Govind L. Rathod and Others vs State of Karnataka

K.N. Phaneendra, J.—Petitioners who are arrayed as accused Nos. 2 and 3 in Crime No. 9/2012 on the file of Lokayukta Police Station, Bidar, for the offence punishable under Section 13(1)(d) of the Prevention of Corruption Act, 1988 r/w. Section 34 of IPC.

The brief factual matrix that emanate from the records are that Lokayukta police on 28.11.2012 at about 9.45 a.m. received credible information that in the RTO check post situated at Humnabad town near Gulbarga Cross, officers attached to RTO office were collecting penalty and additional amount apart from the penalty from the vehicles moving on the national highway. Lokayukta police particularly, the complainant-R.S. Jahagirdar, Police Sub-Inspector, Karnataka Lokayukta, Bidar, along with his staff proceeded to the check post and-noticed that the officers present in the check post were collecting penalty and additional money from the vehicles entering and exiting the State. They also observed certain private persons were assisting the officer in this regard. It is alleged that the said additional amount received by the Officers were in the nature of bribe which resulted in misconduct of the public servant. As such, they have committed the offence punishable under Section 13(1)(d) of the Prevention of Corruption Act, on that ground he started investigation by registering a case. After registration of the case, he conducted raid over the said Humnabad RTO check post and drawn mahazar.

According to the Mahazar drawn, at that time, one Govind Rathod-petitioner No. 1 and Thippeswamy-petitioner No. 2 and other persons by name Mohammad Ibrahim S/o. Mohammad Yaseen, Rohith Kumar S/o. Shivalinge Gouda, Abdul Wajeed, ARTO, Humnabad Check post and Abdul Rasheed, ARTO jeep driver were present. On enquiry, they found that there was an amount of Rs. 4,700/- near a table in the said check post and on enquiry by the investigating officer Mr. Thippeswamy, told that the said amount is the amount recovered by way of penalty. The said amount was not tallying with the said receipts and the receipts disclose that Rs. 6,800/- was recovered. There was shortage of Rs. 2,100/- and there was no records so far as this aspect is concerned. In fact, the police officer has also conducted check on one Mohammed Ibrahim who was present and found an amount of Rs. 13,000/- in his right side pant pocket. He also did not give any explanation (the said person is private person). One Rohith Kumar who was said to be the private driver of the Motor Vehicle Inspector-Thippeswamy was also checked and he was found with an amount of Rs. 5,115/-. He also did not give any explanation as to how he acquired the said amount. On further enquiry, Abdul Wajeed, ARTO, who was present pleaded ignorance of the above said facts. The said person was also checked and he was found with Rs. 1,050/- and he also did not give any explanation for the said amount. The investigating officer also secured the cash declaration register to ascertain whether the amount recovered from the above said persons were declared in the said cash declaration register, but he found that the said amounts were not declared in the said cash declaration register. Tippeswamy was also checked and he found with an amount of Rs. 630/-. But he had made declaration that he had cash of Rs. 2,800/- and he spent the remaining amount. Therefore, the amount of Rs. 630/- was returned to him. Likewise, amount of Rs. 500/- recovered from one Govind was also returned to him as he has declared that the amount which was with him on 28.11.2012 on the date of the alleged raid. Further added to that, on 28.11.2012 at about 9.30 a.m. one Mr. R.C. Kulkarni, First Division Assistant has produced an amount of Rs. 2,45,784/- in a bag and he has shown the same along with cash/D.D. remittance register and computerized balance sheet, receipt book etc., and the investigating officer has also tallied the said amount with the document and found them correct. The said R.C. Kulkarni also found with Rs. 367/- and he has stated that the said amount was brought by him for his personal expenses. Therefore, no action was taken for seizing of the said amount. One Shankar Rao Kulkarni was also checked on that date. He was found with Rs. 12,000/- and he has explained that the said amount was drawn by him in the bank etc., and that was also found correct, therefore, no action was taken so far as that amount is concerned. By drawing the above said mahazar, the investigating officer were of the opinion that the amount found with the officials were not properly explained, he found the amount in excess, as an amount of Rs. 13,000/- was recovered from 3rd person at that particular point of time and the same was not explained. It is on these grounds, the investigating officer proceeded to investigate the matter.

The learned counsel for the petitioners drawn my attention to the decisions wherein, in similar set of facts and circumstances., this Court has already held that such type of raid without registering a case is not contemplated. However, as could be seen from the records in this case, before drawing up of mahazar and conducting raid, there was registration of the case by the investigating officer.

The learned counsel for the petitioner contends that after receiving credible information, the investigating officer has not registered the case but he proceeded to the spot and found out whether the said information was correct or not and then, he came back and registered the case and conducted raid. The above said act of the investigating officer according to the learned counsel amounts to collecting of evidence before registration of the case. But I respectfully decline to accept the said submission made by the learned counsel, because the investigating officer except observing the situation, he never collected any material so as to implicate any of the accused persons. He never conducted any raid in surprise without registering a case. Therefore, in this particular case, preliminary enquiry has not at all been done by the investigating officer by means of collecting any evidence so as to make that evidence available in future against the accused persons. Therefore, I am of the opinion after registering the case only raid has been conducted.

The learned counsel for the petitioners also contended that though the FIR was registered in this particular case but it was not sent to the Special Judge in time. According to him the FIR was registered at 12.00 p.m. on that particular day, but the FIR was reached to the learned Special Judge at 10.00 p.m. along with remand application and the mahazar, it clearly indicates that no FIR was registered at 12.00 p.m. on that day, therefore it was not sent immediately to the concerned Special Judge. The contention of the learned counsel so far this aspect is concerned, again it requires explanation by the investigating agency as to how the FIR was reached the learned Special Judge at 10.00 p.m. though it was registered at 12.00 p.m. If the explanation is not satisfactory, then also the Court can take proper measure so far as this aspect is concerned.

Now coming to the decision cited by the learned counsel reported in ILR 2013 KAR 983 in the case of Sri Girishchandra and Another Vs. The State by Lokayukta Police, Yadgir. In the said case, the principle laid down is that without registering a case, there cannot any surprise raid and if any raid is conducted, mahazar is drawn and later the first information is registered, it amounts to collecting of evidence. Therefore, said act of the police officers have been deprecated in the above said case. But in the said case, what is observed by their Lordships is that:

"In trap cases, the question of surprise raid is not conceivable and tenable unlike investigation in the case of an offence relating to assets which are disproportionate to known source of income. The method of surprise raid is totally impertinent and irrelevant in a trap case. Otherwise, the Investigating Officers would become arbitrary and could create unwarranted commotional atmosphere in the public offices." The factual aspects said were also in detail considered by the Court and it is observed that there was no complaint from any person giving illegal gratification. No evidence is conceivable regarding demand and acceptance of bribe. The mere possession of some money in the hands of document writers would not suggest or substantiate the offence of demand and acceptance of illegal gratification by the Sub-Registrar and the officials of the office of the Sub-Registrar.

It is also worth to note here the observation made in the said case that:

"In all trap cases it is just and necessary that recording of complaint and submission of FIR to the jurisdictional Court before embarking upon the protocol of raid is mandatory. If this type of investigation by surprise raid in trap cases is permitted, it would demoralize the public administration and the SHOs of Lokayuktha Police Stations would tend to misuse the powers of investigation. It is therefore necessary that the Director General of Police shall properly educate all SHOs of Lokayuktha Police Stations in the State." 9. In another ruling reported in 2012 (5) Kar.L.J. 545 in the case of L. Shankaramurthy and Others Vs. State By Lokayuktha Police, City Division, Bangalore Urban Division, Bangalore, this Court has also considered the provisions under Sections 8 and 13(1)(d) r/w 13(2) and 19(3)(c) of the Prevention of Corruption Act, 1988, and it has categorically held that without there being a complaint and conducting seizure panchanama without registering the case such investigation becomes illegal and is in violation of mandatory provision of Section 154. Exercise of inherent powers is inevitable to prevent the abuse of process of law. Again similar principles have been laid that without registering a case on a complaint lodged by a person, Lokayuktha police cannot conduct the investigation or conduct the raid as such.

The other judgments cited by the learned counsel in Criminal Petition No. 9347/2009 in the case of Shri Ikram Pasha Vs. Karnataka Lokayukta and in Criminal Petition No. 7094/2012 in the case of D.R. Raviprakash and Others Vs. State of Karnataka, Lokayukta police, Chikkaballapur and another, are all on the same footing that the investigating officer cannot conduct the investigation without registering a case and he cannot conduct a surprise raid. But as I have already observed in this particular case, it was not actually a surprise raid, it is only after registering of the case, raid has been conducted. It was found that some irregularities in maintaining the accounts and some of the persons who were present, at that particular point of time, were found with huge amount and the said amount has not been properly explained.

Be that at it may, when the complaint is registered by the police officer himself after receiving the credible information and after confirming himself that there is some truth in such credible information and after registering, he proceeds to the spot on the assumption that cognizable offence has already been committed so as to register a case under Section 154 of Cr.P.C. Then it is bound and duty of the investigating officer to investigate the case to file proper report to the Court. It is specifically alleged in the FIR that some persons are collecting more money at the check post and illegally they are using that amount for their wrongful gain, therefore registering of the case was necessitated and raid was conducted. Looking to the FIR coupled with the mahazar drawn in this particular case with all certainties it cannot be said that the accused persons have committed such an offence but some irregularities and recovery of raid amount is elucidated from the above documents. Therefore, the investigating officer is bound to ascertain truth or falsity by means of completing the investigation how they acquired that money and submit the report to the competent authority seeking sanction to prosecute the officers, if it is found after the investigation that materials are sufficient to secure sanction from the competent authority.

Therefore, looking to the above said facts and circumstances, the facts as cited in the above said rulings are altogether different so far as this particular case is concerned. When allegations contained in the FIR and coupled with the subsequent investigation conducted by the investigating officer discloses a cognizable offence, then such proceedings shall be completed by taking the investigation to its logical end. Therefore, I am of the opinion that this is not a fit case where at the threshold itself the proceedings can be quashed. Of-course, merely because recovery of some amount from the persons who are present at that particular point of time is not sufficient to hold that it was bribe amount collected by the officers, that elucidation of factual aspects in the mahazar has to be prima facie established by the investigating agency at the time of submitting the report to the competent authority. Indeed, if the report is submitted to the Sanction Authority, there is ample opportunity to the authority to look into the contents of the entire charge sheet and find out whether there was any demand or acceptance of any amount or they have committed any misconduct as per Section 13(1)(d) of the Prevention of Corruption Act 1988. Even if the sanctioning authority passes any order, again the same is subject to the scrutiny by the Court which is authorized to take cognizance of the offences. Even at the time of taking cognizance after filing of the charge sheet, the Court has to apply its mind to ascertain whether on the basis of the entire charge sheet contents any offences under the provisions of the Prevention of Corruption Act is attracted, then only, the Court is bound to take cognizance. Otherwise it should not take cognizance and return the charge sheet to the concerned police.

Under the above said circumstances, when there are checks and bounds in between taking cognizance and the investigation which can safeguard the interest of the public servants, in my opinion, at this stage, it may not be proper on the part of this Court to scuttle the investigation and quash the entire proceedings. Therefore, I am of the opinion, at this stage, the petition is not maintainable and the same is liable to be dismissed. However, liberty is given to the petitioners to approach the competent Court for their remedies if available in future.