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2019 Supreme(Kar) 2059
IN THE HIGH COURT OF KARNATAKA
B.A. PATIL, J.
B.P. Naveen – Appellant
Versus
State of Karnataka by Lokayukta Police City Division – Respondent
Criminal Revision Petition Nos. 245, 279, 356 of 2019
Decided On : 04-12-2019
Advocate Appeared:
P. Prasanna Kumar, B.S. Prasad.
Headnote:
Constitution of India,1950 - Article 166 - Prevention of Corruption Act - Section 13(1)(e) r/w 13(2) and 19 - Indian Penal Code,1860 - Sections 120B and 109 - Criminal Procedure Code,1973 - Section 227 - Karnataka Government (Transaction of Business) Rules, 1977 - Amassed wealth disproportionate to known sources of income - Miscarriage of justice - Whether offence alleged is attracted under relevant provisions - whether the facts would reveal commission of an offence under the relevant provisions - Whether all relevant materials were placed before the competent authority and after verification and application of mind - Whether there is a prima-facie case made out against the accused or not - - Whether or not a prima facie case against accused has been made out - Case are basis of a source report submitted by the Superintendent of Police, Division, a case was registered in Crime against accused No.1 for offence punishable under Section 13(1)(e) r/w Section 13(2) of the Prevention of Corruption Act on allegation petitioner-accused No.1 has amassed wealth disproportionate to known sources of income to the tune of % by inflating price of assets and expenditure and by reducing the income received by accused No.1. After investigation, charge sheet has been filed against petitioners herein - Contention of learned counsel for the petitioners-accused impugned order of the trial Court is contrary to facts, law and material placed on record, which has resulted into miscarriage of justice - Sanction issued by the Desk Officer of Transport Department is not in accordance with law. He has not applied his mind and is not competent to issue the said sanction order - It is his further submission all relevant materials have to be apprised and facts must reveal he has applied his mind and has appreciated the materials relevant for the purpose of issuance of sanction - It is his contention in sanction order issued by the Desk Officer – Held, Test to determine a prima facie case would naturally depend upon facts of each case and it is difficult to lay down a rule of universal application - Large however if two views are equally possible and Judge is satisfied evidence produced before him while giving rise to some suspicion but not grave suspicion against accused - present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of case, total effect of the evidence and documents produced before the Court, any basic infirmities appearing in case and so on does not mean Judge should make a roving enquiry into pros and cons of the matter and weigh the evidence as if he was conducting a trial - accused has amassed wealth in the name of his wife and brother and the said amounts are disproportionate to his known sources of income - It is contention of the learned counsel for the petitioners-accused accused No.3 - Wife of accused No.1 is also having separate source of income and she is an income tax assessee and accused No.2 is the brother of accused No.1 and he is doing contract work and out of his earnings, he has kept amount in his account - Order to substantiate the said fact no substantive material has been produced absence of the same - Persons have also been charge sheeted for offence under Section 120B of IPC and also under Section 109 of IPC for abetment. premature stage, it cannot be held there is only suspicion and discharge the petitioners-accused - Matter requires consideration – Petitions are dismissed
JUDGMENT :
B.A. PATIL, J.
1. Criminal Revision Petition No.245/2019 has been filed by accused No.2, Criminal Revision Petition No.356/2019 has been filed by accused No.1 and Criminal Revision Petition No.279/2019 has been filed by accused No.3, challenging the order passed by LXXVI Additional City Civil and Sessions Judge and Special Judge, Mayo Hall Unit, Bengaluru in Special Case No.334/2010 dated 13.6.2018 and 20.8.2018, whereunder applications filed by the petitioners-accused Nos.2 and 3 and accused No.1 respectively, came to be dismissed.
2. I have heard Sri P.Prasanna Kumar, learned Advocate appearing for Smt. Rashmi Jadhav, for petitioners and Sri.B.S.Prasad, Special Public Prosecutor for respondent-Lokayuktha.
3. The brief facts of the case are that, on the basis of a source report submitted by the Superintendent of Police, Lokayuktha, Bengaluru Division, a case was registered in Crime No.28/2007 against accused No.1 for the offence punishable under Section 13(1)(e) r/w Section 13(2) of the Prevention of Corruption Act on the allegation that petitioner-accused No.1 has amassed wealth disproportionate to known sources of income to the tune of Rs.4,12,17,952/- about 435.80% by inflating the price of assets and expenditure and by reducing the income received by accused No.1. After investigation, charge sheet has been filed against the petitioners herein.
4. It is the contention of the learned counsel for the petitioners-accused that the impugned order of the trial Court is contrary to facts, law and material placed on record, which has resulted into miscarriage of justice. The sanction issued by the Desk Officer of Transport Department is not in accordance with law. He has not applied his mind and is not competent to issue the said sanction order. It is his further submission that all the relevant materials have to be apprised and facts must reveal that he has applied his mind and has appreciated the materials relevant for the purpose of issuance of sanction. It is his contention that in the sanction order issued by the Desk Officer, no such material has been placed. In order to substantiate his contention, the learned counsel has relied upon the decision in the case of P.L. Tatwal vs. State of Madhya Pradesh, (2014) 11 SCC 431.
He has submitted that the provisions of Section 13(1)(e) of the Prevention of Corruption Act are not attracted to accused Nos.2 and 3. The calculation has been done with double counting. If the said double counting is eliminated, case of prosecution will not sustain. It is his further submission that the validity of sanction could be raised at any time and if the Court considers that the sanction is not in accordance with law, it has to discharge the accused for the alleged offences. In order to substantiate the said contention, he relied upon the decision in the case of Nanjappa vs. State of Karnataka, (2015) 14 SCC 186. He has submitted that the income of accused No.2 and 3 has not been properly and correctly assessed and no break up has been given. As such, the charge sheet filed is a defective one. The trial Court, without considering the said fact, has come to a wrong conclusion in dismissing the applications. On these grounds, he has prayed to allow the petitions and to set aside the impugned order and discharge these petitioners-accused Nos.1 to 3.
5. Per-Contra, learned Special Public Prosecutor has vehemently argued that the Desk Officer has put up the file through Under Secretary and Secretary and subsequently, the same has been got approved by the concerned Minister and the Governor. The sanction order has been issued in the name of the Governor. The Karnataka Government (Transaction of Business) Rules, 1977 empowers the official to issue orders in the name of the Governor. The concerned Minister has applied his mind to the factual matrix and thereafter, approved for issuance of sanction order and in pursuance to the same, the Desk Officer has issued the sanction order. There is no illegality
