(Prayer: This Criminal Petition is filed under Section 482 code of Criminal Procedure, 1973, praying to reverse and set aside the order dated 19.7.2012 passed by the XXIII Additional City Civil and Special Judge for Prevention of Corruption Act, Bangalore City in Spl.C.C.No.136/2012 passed in the case taking cognizance of the offence punishable under Section 120-B of IPC read with Sections 9, 10 and Sections 13(1)(d)(ii) of the Prevention of Corruption Act and also for offence which made penal under Section 120B read with Sections 464, 468 and 471 of IPC and further directing process against the petitioner for his appearance in the case before the court.
This Criminal Petition filed under Section 482 of the Code of Criminal Procedure, 1973 praying to quash the charge sheet in Spl.C.C.No. 136/2012 on the file of the XXIII Additional City Civil andSessions Judge and Special Judge for Prevention of Corruption Act, Bangalore City, for offence punishable under Section 13(1)(d)(ii) read with Section 13(2) of P.C.Act, 1988 and Section 120-B and 420 of IPC against the petitioner and consequently discharge the petitioner of the said offences.)
1. These petitions are heard and disposed of together as certain common issues arise.
2. The first of these petitions is filed in the following background. It is stated that one Nagaraj is said to have succeeded to the estate of one Patel Lingegowda. The said Lingegowda was said to have been the owner of land in Sy.No.12/1 of Kereguddadahalli, Chikkabanawara, Bangalore North taluk, measuring about 4 acres and 5 guntas. He is said to have sold one acre out of the said land in favour of one Keshava Murthy. The petitioner is said to have purchased 30 guntas out of the said land from Keshava Murthy, as on 4.9.1995. Thereafter the revenue documents were said to have reflected the same.
The petitioner is said to have sold 9 guntas of the said land in favour of one Pusnpa Hadali, as on 2.4.1997. He had continued to retain the remaining extent of 21 guntas of land. At this juncture, one Mallamma, claiming to be the widow of Lingegowda, is said to have laid claim to 1 acre and 15 guntas of land bearing survey no. 12/1 of Kereguddadahalli. In this regard, she is said to have instituted multiple proceedings, including a civil suit for permanent injunction, in OS 1367/2008 on the file of the City Civil Court, Bangalore. The said suit, which was contested, was said to have been ultimately dismissed on merits.
The said Mallamma is then said to have filed a private complaint against the petitioner and four others, before the Special Judge for cases under the Prevention of Corruption Act, as on 31.10.2011, through the second respondent, said to be her son-in-law, as her power-of-atterney holder. It was alleged that the petitioner and others had committed offences punishable under Sections 9, 10 and 13(1)(d)(ii) of the Prevention of Corruption Act, 1988, (Hereinafter referred to as the 'PC Act', for brevity) read with Sections 464,468,471 read with Section 120-B of the Indian Penal Code, 1860 (Hereinafter referred to as the 'JPC', for brevity). The said court had directed investigation of the case by the Lokayuktha Police. The petitioner was a member of the Karnataka Legislative Assembly as on the date of the complaint. A case was said to have been registered in Crime no.55/2011.
The petitioner is said to have challenged the institution of the said proceedings before this court in a petition in Criminal Petition no.6358/2011. The same was said to have been disposed of, as on 30.1.2013, on the note that during the pendency of the same - the investigation in the criminal case had been completed and on the basis of the final report, the court below had taken cognizance and had issued process against the petitioner. It was also held that the petitioner had not questioned in the petition, an order said to have been passed by the Speaker of the Karnataka Legislative Assembly according permission for filing of the final report, as well as the charge sheet filed in the case.
This petition is hence filed to challenge the further proceedings that have resulted in the issuance of process against the petitioner.
3. The learned Senior Advocate, Shri C.V.Nagesh, appearing for the counsel for the petitioner contends as follows.
The mother-in-law of the second respondent, Smt.Mallamma, who is said to be the aggrieved person, had earlier approached the Lokayukta with the same complaint that is filed before the court below. The Lokayutha, on an investigation of the matter, had, by an order dated 22.6.2008, is said to have arrived at a positive finding that there did not appear to be any nexus whatsoever as between the office which the petitioner held and the acts allegedly committed by him. It was further said to have been held that the complainant could agitate her grievance before the jurisdictional Revenue authorities, in relation to the land in respect of which the controversy was raised and that the complaint before the Lokayuktha was misconceived. It is hence contended that the entertainment of the same complaint by the court below in the face of the order passed by the Lokayuktha is inexplicable and results in grave prejudice to the petitioner. It is contended that the principle of res judicata is squarely attracted and hence the proceedings are an abuse of process and has resuited in a miscarriage of justice.
It is further contended that the court below has remained oblivious to the glaring circumstance that the complainant and his mother-in-law had not established any semblance of a right over the land in question and Mallamma had been unsuccessful in establishing that she was either the owner nor was she even in possession of the land in question, in civil proceedings.
It is contended that the allegations in the complaint, even if uncontroverted, would not make out any offence allegedly committed by the petitioner and which would be punishable under the provisions of the PC Act. As a result, the court below lacked the jurisdiction to consider the case notwithstanding allegations of offences punishable under the provisions of the IPC.
It is hence contended that the impugned order be set aside.
4. The learned counsel Shri S.K.Venkata Reddy appearing for the petitioner in the second of these petitions would contend that the petitioner was working as the Special Tahshildar, Bangalore North Taluk, at the time of the alleged commission of the offence. He is arrayed as accused no.2. It is pointed out that Mallamma's claim to the land measuring 1 acre and 15 guntas, in land bearing survey no. 12/1 of Kereguddadahalli, is by virtue of the same having been notified and acquired under the Urban Land Ceiling Act, 1976 (hereinafter referred to as the 'ULC Act' for brevity) in the year 1984 and the proceedings initiated by her having culminated in an appeal before a Division Bench of this court in WA 2006 where by she was granted the benefit of the ULC Repealing Act 1999. And accordingly her name was entered in the revenue records overruling the objections of Accused nos.4 and 5, who were private parties.
It is further stated that one Nagaraju, who had 1 acre of land is said to have sold 8 guntas of land to one Shivanna and 20 guntas of land to one Ganganna. Both the sale transactions were said to have been made on 12.11.1970. In spite of having sold the land as aforesaid, Nagaraju is said to have fraudulently sold another 1 acre, instead of the 12 guntas that he had retained, to one Keshavamurthy, who, in turn, is said to have sold 30 guntas to Muniraju, the petitioner in the first of these petitions. Muniraju in turn, had sold 9 guntas of land to one Pushpa Haladi
Thereafter, Muniraju had sought for rectification in the revenue records in respect of 21 guntas of the land, in his favour. The Revenue Inspector is said to have kept the matter pending as the details furnished did not tally. It was alleged that Muniraju had used his influence as an MLA and had got the said Revenue Inspector transferred and in collusion with the incumbent who replaced him, namely, Accused no.3, had got the revenue entry made in his favour. He had then formed sites and sold the entire extent. And again claimed to have sold further extents, which he never had in his possession. And that he had used his influence further to again get the revenue entries made in favour of Accused no.4 and 5 And that they continue to resist Mallamma's claim to have the revenue entries restored in her favour.
Thus, Accused nos.1 to 3, being public servants, had in conspiracy with Accused nos. 4 and 5, sought to deprive Mallamma of her land.
Shri Reddy would point out that after investigation by the police on the basis of the complaint, apparently there was no material found against Accused nos. 4 and 5 and they have not been charge sheeted. Hence, it is contended, this circumstance is itself sufficient to falsify the allegation of conspiracy by this petitioner
It is further contended that the Charge Sheet categorically records that there was no material available to indicate that Mallamma was the owner of the land in question. It is also recorded that there was no lead to investigate the allegation of Accused nos. 1 to 3 having cheated Mallamma, as she had not produced any document of title in respect of the property. It is pointed out that the Charge sheet also refers to the civil suit by Malamma and it is shown to be pending. The fact that the said suit was subsequently dismissed was apparently not known to the Investigation Officer (IO).
It is contended that the first respondent has exceeded his brief in conducting the investigation In that, the reasoning of the 10 in asserting the alleged conspiracy between Accused no.1 to 3 is with reference to a letter dated 30.10.2009 written by Accused no.2 to the Assistant Commissioner seeking approval of mutation entry to be made in favour of Accused no.1 and on the basis of the conditional approval given by the Assistant Commissioner, Accused no.2 having made Accused no.3 delete the reference to an order of injunction granted in the civil suit of Mallamma and even before the said injunction order was vacated, to have caused the mutation entry in favour of Accused no.1
It is pointed out that the letter written by the petitioner to the Assistant Commissioner only narrated the existing circumstances, it did not recommend or confirm the title of Accused no.1 and thereafter upon receiving the approval of the Assistant Commissioner, has proceeded in accordance with law. Hence, it is contended that there are no ingredients present to constitute an offence punishable under Section 120-B or Sections 13(1)(d) read with Section 13(2) of the PC Act. He has neither abused his position as a public servant nor obtained any pecuniary advantage for himself or any other person. There are no such allegations either.
It is further pointed out that the several parcels of land said to have been sold by Accused no.1 in favour of 13 individuals not being reflected in the RTC is also not relevant, as it is claimed that no intimation of the registration of sale deeds was received in the Tahshildar's office.
It is emphasized that the charge sheet consists of the statements of 41 witnesses and 21 witnesses, of whom the statement of the Assistant Commissioner, CW 3 and an erstwhile Sheristedar, CW-37 are the only persons who have mentioned the petitioner. Both these statements do not contain any incriminating material that could point to the commission of any offence alleged. Therefore, the learned Counsel seeks that the pending proceedings against the petitioner before the court below be quashed
5. The learned Special Public Prosecutor Shri Venkatesh Dalwai, appearing for the second respondent in the first of these petitions, would contend as follows.
That the petitioner has sought that the charge sheet in Spl.C.No. 136/2012 pending before the jurisdictional court be quashed. The petitioner has appeared in the court below and has been furnished free copy of the entire charge sheet along with 174 documents collected during the investigation along with statement of 40 witnesses and in all 5 books from Volume No.1 to 11. The petitioner has not produced the entire charge sheet materials and therefore, the petition is liable to be dismissed.
Respondent no.1 has collected the above documents during the course of investigation which copy is not given to respondent no.2. It is contended that the petitioner since questioning the charge sheet on the premise and allegations that reading of the entire charge sheet does not disclose any offence alleged then it is for the petitioner to place the entire charge sheet, documents and statement of witnesses to demonstrate the same. The non-production of the entire material collected by respondent no.1 amounts to suppression of fact and documents and also amounts to playing fraud on the court.
It is contended that the complainant's mother-in-law Mallamma is the absolute owner of agricultural property bearing Survey No.12/1 to an extent of 1 acre 15 guntas of land situated at Kereguddadahalli village, Chikkabanavara, Yeshvanthapura Hobli, Bangalore North Taluk. It is contended that the schedule property was notified under the ULC Act, by the Government of Karnataka and Smt. Mallamma was asked to file the declaration in the year. Accordingly, Mallamma had filed the declaration before the authority on 13.9.1976, constituted under the ULC Act. From j 976 onwards, Mallamma is indicated to be the wife of late Patel Linge Gowda.
It is contended that after the repeal of ULC Act, by Act of 1999, this Court in W.A.No.1/2006, by its order dated 25.7.2006, was pleased to allow the appeal and held that, Smt.Mallamma was entitled to the benefit of Urban Land Ceiling (Repealed) Act 1999.
It is contended that from the year 1979, till the order of the Division Bench, the entire records indicated that Smt. Mallamma, wife of Patel Linge Gowda was owner of the Property and the same was notified under the ULC Act.
It is contended that accused no.1, who claims to be the owner of 30 guntas (32670 square feet) of land, formed a revenue layout by fabrication of a layout plan and sold the sites to various purchasers from the year 1995 to 1997 1998 to an extent of 65613 square feet, which is nearly in excess of 30 guntas of land, which he never possessed.
It is contended that after the order of Division Bench in W.A.No. 1/2006, when the mother-in-law of complainant made request for mutation of her name, the petitioner/accused no.1, who was by then the Member of Legislative Assembly made an application to enter his name for 21 guntas by suppressing all previous sale deeds executed between 1995 to 1998. The investigation revealed that accused No.1 wrote to the Tahsildar and the Assistant Commissioner by letters dated 4.8.2008, 26.2.2009 and 28.8.2009 to enter his name. It is contended that from the year 1995 or 1998 till 2008, that is nearly for a decade, the accused No.1 never got the mutation in his favour. It is only after the order of division bench, in order to grab the property of Mallamma, accused No.1 hatched a conspiracy with other revenue officials to take over the property by abusing his position as MLA of the then ruling party of the State Government. Accused No.1 was successful in getting the mutation done in conspiracy with other officials on 23.11.2009 in M.R.No.5/2009-10. Respondent No.1 filed a charge sheet under Section 13(1)(d)(ii) read with Section 120-B and 420 of the IPC.
It is contended that the petitioner in Criminal Petition No.5438/2012, was in criminal conspiracy with accused no.1 to favour him by abasing his official position had entered the name of accused no.1 Accused no.2, in spite of the injunction order of a Civil Court in O.S.No. 1367/2008 which was duly entered in the revenue records, removed the entry of injunction order as if it was vacated and entered the name of accused no.1 on 23.11.2009. Accused No.1 herein manipulated the entry of injunction order in the records only with view to enter the name of accused no.1 to an extent of 21 guntas. The Act of accused no.1 clearly indicates that he has abused his position to favour accused No.1 But for the fact accused no.1 being MLA, the accused no.2 would not have manipulated the records.
It is contended that O.S.No. 1367/2008 was not between accused no.1/petitioner herein and Mallamma or the complainant and therefore, the petitioner cannot place reliance on it. Further, the suit in R.A.No.237/2012 is pending consideration and hence the judgment in O.S.No 1367/2008 has not attained finality.
It is contended that under Section 216 of CrPC, it is for the jurisdictional court to decide under which Section the petitioner is to be prosecuted and hence this Court cannot examine the applicability of a particular Section of offence, it is essentially the function of the court below, as is the law laid down by the apex court. Hence, the petitioner will have to urge these grounds before the court below either at the sage of discharge or framing of charge.
It is contended that the petitioner has tried to indicate that entire controversy is in the nature of a civil dispute. It is contended that in Vijayander Kumar vs. State of Rajasthan, 2014 AIR SCW 1197, the apex court has held that merely because civil disputes are pending, that itself is not the ground to quash the criminal proceedings. It is contended that in civil and criminal proceedings the end results are different and both are not dependent on each other or the outcome.
It is contended that the petitioner is trying to claim that Section 13(1)(d) of PC Act is not applicable to him as it is not alleged that mutation was done in his official capacity and it is not his function. However, Section 13(1)(d) is not relatable to discharge of his official duty. On the other hand, if a public servant abuses his office to secure a favour to himself or for any other person, itself is an offence under Section 13(1)(d) of the Act. It need not be connected to his official exercise of powers. This view has been taken by a five Judge Bench in case of Dhaneshwar vs. Delhi Administration, AIR 1962 SC 195 .
It is contended that the learned judge has taken cognizance for the offences punishable under Section 120-B, 464, 468 and 471 of IPC read with Sections 9, 10 and 13(1)(d) of P.C.Act. It is submitted that learned Special Court was justified in taking the cognizance for the said offences even though certain provisions were not included in the Charge Sheet by the first respondent. The nature of order indicates due application of mind and the magistrate need not be bound by the final report. The mode adopted by the learned Special Judge is expected from the court and is approved by Apex Court in 2015(8)SCC 774.
It is contended that once investigation was ordered, then it is the mandate of the police to investigate all such offences including the offences and facts disclosing the offences connected with the accused. There is no prohibition in law for such investigation nor does it amount to making out a new case for the complainant. It is contended that it is the duty of the police to unearth and filter unwanted allegations and find out the evidence which indicates culpability of the accused. In such process, even police can alter the persons based on the evidence collected while filing final report under 173 of CrPC.
It is contended that while issuing summons to accused, the Special Judge is not expected to write a detailed order like an order of discharge, or conviction. At the stage of summons being issued, minimum scrutiny is required as held by the Apex Court in Vijayander Kumar vs. State of Rajasthan, 2014 AIR SCW1197. The application of mind is only for the purposes of taking cognizance and summons. Hence, it is contended that the Special Court was justified in issuing summons.
It is contended that the apex court has laid down certain guidelines in case of vinod Raghuvanshi vs. Ajay Arora, reported in 2013 AIR SCW 6660 and also in Amit Kapoor v.v Ramesh Chander, 2012 (9) SCC 460. Hence, the petitioner has got an opportunity to avail the remedy of discharge as the court below will have benefit of examining the entire records including the documents and statement of witness which is not produced before this court. Hence, it is contended that the petition is liable to be dismissed.
It is further contended that the facts and the grounds urged indicate disputed question of facts, which is essentially the function of the court below. This Court under 482 CrPC cannot examine and record any finding with reference to innocence or otherwise of the petitioners herein.
6. The learned Special Public Prosecutor Shri Venkatesh Arabatti, appearing for the respondent in the second of these petitions, would also canvas arguments, to point out that the criminal case would have to run its course and the petitioner could at best, seek discharge even if there are any infirmities which could be pointed out with reference to the record that would entitle the petitioner to seek such relief and which the trial court is in a better position to examine.
7. In the light of the above rival contentions, it may indeed be said that this court does not mechanically invoke its jurisdiction under Section 482 of the CrPC and is bound to act within certain limits, which are in terms of well settled principles.
In the above petitions filed by accused no.1, who is said to be an MLA and accused no.2 , who was working as a Special Tahshildar, at the relevant point of time, are accused of offences punishable under the FC Act, on account of being public servants at the relevant time.
The first glaring circumstance that is evident and which is not in dispute, is the fact that mallamma, who is said to be the aggrieved party, had approached the Lokayuktha, alleging the very facts and circumstances, as are averred in the present complaint before the court below, in a complaint of the year 2009. That complaint is shown to have been turned down and the investigation discontinued, as it was found that the complainant's remedy lay before the Revenue authorities. In view of this, a question arises as to whether the court below could have, at the instance of the present complainant, who is said to be the son-in-law of the same Mallamma, the earlier complainant and whose grievance is being ventilated, proceeded to direct investigation of the case and there after rake cognizance on receipt of the charge sheet submitted and issue process against the accused, while ignoring the opinion formed by the Lokayuktha. It may be that the earlier proceedings before the Lokayuktha was not brought to the attention of the court below and even the investigating officer. There is no explanation forthcoming in this regard, from the learned Special Public Prosecutor.
The next glaring circumstance that is present, is the fact that there is no dispute that the charge sheet itself indicates that there are no material documents produced to demonstrate the ownership and title of Mallamma, to the land in question. There are assertions of several sale deeds, executed by the predecessor-in-title of the petitioner in the first of these petitions and the said petitioner himself, which are claimed to be ah initio void and fraudulent. In the absence of clear title held by Mallamma being demonstrated, a trial being conducted on the premise that there are several registered sale deeds which are claimed to be questionable, would have the resultant effect of the said sale deeds ultimately being declared as void in criminal proceedings. This is further confounded by the fact that though there are allegations of over a dozen third parties having been defrauded by the execution of the said sale deeds by Accused no.1, there is no indication that even a single individual among those victims has chosen to take any action either civil or criminal, over the years. This is odd. And those alleged victims are said to have made statements to the Investigating Officer, which are appended to the charge sheet. In the absence of any direct complaint as regards those sale deeds, a finding of guilt as regards mutation entries illegally made on an alleged conspiracy as between Accused no.1 to 3, would require the trial court to adjudicate on a host of issues including the extent of land involved, the title to the same, the validity of sale deeds executed in respect of various parcels thereof, the tenability of the claim of the complainant or his mother-in-law to the land in question. This exercise is totally unwarranted. The said Mallamma has not even chosen to establish her title to the land in appropriate proceedings. The only proceedings pending remotely in support of her case in respect of title, is an appeal preferred against the dismissal of her suit for permanent injunction. Where she has even suffered a finding that she had not established her status as the widow of the erstwhile owner under whom she had claimed the property. It is seen that the Charge Sheet proceeds on the basis that Mallamma has been recognized as the owner of the land in question in proceedings under the ULC Act, which has been affirmed in the writ appeal in WA 1/2006 and consequently, any claim by accused no.1 or others in respect of the same could only be fraudulent and by a further exercise of deduction as to the extent of land available and the extent of land sold under various sale deeds, has concluded that the transactions were fraudulent and to the detriment of Mallamma. However, the circumstance that the Lokayuktha was also made aware of
the very circumstance that Mallamma had been conferred the benefit of the repealing Act by a Division Bench of this court in the appeal in WA 1/2006, and notwithstanding the same, it was opined that the remedy of Mallamma was by recourse to other proceedings and not by way of criminal proceedings, has been glossed over or has not been addressed. Even now, there is no endeavour to reconcile these divergent opinions.
Given the above infirmities, the nicety of the court below being in a position of further course correction as to the appropriate provision of law under which charges could be framed and the contention that the petitioners ought to take their chance of being absolved, at the time of hearing before charge, is an empty formality. Hence, the reference to Section 216 or the decision of the Apex Court in Ghansham Sharma v. Surendra Kumar Sharma, (2014) 13 SCC 401, is of no avail.
The further legal contention that the pendency of a civil dispute would not preclude criminal proceedings or that the end result of the two proceedings being different or that both are not dependant on each other, is concerned, in the present case on hand, there is no established civil right of the complainant or his mother-in-law. There is no civil dispute pending which would determine any such right with any degree of finality. The criminal proceedings are instituted in a vacuum and may possibly result in civil rights being conferred by proxy as it were, in view of the assumptions on which the criminal proceedings are instituted by the complainant and entertained by the court below, albeit these infirmities. The facts and circumstances are not such that both civil and criminal liability is attracted as in the case of Vijayendra Kumar v. State of Rajasthan, 2014 AIR SCW 1997, which is cited in support of the above propositions which are not relevant for the case on hand.
Further, the allegation of having engineered fraudulent mutation entries as against the petitioners is wholly irrelevant at the instance of the complainant, in the absence of an established claim to ownership by Mallamma. This is the primary error in the approach of the Investigating Officer in submitting the Charge Sheet and in the court below accepting the same and having taken cognizance of the alleged offences and having issued process against the accused.
The contention that at the stage of issuing summons, it is only a minimum scrutiny that is expected of the court, cannot be implied to mean that the court can overlook glaring circumstances that would not make out a case as suggested by the complainant. When the court below has already failed in its duty to examine the bare details, which would indicate that there is no case made out against the accused, the indignation expressed over the seeming fraud on the part of accused no.1 on analysis of records and documents, to which the complainant or his mother-law were not privy and the parties to those documents not seeking to raise any controversy over the same, would result in pure adventurism on the part of the prosecution in alleging a conspiracy against the petitioners, while having thought it fit to drop Accused no.4 and 5 from the proceedings, when they are in fact holding the portion of land claimed by Mallamma.
In the result, the petitions are allowed and the impugned proceedings are quashed.