Vijendra K.B. vs State of Karnataka

N. Ananda, J.—The petitioner is arrayed as accused No. 1 in Special Case No. 103/2012, pending trial for offences punishable under sections 7, 13(1)(d) r/w 13''(2) of the Prevention of Corruption Act., 1988 (for short, ''the Act''). He has sought for quashing the proceedings.

I have heard Sri C.H. Jadhav, learned senior counsel for petitioner and Sri Venkatesh P. Dalwai, learned counsel for Lokayukta Police.

The two contentions raised by Sri C.H. Jadhav, learned senior counsel for petitioner are as follows:-

I. The petitioner who was working as a Tax Collector on daily wage basis does not fall within definition of Public Servant under section 2(c) of the Act.

II. The Investigating Officer has handed over voice recorder to first informant to record the conversation between first informant/his representative and accused No. 1 before registration of first information. In other words, Investigating Officer has started investigation and collected evidence before registering first information and the procedure adopted by the Investigating Officer is contrary to the law laid down by the Supreme Court in the decision reported in Lalita Kumari Vs. Govt. of U.P. and Others, .

The learned counsel for Lokayukta Police would submit that handing over voice recorder to collect information is part of preliminary investigation conducted by the Investigating Officer. The petitioner was authorised to discharge public duties. Therefore, petitioner falls within the definition of section 2(c) of the Act.

The petitioner was working as a Tax Collector on consolidated salary. Though petitioner was not in permanent employment, he was entrusted with the duties of a public servant. Therefore, for the purpose of the Act, petitioner is a public servant, notwithstanding the fact that his employment was not permanent. It is not the tenure or permanency of employment that is relevant to decide whether a person is a public servant or not. If a person is empowered to discharge the duties of a public servant and exercise powers of a public servant, he would fall within the definition of "public servant" under section 2(c) of the Act.

The next point for determination is:-

"Whether entrustment of voice recorder to first informant before registration of first information and recording of conversation of accused No. 1 with first informant/his representative would amount to collection of evidence or preliminary inquiry?"

In the decision reported in Lalita Kumari Vs. Govt. of U.P. and Others, , the Supreme Court has held that in corruption cases, the Investigating Officer can make a preliminary inquiry amongst others.

In the decision reported in Yusufalli Esmail Nagree Vs. The State of Maharashtra, , the Supreme Court has held:-

"9. Counsel claimed protection under Art. 20(3) of the Constitution against the use of the statements made by the appellant on August 2, 1960. He argued that by the active deception of the police, the appellant was compelled to be a witness against himself. Had the appellant known that the police had arranged a trap, he would not have talked as he did. Compulsion may take many forms. A person accused of an offence may be subject to physical or mental torture. He may be starved or beaten and a confession may be extorted from him. By deceitful means he may be induced to believe that his son is being tortured in an adjoining room and by such inducement he may be compelled to make an incriminating statement. But we cannot say that in this case the appellant was compelled to be witness against himself. He was free to talk or not to talk. His conversation with Shaikh was voluntary. There was no element of duress, coercion or compulsion. His statements were not extracted from him in an oppressive manner or by force or against his wishes. He cannot claim the protection of Art. 20(3). The fact that the tape recording was done without his knowledge is not of itself an objection to its admissibility in evidence. In saying so, the Court does not lend its approval to the police practice of tapping telephone wires and setting up hidden microphones for the purpose of tape recording."

In the case on hand, the Investigating Officer had handed over voice recorder to first informant to record conversations that took place between accused No. 1 and first informant/his representative. The Investigating Officer has held a preliminary enquiry.

Sri C.H. Jadhav, learned senior counsel for petitioner has relied on decision of the Supreme Court, reported in Sri Ramesh Desai and Sri. Sangayya Swamy Vs. The State of Karnataka--> .

This decision was rendered before the decision of the Constitution Bench of the Supreme Court, reported in Lalita Kumari Vs. Govt. of U.P. and Others, was rendered. Therefore, we have to follow the Constitution Bench decision of the Supreme Court, reported in Lalita Kumari Vs. Govt. of U.P. and Others, ).

In view of the above discussion, I do not find any grounds to quash the proceedings. The petition is dismissed.