused No.2. But without considering the same the charge sheet has been laid.

38. It is further contended that there is no demand by this accused and there was no agreement reached between this accused and any other person/agents and there are no materials to show that this accused had demanded the amount in question to invoke Section 7 of the P.C.Act. In the absence of any materials to prove the ingredients of Section 7 or 13(1)(d) of the P.C.Act against this accused, the only available material is the alleged explanation given by Accused No.2 that he had been collecting the amount at the behest of Accused No.1. The statement of this accused to the offence against the co- accused cannot be used as an evidence, unless there is something more to connect the co-accused independently of the statement given by this Accused, it cannot be said to be guilty of the offences aforesaid. To prove the offences under Section 7 and 13(1)(d) of the Act, there should be ‘demand’ and ‘acceptance’ of illegal gratification in 35 - - connection with any pending work with the accused. In the present case, although Rs.30,380/- the bribe amount is alleged to have been collected by Accused No.2 at the behest of accused No.1, there is no evidence forthcoming from whom the said amount has been collected and that there were any materials to connect this bribe money with the work that is pending as on the date of alleged offence.

39. Accused No.1 is challenging the order passed by the trial Court where application filed under Section 227 of Cr.P.C. seeking discharge has been rejected. But there is no express bar in the Code of Criminal Procedure code by challenging the order passed by the trial Court in respect of an application filed under Section 227 of Cr.P.C. The Hon’ble Apex Court in Asian Resurfacing of Road Agency vs. Central Bureau of Investigation reported in (2018) 16 SCC299has observed that “However, there is a series of cases wherein this Court while dealing with the provisions of Sections 227, 228, 239, 240, 241, 242 and 245 Cr.PC, has consistently held that the court at the stage of framing 36 - - of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the accused. The court has to see as to whether the material brought on record reasonably connect the accused with the offence. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the accused further….If contrary to the above law, at the stage of charge, the High Court adopts the approach of weighing probabilities and re-appreciate the material, it may be certainly a time consuming exercise. The legislative policy of expeditious final disposal of the trial is thus, hampered. Thus, even while reiterating the view that there is no bar to jurisdiction of the High Court to consider a challenge against an order of framing charge in exceptional situation for correcting a patent error of lack of jurisdiction, 37 - - exercise of such jurisdiction has to be limited to rarest of rare cases.

40. Power to discharge an accused if after perusal of the record, the record consisting the statement of witnesses and so also mahazar said to have been conducted by investigating officer in order to lay the charge sheet against the accused under Section 173 of Cr.P.C. The object of provision requires the trial Judge to record its reason stating that whether there are any prima facie materials are found in record against the accused to proceed with the case, that power shall be exercised by scrutiny of the entire materials on record. But in the instant case, the accused No.1 Siddappa H Kalleri has filed an application under Section 227 of Cr.P.C. seeking for discharge from the offences under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988. Though the currency note in a sum of Rs.30,380/- has been seized from the possession of the co-accused namely Chandregowda who is arraigned as accused No.2 in Special 38 - - C.C.No.35/2015 arose in Crime No.5/2014, but the law was set into motion by recording a First Information Report by CW.32 i.e. Jayanand being an investigating officer who laid the charge sheet against the accused. It is based upon the FIR said to have been recorded by him. But he got credible information about the accused to commit the alleged offences as narrated in the FIR and so also in the substance of the charge sheet laid by him. The amount in a sum of Rs.30,380/- was seized from the possession of the accused No.2 Chandregowda and based upon his explanation, the case has been proceeded against the accused No.1 - Siddappa H Kalleri and also the co-accused – K.Chandregowda.

41. Section 397 of Cr.P.C. deals in recording the order passed by the Court below on an application filed under Section 227 of Cr.P.C., but in the instant case the charges were framed against the accused No.1 - Siddappa H Kalleri who is arraigned as accused No.1 for the offences under Sections 7 and 13 (1)(d) r/w 13(2) of the Prevention 39 - - of Corruption Act, 1988. That order has been challenged by this accused in this criminal revision petition under Section 397 of Cr.P.C. But in exercise of the power vested with this Court under the said provision it is only to see that whether there are prima facie materials found place in the charge sheet laid against the accused to proceed the case for trial and also whether there are any materials on which the case of the prosecution rests and the like would justified the intervention of the impugned order of a charge framed against the accused Siddappa H Kalleri to meet the ends of justice and also if there is any miscarriage of justice only this court can interfere in the rarest of rare case to exercise the powers, if not certainly there shall be greater injustice to the accused merely because the co- accused has given an explanation during the course of investigation done by CW.32 being an police inspector of Lokayuktha who laid the charge sheet against the accused and also for having seized the currency notes in a sum of Rs.30,380/-. Whereas, under Section 397(2) of Cr.P.C. the 40 - - power is vested with this Court to discuss consideration of the materials collected by the investigating officer in order to lay the charge sheet against the accused to the Criminal Procedure Code is undoubtedly a complete code in itself. To exercise the power under Section 397(2) of Cr.P.C. only in respect of final orders and intermediary orders, but consideration of an application under Section 227 of Cr.P.C. in the instant case relating to framing of a charge by the trial Court in Special C.C.No.35/2015 arose in Crime No.5/2014. But the power shall be exercised sparingly with great care, caution, circumspection and only to prevent grave miscarriage of justice.

42. In a given facts and circumstances of the case, CW32 Police Inspector of Lokayuktha , Chickmagalur who got credible information, then only he formed the team consisting his staff members and so also secured the panch witnesses and with the assistance of the team members he apprehended accused Chandregowda and also for having seized the currency notes in a sum of 41 - - Rs.30,380/- which was found in his possession. Therefore, it is said that the ingredients of the offences punishable under Section 7 of the Prevention of Corruption Act of 1988 in respect of accused Siddappa H Kalleri and so also illegal gratification in respect of the offences punishable under Section 13(1)(d) r/w 13(2) of Prevention of Corruption Act of 1988 and whatever the materials collected by the investigating officer in order to lay the charge sheet against the accused, but no sufficient materials are found in so far as accused Siddappa H Kalleri who is arraigned as an accused No.1, but the materials in which secured by the investigating office during the course of investigation and so also recording the statement of witnesses inclusive of an explanation given by the accused Chandregowda during the course of enquiry before the Investigating Officer and also for having seized the currency notes of Rs.30,380/- from his possession there are enough materials to proceed against the accused Chandregowda who is arraigned as accused No.2 and moreover he being a government servant 42 - - working as an ‘D’ Group employee in the office of the RTO at Chickmagalur. Therefore, the charges are framed against the accused Chandregowda as there are enough materials available against him and he is required to face trial. But, however, accused Siddappa Kalheri who is arraigned as accused No.1 and also to discharging duty as an in-charge RTO in the office at Chickmagalur on 17.7.2014 in between 1.30 p.m. to 5.00 p.m. though the aforesaid accused Siddappa H Kalleri was not present at the time of raid, he has been secured by the Police Inspector of Lokayuktha and he was present from few hours before in the office even after apprehending accused Chandregowda and thereafter only proceed with the case for investigation and laying the charge sheet inclusive of the accused Siddappa H Kalleri. Though the Competent Authority has accorded sanction to prosecute the accused Siddappa H Kalleri for the offence punishable under the Prevention of Corruption Act, 1988, wherein, the charge sheet has been laid against him also, but in totality of the 43 - - circumstances and having gone through the statement of the witnesses and so also the mahazar said to have been recorded by the Investigating Officer. Though charge sheet is laid by the Investigating Officer by recording the statement as required under Section 173 of Cr.P.C., but it is not sufficient material to proceed against the accused Siddappa H Kalleri who is arraigned as accused No.1 but there is sufficient material in the charge-sheet laid against accused no.2 who is required to face trial where charge has been framed against him. However, there is a power vested with the court under Section 397 of Cr.P.C. for intervention of the order passed by the trial Court on an application filed by accused No.1 under Section 227 of Cr.P.C. Therefore, in terms of the aforesaid reasons, I am of the considered opinion that accused Siddappa H Kalleri is deserving for discharge for the offence leveled against him by consideration of an application under Section 227 of Cr.P.C. filed by him before the trial Court. 44 - - 43. Consequently, the order passed by the Court of Principal District and Sessions Judge, Chikkamagaluru, in Special C.C.No.35/2015 dated 26.2.2018 in respect of accused Siddappa H Kalleri deserves to be set-aside. But the materials secured by the Investigating Officer while laying the charge sheet against the accused K.Chandregowda who is arraigned as accused No.2 he is required to face trial. Consequently, the charge framed by the trial Court against him is found to be correct as there is no error in framing of charge. Therefore, it is said that the petition filed by him under Section 482 of Cr.P.C. seeking quashing of the proceedings in Special C.C.No.35/2015 deserves to be rejected. For the aforesaid reasons and findings, I proceed to pass the following:

ORDER

Crl.R.P.No.506/2018 filed by the petitioner namely Siddappa H Kalleri is hereby allowed. Consequently, the order passed by the trial Court in Special Case No.35/2015 dated 26.2.2018 is hereby set aside. Consequently, the 45 - - application filed by him under Section 227 of Cr.P.C. is hereby allowed and he is discharged from the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. Crl.P.No.6664/2017 filed by the accused K.Chandregowda under Section 482 of Cr.P.C. seeking for quashing of the entire proceedings in Special Case No.35/2015 is hereby rejected. Consequently, the trial Court shall proceed against the accused K.Chandregowda who is arraigned as accused No.2 in Special Case No.35/2015 for the offence punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 leveled against him, in accordance with law. Whatever the observation made in this order relating to disposal of petition filed either by the accused Siddapa H Kalleri in Criminal Revision Petition No.506/2018 and also the petition filed by the accused K.Chandregowda in Criminal Petition No.6664/2017 filed by him under Section 46 - - 482 of Cr.P.C. seeking for quashing of the entire proceedings, shall not influence the mind of the trial Court, and the trial Court shall proceed against accused No.2 in accordance with law. Sd/- JUDGE DKB/KS/AP