M.C. Narayana Gowda vs State of Karnataka

Anand Byrareddy, J.—This petition is filed challenging the rejection of an application under Section 227 of the Code of Criminal Procedure, 1973, (Hereinafter referred to as the ''Cr.P.C., for brevity), by the Court of the Special Judge, Bangalore Urban District, Bangalore.

The facts of the case are as follows:

"The petitioner is a retired Additional Commissioner of Police. A case was said to have been registered against the petitioner for an offence punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988, (Hereinafter referred to as the ''PC Act'', for brevity). This was on the basis of a source report submitted by the Inspector of Police, Karnataka Lok Ayukta, Bangalore. It was alleged that the petitioner, who was then working as a Deputy Inspector General of Police, Forest Cell, Bangalore, had amassed wealth amounting to 197% beyond his known sources of income."

On registration of the case, the Police are said to have conducted a search of the places of residence and work of the petitioner, as well as his wife. The check period was said to have been fixed comprising the period from 1.2.1980 to 23.1.2009. After further investigation, the police had concluded that the petitioner had amassed wealth amounting to more than Rs. 86.08 lakh or about 89.92% disproportionate to his known sources of income.

The petitioner is said to have furnished a detailed explanation to the allegations and is said to have submitted all the Schedules in the required format. It is stated that the same were ignored and a charge sheet came to be filed, on the basis of which, the court below is said to have taken cognizance of the offence and had issued process for the appearance of the petitioner, in case bearing No. Spl. CC 138/2012.

It is stated that though the petitioner had promptly furnished the Schedules, when called upon to offer his explanation to the income, assets and expenditure spanning several years, strangely, there appeared to have been no further investigation during the period May 2010 to May 2012. Co-incidentally, it was on the eve of his attaining the age of superannuation on 31.5.2012, that a final report was submitted. It is the petitioner''s case that the lull in the proceedings was explained in retrospect, as being on account of the fact that the employer and competent authority of the petitioner had negated the allegations of the respondent and a request made to place the petitioner under suspension pending investigation against the petitioner, had been refused. Hence, knowing fully well that any further request for a sanction to prosecute the petitioner whilst he continued in service, would possibly meet the same fate, the respondent had chosen to lie in wait for the petitioner''s retirement, only in order to avoid the requirement of seeking sanction. It is therefore contended that the entire proceedings reek of mala fides and victimization.

The petitioner had hence submitted an application under Section 239 read with Section 227 of the Cr.P.C., seeking his discharge from the case. The petitioner is said to have placed complete material details to demonstrate that every single allegation of any irregularity or doubt as regards the acquisition or possession of properties, movable and immovable, were duly accounted for. However, the court below having negated the same and having passed the impugned order, the petitioner is before this court.

The learned counsel for the petitioner would contend that the circumstance, under which the respondent having requested the employer of the petitioner to place him under suspension pending investigation and the deliberate act on the part of the respondent to have waited for over a period of two years, awaiting the occasion of the petitioner reaching his age of superannuation and thereafter having submitted a report, thereby avoiding the risk of a request for sanction for prosecution being denied, is clearly bespeaks of pre-meditated ''witch hunt'' and smacks of mala fides. The learned counsel places reliance on the decision in the case of Chittaranjan Das Vs. State of Orissa, .

The learned counsel draws attention to a memo dated 10.9.2014 filed by the petitioner, indicating the assets of the petitioner and his family members that have been taken into account, the income that has not been taken into account by the respondent and the reason assigned by the Investigating Officer for not taking the same into account and the petitioner''s remarks denoting the fallacy that has been committed in not taking the same into account. The endeavour is to narrow down the consideration of the case of the petitioner in seeking a discharge on a prima facie test on the basis of the material furnished by the respondent itself. The same is reproduced hereunder for ready reference.

It is contended that if the above amounts are included in the assets of the petitioner as being legitimate and accounted wealth, there would be no wealth which could be characterized as being disproportionate to the known sources of income.

The learned counsel for the respondent has, however, contended that even if the materials referred to above are reexamined, there are grey areas, which would require to be adjudicated and hence, a trial is inevitable and the same cannot be short circuited on the basis of cursory findings on debatable material.

On a consideration of the rival contentions and the material made available, it is evident that the petitioner has sought to project his case in a nutshell, as it were, for the first time before this court, only as per the memo reproduced above, which is a departure even from the contents of the petition and certainly has simplified the area of controversy. The case, if had been placed before the court below in this fashion in the first instance, the result may have been different. It would hence be unfair for this court to address the particulars that are now highlighted in coming to a different conclusion, if that were possible, making it seem that the court below had failed in its duty in addressing the case of the petitioner, which may not be the correct presumption. This court is hence of the opinion that it would be appropriate if the court below should revisit the material before it and to examine whether the petitioner has indeed made out a case for discharge.

Accordingly, while not finding fault with the opinion expressed by the court below in the impugned order, the same is however, set aside as a matter of form - in order to facilitate a fresh hearing on the application of the petitioner seeking discharge and to consider the inspired version of the case sought to be projected. The court below is accordingly directed to hear the parties afresh and pass appropriate orders on the application of the petitioner filed under Section 227 read with Section 239 of the Cr.P.C., with expedition.