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Sri Ramesh Desai And Another v. The State Of Karnataka By Raichur Lokayukta P.S .

Karnataka High Court

Jul 7, 2011

Judgment

Subsequent
References

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Smart Summary (Beta)

Structured Summary of the Opinion (K. Sreedhar Rao, J.)

Factual and Procedural Background

The complainant, Arasappa, was serving as a Second Division Assistant (SDA) in the Tahsildar's office at Sindhanoor. Petitioner No. 1 was the Tahsildar and Petitioner No. 2 an FDA in the Establishment Branch. On the report of Petitioner No. 1, the complainant was deputed to work at Nada Kacheri in Jawalagera; the complainant found this posting inconvenient. The deputation could be cancelled only after a further report by the Tahsildar to the Assistant Commissioner.

The complainant alleged that on 09.10.2007 and again on 11.10.2007 the petitioners demanded money to cancel the deputation and to secure a festival advance: Petitioner No. 2 allegedly demanded Rs. 10,000 for Petitioner No. 1 and Rs. 500 for himself; during the subsequent meeting Petitioner No. 1 allegedly agreed to do the favour for Rs. 5,000 and Rs. 500 to Petitioner No. 2. The complainant refused to pay and lodged a complaint with the Lokayuktha police on 15.10.2007.

The Lokayuktha police organized a trap: the complainant (assisted by two witnesses CW2 and CW3 and panch witnesses) attended meetings with the petitioners; notes smeared with phenolphthalein were handed over, and after a signal the police recovered the money and demonstrated the colour change on dipping hands into sodium carbonate solution. The investigating officer (I.O.) completed investigation and forwarded papers seeking sanction to prosecute Petitioner No. 1 to the Government and sanction to prosecute Petitioner No. 2 to the Deputy Commissioner. The final report included a sanction order for Petitioner No. 2 but not for Petitioner No. 1.

The Special Judge had, at the Public Prosecutor's request, issued summons to Petitioner No. 1 in anticipation of sanction, but those summons were later withdrawn. Petitioner No. 1 obtained an order from the Government rejecting sanction to prosecute him (initial order dated 5.9.2009, and a later reconsideration request rejected on 23.6.2011). Aggrieved by the final report, the petitioners filed the present petition to quash the proceedings in Special C.C. No. 7/2011.

Legal Issues Presented

Whether the investigation and final report are vitiated by the conduct of the investigating officer who, prior to registering the complaint, provided a tape recorder to the complainant and actively assisted in collecting evidence.
Whether the absence of a valid sanction to prosecute Petitioner No. 1 (and the Government's rejection of such sanction) affects the prosecution of Petitioner No. 2, given that the prosecution case alleges a joint offence by both petitioners.
Whether, in light of the above, the proceedings in Special C.C. No. 7/2011 against Petitioner Nos. 1 and 2 should be quashed.

Arguments of the Parties

Petitioners' Arguments

The petitioners relied on the Government order rejecting sanction to prosecute Petitioner No. 1 (order dated 5.9.2009 and a subsequent rejection of reconsideration dated 23.6.2011) as produced before the court.
The petitioners placed material on record and the counsel argued the case with reference to that material (specific further content of counsel's submissions is not detailed in the opinion).

Prosecution / Lokayuktha's Arguments

The Special Public Prosecutor for Lokayuktha contended that there was prima facie material demonstrating demand and acceptance of bribe by Petitioner No. 2 and that therefore the proceedings should not be quashed.
The Lokayuktha side submitted that the Government order rejecting sanction for Petitioner No. 1 had not been received by the Lokayuktha police and therefore the matter was still pending (as stated in the opinion).

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court examined procedural facts and the integrity of the investigation. Key points of the court's step-by-step analysis as stated in the opinion are:

The complainant first approached Lokayuktha police on 05.10.2007 expressing apprehension that the petitioners might demand a bribe. Instead of registering the complaint immediately or conducting a traditional preliminary enquiry, the investigating officer gave the complainant a tape recorder to record conversations with the petitioners to obtain evidence.
The court found this conduct to be a serious impropriety: giving the tape recorder and effectively assisting the complainant in collecting evidence before registration of the complaint demonstrated an undue and unwarranted interest by the I.O. in the investigation, rather than the impartiality expected of an investigating agency.
The court distinguished between legitimate preliminary enquiry and active participation in evidence collection: it held that providing a tape recorder did not amount to a preliminary enquiry but rather to collecting evidence pre-registration, thereby compromising the independence and objectivity of the investigation.
Because of the I.O.'s conduct, the court held that the integrity of the investigation and the final report was vitiated, rendering the material in the final report unreliable for purposes of initiating prosecution.
Additionally, the Government had refused sanction to prosecute Petitioner No. 1 (reasons included allegations regarding the complainant's character and an FSL report that recorded voices did not tally with sample voices). The court noted that there was no valid sanction in place to sustain proceedings against Petitioner No. 1.
The court reasoned that the illegalities identified in the investigation with respect to Petitioner No. 1 applied equally to Petitioner No. 2, because the prosecution case described the two petitioners as having jointly committed the offence. The court therefore held that there could be no different standard for prosecuting Petitioner No. 2 in the absence of a valid prosecution case against Petitioner No. 1.
Balancing these factors, the court concluded that both the investigation and the final report as regards Petitioner No. 2 were vitiated, and that the final report against Petitioner No. 1 did not sustain due to lack of sanction.

Holding and Implications

The petition is allowed: the proceedings in Special C.C. No. 7/2011 against Petitioner Nos. 1 and 2 are quashed.

Implications:

Direct effect: The criminal proceedings arising from the final report (Special C.C. No. 7/2011) against both petitioners were quashed by the court, terminating the prosecution that had been initiated on the basis of the impugned investigation and final report.
Sanction issue: The court relied on the absence and rejection of sanction for prosecuting Petitioner No. 1 as a basis for denying the continuation of proceedings against him, and extended the benefit of that reasoning to Petitioner No. 2 because the prosecution alleged a joint offence.
On precedent or broader legal consequences: The opinion does not discuss or claim to lay down any new legal principle beyond its application to the facts of the case; it addresses the specific investigatory impropriety and the effect of a rejected sanction on proceedings against a co-accused. No broader policy or precedent-setting statement is articulated in the text.

Note: This summary is strictly confined to material expressly contained in the provided opinion. No information has been inferred or added beyond the text of the judgment.

Show all summary ...

K. Sreedhar Rao, J.:— The material facts of the prosecution case disclose that one Arasappa-complainant was working as SDA in the office of Tahasildar at Sindhanoor. There were allegations against him. Petitioner No. 1 was the Tahsildar at Sindhanoor for the period in question. The petitioner No. 2 was working as FDA in the office of the Tahsildar, Sindhanoor in Establishment Branch. On the report of petitioner No. 1, the complainant was deputed to work in Nada kacheri at Jewalagera. The complainant found the posting at Jewalagera is inconvenient. The deputation could have been cancelled only on the further report of the Tahsildar to the Assistant Commissioner.

2. The complainant in order to seek cancellation of deputation and also for payment of Festival Advance approached Petitioner No. 1 at his residence on 09.10.2007 Petitioner No. 1 tells the complainant to meet Petitioner No. 2. When the complainant meets petitioner No. 2, he tells that complainant should pay Rs. 10,000/- as illegal gratification to the petitioner No. 1 and Rs. 500A for him. The complainant meets petitioner No. 1 on 11.10.07 In the discussion, petitioner No. 1 agreed to do favour on payment of Rs. 5000 to him and Rs. 500 to petitioner No. 2. The complainant was not willing to pay the bribe amount and gave a complaint to the Lokayuktha police on 15.10.2007

3. The Lokayuktha police registered a case, secured CW2 and CW3 and panch witnesses for the trap. The IO conducted colour test to demonstrate the effect of phenolphthalein powder with sodium carbonate solution to show that when phenolphthalein powder contacts solution, it turns into pink colour. The currency notes are smeared with phenolphthalein powder. The complainant was asked to go and meet petitioner No. 1 and petitioner No. 2 and to pay the bribe amount on demand. CW2 was sent as shadow witness to observe the transaction as independent witness. The complainant and CW2 went to chambers of petitioner No. 1. Petitioner No. 1 asked about the identity of CW2. The complainant says that he is a public. Petitioner No. 1 asks CW 1 to go out. CW 2 comes out and stands at the corner of the door and observed the transaction. The petitioner No. 1 demanded the bribe amount. The complainant gave the bribe amount. The petitioner No. 1 received the same and put it in a draw. The complainant came out from the chambers of petitioner No. 1. He and CW2 go and meet petitioner No. 2. On his demand. Rs. 500 is paid. The complainant after successful trap, gave a signal to the I.O The 10 along with CW3 and Others come to the scene, recovered the bribe at the instance of Petitioners 1 and 2 and they were made to dip their hands into Sodium Carbonate solution, which turned into pink colour.

4. The I.O after completion of the investigation has sent investigation papers, to the Government for sanction to prosecute Petitioner No. 1 and to the Deputy Commissioner-competent authority for seeking sanction to prosecute petitioner No. 2. Along with the final report, the 10 has not filed sanction order to prosecute petitioner No. 1. But the sanction order of prosecuting petitioner No. 2 is filed.

5. The Special Judge at the request of the Public Prosecutor, in anticipation of grant of sanction for petitioner No. 1, issued summons to petitioner No. 1. However, on the application of the Public Prosecutor, the summons issued to petitioner No. 1 has been withdrawn. There is no sanction order filed for prosecuting Petitioner No. 1 till now. The petitioners aggrieved by the final report, have filed the petition for quashing the proceedings.

6. The Counsel for the petitioner has produced the order of the Government rejecting the sanction for prosecuting petitioner No. 1 and order dated 5.9.2009 which is at Annexure “L”. There was a renewal request by the I.O for reconsideration of the material for grant of sanction. The said request has been rejected by order dated 23.6.2011 giving reasons vide Annexure H. The following reasons have been assigned for rejecting the sanction for prosecuting petitioner No. 1.

i) The complainant is man of dubious character and on earlier occasion he had threatened to make a bomb blast at the Deputy Commissioner Office.

ii) The complainant had misappropriated the funds. Therefore, as a measure of penalty he was deputed to work at Jawalgera.

7. In the reasons, it is shown that the complainant on earlier occasion had threatened to make a bomb blast at the Deputy Commissioner's office and he had mis-appropriated the funds and he has been deputed to Jawalgera as a measure of penalty. The complainant was in the habit of threatening the officials and was indulging in dereliction of duty. In Annexure-H, it is further mentioned that the complainant had tape-recorded the conversation with Petitioner No. 1 regarding the demand of bribe. The FSL report discloses that the recorded voice and sample voice do not tally. Because of the said reasons, the grant of sanction is rejected. However, the Deputy Commissioner, Raichur has accorded sanction for prosecuting Petitioner No. 2.

8. The complainant first approached the Lokayuktha police reporting the demand of illegal gratification by Petitioners 1 and 2. The Lokayuktha police gave tape recorder to the complainant to record the conversation with petitioners 1 and 2 as a substantial basis for registering the complaint. The complainant accordingly recorded the conversation with the petitioner No. 2 on 5.10.2007 and petitioner No. 1 on 15.10.2007 with the tape recorder given by the Lokayuktha police. The complaint is registered on 15.10.2007 The FSL report discloses that the recorded voice do not-tally with the sample voice of petitioners 1 and 2. In the final report, the statements of CW2 and CW3 were recorded.

9. The statement of CW2 is to the effect that he went along with the complainant to the chambers of Petitioner No. 1 and he was asked to go out. Therefore, he stood at the corner of the door and observed the transaction. Petitioner No. 1 demanded bribe and complainant gave a bribe. Therefore, the complainant and CW 2 go and meet petitioner No. 2 who demanded bribe and it was given by the complainant in his presence. Later on the complainant gave a signal to the Lokayuktha police. The Lokayuktha police apprehended petitioners 1 and 2 and recovered money from their possession. On the basis of the said materials, the Special Public Prosecutor for Lokayuktha strenuously contended that there is prima facie material for demand and acceptance of bribe by petitioner No. 2. Therefore, the question of quashing the proceedings does not arise.

10. The Counsel for the petitioners in a memo, produced the order of Government rejecting the request for grant of sanction to prosecute petitioner No. 1. The Counsel for Lokayuktha submitted that said order is not received by the Lokayuktha police and matter is still pending.

11. Heard Sri. Bahubali, the Counsel for the petitioners with reference to material on record.

12. The material discloses that the complainant first approached Lokayukta Police on 5.10.2007 and he apprehends that the petitioners 1 and 2 may demand bribe for doing favour to cancel the deputation. The Lokayuktha police in order to get concrete material for registering the case, gave tape recorder to the complainant to record the conversation with petitioners 1 and 2 to create a basis for registering the complaint. In the context of the above facts, a serious impropriety on the part of the I.O is evident, because I.O does not register the complaint on 05.10.2007 In fact, the complaint categorically mentions that the complainant apprehend that Petitioners 1 and 2 may demand bribe. Therefore, the I.O gave tape recorder for recording conversation. The conduct of I.O is highly depreciable. The I.O should act as impartial and independent investigating agency. When there is no material to register the complaint on 05.10.2007, the I.O should have insisted better material for registering the complaint. He should not have associated himself and assisted the complainant by giving tape recorder to record the conversation. It may be true that every complaint need not be registered blindly. The I.O is entitled to make preliminary enquiry. But however, giving tape recorder to record conversation with regard to demand of bribe does not constitute preliminary enquiry, rather it amounts to collecting the evidence against the petitioners even before the case is registered. This indicates undue interest shown by the I.O in the investigation of the case. Therefore, it becomes doubtful to believe the credibility and integrity of the investigation and the final report. In view of the above serious illegalities, the investigation gets vitiated.

13. The contention that CW2 and CW3 in their statement have clearly speak about the demand and acceptance of bribe by Petitioners 1 and 2, is untenable. When I.O has shown undue and unwarranted interest in the investigation of the case, the investigation will be vitiated and integrity of the final report becomes doubtful to be believed. The material in the final report cannot be prima facie accepted as credible piece of material for prosecuting Petitioners 1 and 2. It is evident from the order produced along with the memo by Petitioner No. 1 that the Government has refused to accord permission to prosecute petitioner No. 1. The illegalities that vitiates the case for prosecuting petitioner No. 1, equally applies to the case of petitioner No. 2 and there cannot be different standards to prosecute petitioner No. 2 in the absence of petitioner No. 1 because the prosecution case discloses that petitioners 1 and 2 have jointly committed the offence. When the prosecution material against petitioner No. 1 is rejected, the same would also enure to the benefit of petitioner No. 2.

14. Therefore, for the reasons stated above, the investigation and the final report against Petitioner No. 2 is vitiated. The final report against petitioner No. 1 does not sustain because there was no valid sanction to prosecute him. The sanction to prosecute him is rejected. In that view of the matter, the petition is allowed, the proceedings in Special C.C No. 7/2011 against Petitioner Nos. 1 and 2 are stand quashed.