But here is a case where somebody on behalf of the complainant goes to the office of the Investigating Officer and is provided with a spy video camera on 15.11.2012. For the first time, the complainant meets the petitioner on the very same day and the said meeting is recorded in the camera. On 16.11.2012, FIR is registered by translating the prior events in chronological order. In the entrustment mahazar carried out subsequent to registration of the case on the very same day, the spy camera is seized after transferring its audio and video contents to a Laptop. The contents are incorporated in the entrustment mahazar. The investigation is proceeded by successfully trapping the second accused along with tainted currency notes. It is not just on the material gathered from the spy camera the prosecution case rests, but also on the information brought in the written complaint by the complainant. When the information disclosed a cognizable offence, the S.H.O. had no other go except to register the FIR as per mandate of Section 154(1) of Cr.P.C. The petitioner was conscious about the progress of the investigation, twice he withdrew petitions filed under Section 482 of Cr.P.C. without assigning any reason and at the fag end, opted to file the present petition. It cannot be said that the S.H.O. of the Police Station ought to have registered the case on 8.9.2011 itself when CW-2/Sunil Kumar, the friend of the complainant approaches him with the hearsay information. As such, there is no direct material from the video of the spy camera against the petitioner. It is the totality of the allegation made against him by the complainant in the complaint that definitely discloses commission of cognizable offence, which was bound to be registered and which is done also. The entrustment mahazar being a pre-trap mahazar purported to be a preparation to trap the accused person, I do not feel, by allowing the spy camera with the complainant, the Investigating Officer has commenced investigation even before registration of the case.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Writ Petition No. 20394 of 2013 (GM-RES)
Decided On: 19.02.2016
M.R. Hiremath Vs.The State of Karnataka and Ors.
Hon'ble Judges/Coram:Rathnakala, J.
Citation:2016 CRLJ(NOC)312 KAR
1. The petitioner is aggrieved by the action of the Lokayuktha Police in registering the case against him under Sections 7 and 8 of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act' for brevity) by arraying him as the first accused. Subsequently on completion of the investigation, the Investigating Officer has filed charge sheet also in respect of the offence under Sections 7, 8, 10, 13(i)(e) and 13(2) of the Act. Since the charge sheet was filed during the pendency of the petition, the petitioner got amended his petition seeking the relief for quashing the charge sheet. However, subsequently Sri Krishna S. Dixit, learned Counsel for the petitioner made a submission that he restricts his prayer only to the extent of quashing of the FIR.
2. The allegation of the prosecution is, Petitioner works as an Assistant Commissioner, Bangalore Development Authority, Central Office, Bangalore; the land belonging to the mother of the complainant/2nd respondent and a relative of the complainant in Sy. No. 102/2 measuring 23 guntas and 102/1 measuring 27 guntas, totally 1 acre 10 guntas was acquired for developing Arkavathi Layout. The land owners submitted application to de-notify their lands from acquisition. The second accused/N.R. Ramesh is an Advocate, who was acting as the Agent of the first accused; the complainant approached the second accused along with his friend Sunil Kumar/CW-2. The second accused demanded gratification of Rs. 20 lakhs to place the file of the complainant before the De-notification Committee. However, on the request of the complainant, came down for Rs. 16 lakhs and demanded advance amount of Rs. 5 lakhs. The complainant approached the petitioner/first accused in his office on 15.11.2012 at 8.30 p.m. along with accused No. 2. Petitioner consented for Rs. 20 lakhs as expressed by accused No. 2, thereby demanded illegal gratification for carrying out official work and abetted accused No. 2 to receive bribe money on his behalf. While accused No. 2 was receiving Rs. 5 lakhs advance amount of bribe money as agreed before, he was caught red-handed on the evening of 16.11.2012 in a Hotel.
3. Sri Krishna S. Dixit, learned Counsel for the petitioner submits that, the petitioner is a K.A.S. Officer of 1986 batch and has put in about 30 years of blemishless service. Because of the registration of the case, his promotional opportunity is freezed. The complainant is not the owner of the lands, which are sought to be de-notified by the owners. As per the complaint allegation, the complainant suspected that accused No. 2/N.R. Ramesh would demand money and therefore, had deputed his friend Sunil Kumar to Lokayuktha Office on 8.11.2012 and a Spy Camera was handed over by the Lokayuktha Police to Sunil Kumar for recording the conversation between him and accused No. 2; complainant met accused No. 2 on 12.11.2012 and 13.11.2012. During the interaction, accused No. 2 had agreed to receive Rs. 16 lakhs gratification on the very same night of 13.11.2012; the complainant met the petitioner in his office but the Spy Camera did not work since the battery had drained out. The conversation between accused No. 2 and the petitioner on 15.11.2012 pertains to betterment charges in respect of some other lands of the same extent. The amount mentioned in the conversation was with regard to the statutory betterment tax approximately worked out as per Sections 22 and 23 of the B.D.A. Act. There is absolutely no conversation between the complainant and the petitioner.
Sri Krishna S. Dixit continues, in the said conversation, there is no mention of survey numbers and village pertaining to the property of the mother and cousin of the complainant and also there is nothing about de-notification. Learned Counsel further adds that, though it is alleged in the complaint that complainant's friend Sunil Kumar had carried a spy camera given to him by the Lokayuktha Police while meeting second accused, said conversation of 8.11.2012 is not recorded. That apart, conversation of accused No. 2 with the petitioner on 12.11.2012 and 13.11.2012 is also not recorded on the pretext that the battery of the spy camera had drained out, but it is not a plausible explanation. The story woven by the complainant creates doubt about the credibility of the complainant so also the Investigating Officer. In fact, the jurisdictional S.L.A.O. after spot inspection had recommended for de-notification, but it was the petitioner, who disagreed with the said recommendation and recommended against de-notification pointing out the reason to the B.D.A. Committee, since de-notification if ordered, it would adversely affect the layout development. This generated the animosity and the complainant hatched a plan to falsely implicate the petitioner. The notes maintained in the office of the petitioner disclose that he had recommended against de-notification. This is a case which falls within the specific postulate made by the Supreme Court in State of Haryana and Others vs. Bhajan Lal and Others reported in MANU/SC/0115/1992 : 1992 Supp (1) SCC 335. There is a ruling of this Court in the case of Sri Ramesh Desai and Another vs. The State of Karnataka by Raichur Lokayuktha P.S. reported in 2012(3) KCCR 1738 whereby it was held "recording of conversation for demand of bribe does not constitute preliminary enquiry rather it amounts to collecting of evidence applies to the present case". As held by this Court in Girishchandra vs. The State by Lokayuktha Police reported in MANU/KA/0631/2013 : ILR 2013 KAR 983 (DB), in all trap cases, it is just and necessary that recording of the complaint/registration of crime and submission of the FIR to the jurisdictional Court before embarking upon the protocol of raid is mandatory. The said judgment is followed in the later case of Sri Ratnakar Shetty vs. State through Lokayuktha Police and Another in Criminal Petition No. 2812/2013 DD 3.12.2015. The inner voice of the judgment of the Apex Court in Lalita Kumari vs. Government of Uttar Pradesh and Others reported in MANU/SC/1166/2013 : (2014) 2 SCC 1 does not militate against the ratio of Ramesh Desai's case. The collection of evidentiary material is necessarily to be treated as investigation and not a preliminary enquiry in the light of the judgment of the Apex Court in H.N. Rishbud and Another vs. State of Delhi reported in MANU/SC/0049/1954 : AIR 1955 SC 196. In the light of the above judgment, the realm of investigation begins after the preliminary enquiry ends. The preliminary enquiry is intended to avoid unnecessary harassment to citizens and also to ensure that public time and money is not unworthily spent. The case of the prosecution is fraught with huge anomalies. The prosecution in order to establish the guilt of the accused has to prove the four important ingredients i.e., (1) he has a role to play in accomplishing the job involved; (2) for doing the said job which was yet to be done, he had demanded money or favour; (3) he has received the money and (4) such money is recovered from his possession. All the above four ingredients since absent against the petitioner, the case registered against the petitioner is liable to be quashed.
4. In reply, Sri Venkatesh P. Dalawai, learned Special Public Prosecutor for the respondent/Lokayuktha submits that, this is a third petition moved before this Court by this petitioner. After completion of investigation, charge sheet is filed on obtaining sanction to prosecute the petitioner. Now the stage before the Trial Court is to hear before charge. The primary ground urged by the petitioner in this petition is, before registration of the first information report, investigation started as soon as the spy video camera was handed over to the complainant on 15.11.2012, it was a part of discreet preliminary enquiry to gather proper information regarding commission of cognizable offence. The meeting of the complainant with the second accused is seen in the video recording while demanding illegal gratification on 15.11.2012. The FIR was registered on 16.11.2012 and pre-trap panchanama/entrustment mahazar was conducted on the very same day. On the very evening of 16.11.2012 on the instructions of second accused, complainant met him at Coffee Day Café near M.E.S. College, Malleswaram, Bangalore. In the video camera, the action i.e., complainant handing over Rs. 5 lakhs to the second accused as a part of demanded illegal gratification is recorded, which money was to be paid to the petitioner as per the demand of the petitioner dated 15.11.2012. The petitioner filed a petition on 10.12.2012 under Section 482 of Cr.P.C. in Criminal Petition No. 7562/2012 D.D. 26.2.2013 seeking quashing of the entire proceedings. However, he withdrew the petition on 26.2.2013 without seeking any liberty. On 4.3.2013, he files one more petition in W.P. No. 11252/2013 for the same relief on the very same ground by quoting Ramesh Desai's case. The writ petition was the verbatim reproduction of the earlier Criminal Petition No. 7562/2012. On 13.3.2013, after arguing at length, the petitioners sought to withdraw the petition with liberty to take such course of remedy in law. On 6.5.2013, present petition is filed for the same relief with same grounds. On 29.12.2013, charge sheet was filed to the Court and cognizance is taken. On 20.8.2013, he got amended the prayer column without changing the substance of grounds in the body of the petition.
Learned Special Public Prosecutor further submits that, as recorded in the spy camera, the petitioner and the second accused had spoken about the bribe amount only in respect of de-notification of the land acquired by the Bangalore Development Authority. The very fact that, the entry was refused to the complainant when he wanted to meet the petitioner but subsequently he was allowed to the chamber when accompanied with the second accused on 13.11.2012 and 15.11.2012 shows that the second accused was acting as middleman to the petitioner. During investigation on 17.11.2012, petitioner's office was subjected to search in the presence of Panchas and BDA Officers. Original documents pertaining to de-notification of lands as per the direction of the judgment of the High Court in W.A. No. 2624/2005 and 2625/2005 dated 25.11.2015 were recovered from his table. There are entries to show that the file was received in the office of the petitioner on 2.3.2012 and the same was returned to the Land Acquisition Section on 12.9.2012 without any remarks by the petitioner. The very physical availability of the file in the table drawer of the petitioner shows that he intended to keep the file with him for the reasons best known to him. The statements of the witnesses/officials of B.D.A. show that he had kept the file illegally even though entries in the file were otherwise. There is not even a single entry to show that the file was placed before the Board for final decision. When he is contending that he had moved all the files relating to de-notification of acquired lands of entire Arkavathi Layout on 13.10.2012, how come the above file relating to de-notification of Arkavathi Layout was available in his drawer? During the trap proceeding, he has given his defence statement but has not mentioned anything about the movement of files from his office. If he had moved all the files, he could have easily told the complainant to go to the other office wherever the file was available, instead he has chosen to demand bribe amount through his middleman/accused No. 2.
Sri Venkatesh P. Dalawai further submits, petitioner mainly relies on the judgment of this Court in Ramesh Desai's case (supra) stating that handing over the voice recorder amounts to collection of evidence. But the facts between the present case and Ramesh Desai's case differ. That was a case where the absence of sanction was quoted as one of the reasons to quash the proceedings. That apart, the report secured from the FSL indicated that voice recorded conversation did not match the voice samples and the complaint was filed with mala fide intention. Hence, the petitioner cannot take the benefit of Ramesh Desai's case. The Apex Court in Lalita Kumari's case (supra) held that, the Police have power to do preliminary enquiry in corruption cases. The entrustment of the Recorder prior to registration of FIR does not amount to collection of evidence in corruption matters as per the judgment of this Court in Criminal Revision Petition No. 187/2014 and connected case D.D. 26.6.2014 (Sri N. Rajanna vs. State of Karnataka by Lokayuktha Police); making discreet enquiry and collection of information about the offence before registration of the case by the Investigating Officer will not vitiate the proceedings as the accused is not aware that such discreet enquiry was being carried out. The accused must establish the prejudice caused to him by such discreet enquiry during the trial. In the light of the judgment of the Apex Court in MANU/SC/0066/1963 : AIR 1964 SC 221 in the matter of State of Uttar Pradesh vs. Bhagwant Kishore Joshi, illegality or irregularity will not vitiate the proceedings. A provision is made in the Code of Criminal Procedure as to which irregularities vitiated and which do not vitiate (MANU/SC/0033/1956 : AIR 1957 SC 142). The Apex Court in the matter of State of Rajasthan vs. Dr. Rajkumar Agarwal and Another reported in MANU/SC/0670/2012 : 2012 AIR SCW 5362, bestowed the complaint in respect of the offence under the P.C. Act though one of the contentions was, FIR was registered after recording the voice of the accused while demanding bribe. Hence, the writ petition is liable to be dismissed.
5. In the light of the above rival submissions and also the prayer having been restricted by the petitioner only to the extent of seeking quashing of registration of the FIR, the pivotal question would be about the legality/sustainability of the FIR registered against the petitioner.
6. Let us commence from the premise of Section 154(1) of Cr.P.C., which mandates registration of the FIR as soon as information relating to commission of a cognizable offence is given orally to the officer in-charge of the Police Station. Section 154(1) of Cr.P.C. reads thus:
"154. Information in cognizable cases.-(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:
............"
7. In the case of Lalita Kumari (supra), rigidity was relaxed to certain extent by allowing preliminary enquiry in certain circumstances. The Apex Court at para-120 observed thus:
"120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputesThe aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Dairy is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must be reflected, as mentioned above".
8. As noticed supra, divergent views are taken regarding recording of the voice of the accused prior to registration of the case. The Apex Court in the matter of Dr. Rajkumar Agarwal (supra), though noticed that the voice of the accused while demanding the bribe was recorded did not touch upon the legality or otherwise of such voice recording. In Criminal Petition No. 3750/2013 D.D. 11.2.2016 in the matter of Sri Lakshmikantha S.G. vs. The State by Karnataka Lokayuktha Police and Another (authored by me), the transcription of the voice recording of the accused prior to registration of the case since was incorporated in the trap mahazar, was held as vitiating the further investigation. But here is a case where somebody on behalf of the complainant goes to the office of the Investigating Officer and is provided with a spy video camera on 15.11.2012. For the first time, the complainant meets the petitioner on the very same day and the said meeting is recorded in the camera. On 16.11.2012, FIR is registered by translating the prior events in chronological order. In the entrustment mahazar carried out subsequent to registration of the case on the very same day, the spy camera is seized after transferring its audio and video contents to a Laptop. The contents are incorporated in the entrustment mahazar. The investigation is proceeded by successfully trapping the second accused along with tainted currency notes. It is not just on the material gathered from the spy camera the prosecution case rests, but also on the information brought in the written complaint by the complainant. When the information disclosed a cognizable offence, the S.H.O. had no other go except to register the FIR as per mandate of Section 154(1) of Cr.P.C. The petitioner was conscious about the progress of the investigation, twice he withdrew petitions filed under Section 482 of Cr.P.C. without assigning any reason and at the fag end, opted to file the present petition. It cannot be said that the S.H.O. of the Police Station ought to have registered the case on 8.9.2011 itself when CW-2/Sunil Kumar, the friend of the complainant approaches him with the hearsay information. As such, there is no direct material from the video of the spy camera against the petitioner. It is the totality of the allegation made against him by the complainant in the complaint that definitely discloses commission of cognizable offence, which was bound to be registered and which is done also. The entrustment mahazar being a pre-trap mahazar purported to be a preparation to trap the accused person, I do not feel, by allowing the spy camera with the complainant, the Investigating Officer has commenced investigation even before registration of the case. The oral allegation and the supporting materials placed by the complainant have culminated in registration of the complaint. Thereafter, the Investigating Officer has investigated the matter and formed opinion to file his final report and the Court is also said to have taken cognizance of the offence. I do not find any illegality in registration of the case. Though a contention was taken by the petitioner that the Lokayuktha Police have no jurisdiction to register the case under the Prevention of Corruption Act, at the time of argument, such contention is not pressed. The irregularities pointed out during investigation cannot be counted upon in view of the fact that petitioner is restricting his claim only on illegality of registration of the FIR. Now the matter since is before the Trial Court, the petitioner has to work out his remedy for discharge before the Trial Court only, if so advised. When an alternative remedy is provided under the Code of Criminal Procedure, this Court usually refrains from exercising jurisdiction under Section 482 of Cr.P.C.
For the discussion supra, the petition is rejected.
All the contentions are kept open.
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