Karnataka High Court
Sri. P M Abdul Basheer vs State Of Karnataka By on 10 December, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.17901 OF 2024 (GM-RES)
BETWEEN:
SRI P.M.ABDUL BASHEER
S/O LATE P.A.MAHINE
AGED ABOUT 49 YEARS
OCCUPATION: FIRST DIVISION
ACCOUNTS ASSISTANT
OFFICE OF EXECUTIVE ENGINEER
RURAL DRINKING WATER AND
SANITATION DIVISION, MADIKERI
R/AT CAR OWNER AND DRIVERS LAYOUT ROAD
CHIKKANNA LAYOUT, GONDIBASAVANAHALLI
KUSHALNAGAR, KODAGU DISTRICT - 571 234.
... PETITIONER
(BY SRI P.PRASANNA KUMAR, ADVOCATE)
AND:
1. STATE OF KARNATAKA BY
DEPUTY SUPERINTENDENT OF POLICE
KARNATAKA LOKAYUKTA P.S.,
KODAGU DISTRICT
REPRESENTED BY ITS
SPECIAL PUBLIC PROSECUTOR
OFFICE OF THE KARNATAKA LOKAYUKTA
M.S.BUILDING, DR. AMBEDKAR VEEDHI
2
BENGALURU - 560 001.
2. SRI LOKESH
OCCUPATION: POLICE INSPECTOR
KARNATAKA LOKAYUKTA POLICE STATION
MADIKERI, KODAGU DISTRICT - 571 201.
... RESPONDENTS
(BY SRI B.B.PATIL, SPL. PP FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C
PRAYING TO I) QUASHING THE FIR AND COMPLAINT/SOURCE
REPORT DATED 29.04.2023 IN CR.NO.07/2023 DATED 27.06.2023
REGISTERED BY THE 1ST RESPONDENT/KARNATAKA LOKAYUKTA
POLICE, KODAGU DISTRICT, MADIKERI AS AGAINST THE
PETITIONER HEREIN WHO IS ARRAYED AS ACCUSED ALLEGING
THE COMMISSION OF THE OFFENCE PUNISHABLE UNDER SECTION
13(1)(B) READ WITH 13(2) OF PREVENTION OF CORRUPTION ACT
1988 (AMENDMENT ACT-2018), WHICH IS SUBMITTED BEFORE
THE HON'BLE PRINCIPAL DISTRICT AND SPECIAL JUDGE, KODAGU
DISTRICT, MADIKERI INSOFAR AS THE PETITIONER/ACCUSED IS
CONCERNED (PRODUCED VIDE ANNEXURES-A AND B).
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT MADE THE FOLLOWING:-
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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before this Court calling in question a FIR in
Crime No.7 of 2023 registered for offences punishable under
Sections 13(1)(b) and 13(2) of the Prevention of Corruption Act,
1988 ('the Act' for short).
2. Heard Sri P.Prasanna Kumar, learned counsel appearing for
the petitioner and Sri B.B.Patil, learned Special Public Prosecutor
appearing for the respondents.
3. Facts, in brief, germane are as follows:-
The petitioner joins the service of the Irrigation Department
of the State of Karnataka as a Second Division Assistant on
29-01-1994. 29 years after completion of service, a source report
is drawn against the petitioner on 29-04-2023. The source report
becomes the foundation for registration of crime in Crime No.7 of
2023. The registration of crime has driven the petitioner to this
Court in the subject petition.
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4. The learned counsel Sri P. Prasanna Kumar appearing for
the petitioner submits that the source report is faulty and the FIR
based thereon is to be quashed on the following grounds:
(i) No value whatsoever has been assigned to the
properties that were acquired by the petitioner prior to
the check period;
(ii) Order under Section 17 of the PC Act passed by the
Superintendent of Police does not reflect application of
mind and the same is in a standardize and cyclostyled
manner;
(iii) No preliminary enquiry has been conducted by the
respondents before drawing the source report or
registration of the impugned FIR. Further, no
verification has been made by the Superintendent of
Police on the source report filed by the 2nd respondent;
(iv) The petitioner and his family members own several
agricultural properties, in which coffee and such other
crops are grown on a regular basis yielding agricultural
income. In order to substantiate the same, the
agricultural produce bills of the year 2023 has been
annexed along with the petition. The income so
generated has been declared in the Annual Property
Returns and also the Income Tax Returns filed by the
petitioner before the concerned authorities;
(v) The respondents have taken a vague check period to
establish their case, which is in clear contravention to
the settled principles of law;
(vi) APRs and IT returns are not verified.
5
He would contend that it is contrary to the judgments rendered by
the coordinate Benches of this Court. He would place reliance upon
two judgments rendered in CHANNAKESHAVA H.D. v. STATE OF
KARNATAKA AND ANOTHER1 and S.SATHISH AND OTHERS v.
THE KARNATAKA LOKAYUKTA POLICE INSPECTOR AND
OTHERS2.
5. Per contra, the learned Special Public Prosecutor
representing the Lokyukta would contend that the petitioner has
admittedly amassed wealth disproportionate to the known source of
income. All the defence that the petitioner is now projecting can be
projected before the concerned Court at the time of trial. The
matter is still at the stage of investigation. This Court should not
interfere at the stage of investigation based upon the source report
and consequent filing of FIR. He would submit that judgments
rendered by the coordinate benches, relied on by the learned
counsel for the petitioner are all distinguishable, as preliminary
inquiry can be two types - one open inquiry and the other discreet
1
W.P.No.28052 of 2023 decided on 25th April 2024
2
W.P.No.22483 of 2023 and connected cases decided on 2nd July 2024.
6
inquiry. Discreet inquiry is conducted in the case at hand and
therefore, there is no warrant of interfere. He would seek dismissal
of the petition.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The afore-narrated facts are not in dispute. The afore-
quoted grounds on which the petition is presented became a
subject matter of consideration at the hands of coordinate benches
of this Court in aforementioned judgments and since they are legal
contentions which go to the root of the matter, without going into
merits of the present case, as those legal contentions are what are
applicable to the case at hand, I deem it appropriate to grant the
same relief that is granted to those petitioners, in the present case
also, to the petitioner. What the coordinate benches have held and
relief granted are required to be noticed.
7
8. In the case of CHANNAKESHAVA H.D. supra the
coordinate Bench holds as follows:
".... .... ....
11. On perusal of the same, the Lokayuktha police
prepared a source report dated 5.10.2023 and the same was
forwarded to the Superintendent of Police, Lokayuktha
contending that the petitioner being the Executive Engineer
working in BESCOM amassed the property or assets in the
names of family members, his name to the tune of
Rs.12,95,91,000/- and his expenditure was Rs.86,99,000/- and
income was Rs.7,18,23,000/- and the disproportionate assets
was Rs.6,64,67,000/- to the tune of 92.54%. Therefore,
requested the Superintendent of Police to permit for registering
the FIR. Accordingly, the Superintendent of Police sent the
source report to the Dy.SP and the Dy.SP given a report on
24.11.2023, and based upon the Dy.SP report, again the
Superintendent of Police passed an order on 04.12.2023 under
Section 17 of the Prevention of Corruption Act directing the
police inspector Srikant to register the FIR. Subsequently, the
police inspector registered the FIR for the offences punishable
under Section 13(b) read with section 13(2) of P.C. Act, which is
under challenge.
12. Learned counsel for the petitioner has contended that
there is manipulation in the registration of FIR, the reference
number made in the FIR as per the order of the Superintendent
of Police is altogether different from the order passed by the
Superintendent of Police under Section 17 of the Prevention of
Corruption Act. In this regard, it is convenient to mention the
order of the Superintendent of Police as under:
KARNATAKA LOKAYUKTA
No. LOK/SP/Bengaluru City-1/Source-14/2023 M.S.Buildings,
Dr.B.R.Abmedkar Veedhi,
Bengaluru, dt:04/12/2023.
PROCEEDINGS OF THE SUPERINTENDENT OF POLICE,
KARNATAKA LOKAYUKTA, BENGALURU CITY-1
8
Sub:Possession of properties disproportionate to the known
sources of income by Sri Channakeshava H.D. Executive engineer,
KPTCL, present working at Bescom, Jayanagara Division Bengalore.
Ref: 1. Source report submitted by
Shri Girish.B., DySP-09, KLA,
Bengaluru City-1 on
05.10.2023
2. Verification report submitted
by Shri Basavaraj R Magadum
DySP-05, KLA, Bengaluru City-
1 on 27.11.2023
***
With respect to the above cited subject and reference-1 & 2, it
is ascertained that Sri Channakeshava H.D. Executive engineer,
KPTCL, present working at Bescom, Jayanagara Division Bengalore has
acquired properties disproportionate to his known sources of income to
the extent of Rs. 6,64,67,000/- i.e., 92.54% and thereby committed
an offence punishable under Sec. 13(1)(b) r/w 13(2) of the Prevention
of Corruption Act-1988.
From the material placed before me and with the application of
my mind, I am satisfied that a prima-facie case is made out against Sri
Channakeshava H.D. Executive engineer, KPTCL, present working at
Bescom, Jayanagara Division Bengalore warranting a statutory
investigation for an offence punishable under Sec. 13(1)(b) r/w 13(2)
of the Prevention of Corruption Act-1988.
Hence I pass the following Order
ORDER NO. LOK/INV(G)/CITY/54/2023,
DATED:04/12/2023
Therefore, by virtue of the powers vested in me under the
provisions of Sec. 17(c) of the Prevention of Corruption Act - 1988, I,
Joshi Shrinath Mahadev, IPS., Superintendent of Police, Karnataka
Lokayukta, Bengaluru City-1 order that Sri S.Srikanth, PI-01,
Karnataka Lokayukta, Bengaluru City-1 to register a case under Sec.
13(1)(b) r/w 13(2) of the Prevention of Corruption Act - 1988 against
Sri Channakeshava H.D. Executive engineer, KPTCL, present working
at Bescom, Jayanagara Division Bengalore and to investigate the said
case.
Further, I authorize Sri S.Srikanth, PI-01, Karnataka
Lokayukta, Bengaluru City-1 under the provisions of Section 18 of the
Prevention of Corruption Act - 1988 to inspect the Banker Books in so
far as it relates to the accounts of the persons suspected to be holding
9
money on behalf of the said Sri Channakeshava H.D. Executive
engineer, KPTCL, present working at Bescom, Jayanagara Division
Bengalore and to take or cause to be taken certified copies of the
relevant entries there from and the bankers concerned shall be bound
to assist Sri S.Srikanth, PI- 01, Karnataka Lokayukta, Bengaluru City-1
the police officer in the exercise of the powers under the said section
of law.
(Joshi Shrinath Mahadev, IPS.,)
Superintendent of Police,
Karnataka Lokayukta,
Bengaluru City -1.
13. On perusal of the reference number made by the
Superintendent of Police which reveals No.LOK/SP/Bengaluru
City-1/Source-14/2023, and based upon the said order, the FIR
came to be registered. The learned counsel for the petitioner
has contended that the endorsement made in the FIR regarding
the order passed by the Superintendent of Police and the
number mentioned on the bottom of the FIR is altogether
different which is referred as under:
1. Annexures (lagathugalu) 1 the source report of the
complainant.
2. The order of the S.P.
No.KLA/PCD/SP2/source/01/2023 dated 09.02.2023.
14. On perusal of the order of the Superintendent of
Police, which reveals that the source report said to be 1/2023
dated 09.02.2023 in the FIR, whereas the order of
Superintendent of Police reveals that the source report was
dated 05.10.2023 and the number was No.LOK/SP/Bengaluru
City-1/Source-14/2023. On perusal of the same, it is altogether
different source report verified by the Superintendent of Police
and passed the order, the order of Superintendent of Police is
different from the number mentioned in the FIR in respect of
registering the case.
15. Even otherwise, on perusal of the endorsement made
by the police on receipt of the source report dated 05.10.2023,
it is mentioned the order of the Superintendent of Police as
L0K/INV(G)/city/54/2024 and this number also altogether
10
different from the order of the Superintendent of Police, as
stated above.
16. In this regard, the learned counsel for the petitioner
has relied upon the judgment of the Co-ordinate Bench of this
Court in the case of SANATHANA KALAKSHETHRA Vs. THE
STATE OF KARNATAKA (WP No.16083/2023 (GM-RES) dated
14.12.2023). In the said case, the Superintendent of Police,
Ramanagar issued authorisation under Section 17 of P.C. Act
whereas the FIR was registered at District Mandya, and the Co-
ordinate Bench has quashed the FIR. Here, in this case, the
source report for registering the FIR is altogether different from
the authorisation issued by the Superintendent of Police and the
source report sent by the police inspector and the date also
differs. The complaint was registered on the source report
1/2023 dated 9.2.2023 where as the authorisation issued by the
Superintendent of Police on respect of No.14/2023 dated
5.10.2023. Therefore, it is clear that very registering FIR and
issuing authorisation is non application of mind. Therefore, both
the source reports are together different from each other.
17. As per the judgment of the Co-ordinate Bench of this
Court in the case of NAVANEETH MOHAN N Vs. THE
STATION HOUSE OFFICER, ANTI CORRUPTION BUREAU
AND ANOTHER (Writ Petition No.43817/2018 dated
21.04.2021), where the Co-ordinate Bench has quashed the FIR
for registering it without doing enquiry and non application of
mind. The another Co-ordinate Bench has also quashed the
proceedings in the case of M. PUTTASWAMY AND OTHERS
Vs. STATE OF KARNATAKA AND ANOTHER in Criminal
petition No.391/2017 clubbed with matters dated 16.03.2023
and so many FIRs were quashed by the Co-ordinate Bench of
this Court. Following the said decisions, this Court also quashed
the FIR in the case of N SATISH BABU Vs. STATE OF
KARNATAKA, LOKAYUKTA POLICE STATION AND
ANOTHER (Writ Petition No.3107/2024 dated 01.03.2024).
18. There is no preliminary enquiry conducted by the
police before registering the FIR. The source report also
insufficient since the beginning period of the property in
possession of the petitioner was shown as 'Nil' or 'Zero'.
11
Therefore, the source report is also insufficient and the order
passed by the Superintendent of Police is also non application of
mind. Apart from that, the FIR could have been registered and
submitted to the Superintendent of Police seeking investigation
of the matter. Hence, there is lapse on the part of the
respondent police in registering the FIR and passing the order
by the Superintendent of Police under Section 17 of P.C. Act.
19. Learned counsel for the petitioner has brought to the
notice that there is circular dated 11.05.2023 issue by DGP,
Lokayuktha for how to investigate the matter in disproportionate
assets case, wherein it is stated as under:
KARNATAKA LOKAYUKTA
LOK/DGP/CIRCULAR-01/2023 Office of the
Director General of Police
Karnataka Lokayukta,
M.S.Building, Bengaluru-560001.
Date: 11/05/2023.
CIRCULAR
Sub: Guidelines to be followed by the
Investigating officers while
Investigating Disproportionate
Asset (DA) cases-reg.
****
With a view to standardise investigation of Disproportionate
Asset (DA) cases the following directions are issued for immediate
compliance by all the Investigation Officers (I.O) henceforth. These
directions will also apply to DA cases under Investigation currently.
i. All DA cases shall be registered only after
a. Submission of detailed Source Information
Report (SIR) by the generating officer to
the Unit Superintendent of Police (SP),
followed by
b. Thorough verification of the SIR by the
Unit SP and submission of the same to
DGP/ADGP KLA, and
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c. Obtaining orders of the DGP/ADGP
ii. All SIRs submitted for orders of DGP/ADGP,
shall contain A, B, C and D statements and
calculation of DA as per Annexure-1 and
comments of the Unit SP on being satisfied
with the SIR.
iii. Upon receipt of orders from DGP/ADGP KI.A, the Unit
SP shall get the FIR registered and issue orders under Sec. 17 PC
Act 1988 assigning the Investigation Officer (10). The 1.0 shall not
be the same as SIR generating officer.
20. In view of the aforesaid findings and the very police
violated their circular in registering the FIR, therefore, the FIR
registered by the police is unsustainable and is liable to be
quashed
21. Accordingly, the writ petition is allowed. The FIR in
Crime No.54/2023 registered by Lokayuktha police, Bangalore,
is hereby quashed."
9. In the case of S.SATHISH supra, another coordinate
Bench holds as follows:
".... .... ....
15. The points that arise for consideration are as
follows:
i) Whether the orders of the Superintendent
of Police passed under second proviso to Section 17
authorizing to investigate against criminal misconduct
of intentional illicit enrichment during the period of
office under Section 13(1)(b), should be elaborate
with clearly discernible reasons?
ii) Whether the conducting of preliminary
enquiry is mandatory before registering the FIRs or
the petitioners have made out any case for the
desirability to conduct preliminary enquiry?
13
iii) Whether the registration of the FIRs must
precede the orders authorizing to investigate?
Point No.(i):
16. Before addressing this point, it is pertinent to cite
the relevant provisions of the Prevention of Corruption Act,
1988, and the legal principles established by the Apex Court, as
well as this Court, with reference to the said provisions.
17. Section 17 is reproduced as hereunder -
CHAPTER IV - INVESTIGATION INTO CASES UNDER THE ACT
17. Persons authorised to investigate.-
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), no police officer below the
rank,-
(a) in the case of the Delhi Special Police
Establishment, of an Inspector of police;
(b) in the metropolitan areas of Bombay,
Calcutta, Madras and Ahmedabad and in any
other metropolitan area notified as such
under sub-section (1) of section 8 of the Code
of Criminal Procedure, 1973(2 of 1974), of an
Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of
Police or a police officer of equivalent rank,
Shall investigate any offence punishable under this
Act without the order of a Metropolitan Magistrate or a
Magistrate of the first class, as the case may be, or make
any arrest therefore without a warrant:
Provided that if a police officer not below the rank of
an Inspector of Police is authorised by the State
Government in this behalf by general or special order, he
may also investigate any such offense without the order of a
Metropolitan Magistrate or a Magistrate of the first class, as
the case may be, or make arrest therefore without a
warrant:
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Provided further that an offense referred to in
[clause (b) of sub-section (1)] of section 13 shall not be
investigated without the order of a police officer not below
the rank of a Superintendent of Police.
18. In the case of Bhajanlal (supra), the Apex Court,
with reference to Section 5-A of the Prevention of Corruption
Act, 1947--which corresponds to Section 17 of the Act, 1988--
the Apex Court ruled that the second proviso to Section 5-A is
mandatory, not merely directory. The Apex Court emphasized
that the investigation by the designated police officer is the rule,
while the investigation by an officer of a lower rank is an
exception. Moreover, the requirement to disclose the reasons for
granting permission for such an exception is a significant legal
obligation. This disclosure ensures transparency and
accountability in the investigative process, reinforcing the
integrity of the legal framework governing corruption
investigations.
19. In the case of State of MP v. Ramsingh (supra),
the Apex Court ruled that an order of the Superintendent of
Police (SP), even when in a proforma format, which indicates
the name of the accused, the FIR number, the nature of the
offense, and the authority of the SP to permit a junior officer to
investigate, along with the timing between the registration of
the FIR and the issuance of the order, demonstrates the
application of mind. Furthermore, the Apex Court emphasized
that procedural delays and legal technicalities should not be
allowed to defeat the objectives of the Act. The overarching
public interest and social purpose of the Act must be considered
while interpreting its various provisions and deciding cases
under it.
20. In the case of State of Karnataka v. B Narayana
Reddy (supra), the coordinate Bench of the Court, while
referring to the Bhajanlal and Ramsingh cases, held that
reasons must be provided for entrusting an investigation to a
lower-ranking officer when the Superintendent of Police issues
an order under the second proviso to Section 17 of the Act,
1988. In this case, the learned Single Judge discharged the
petitioner from the offense punishable under Section 13(1)(e)
read with Section 13(2) of the Act, concluding that the orders
passed by the Superintendent of Police were deficient in reasons
15
for assigning the investigation to a lower-ranking officer,
specifically an Inspector of Police.
21. Therefore, it is evident that the decision of the
Apex Court in Ramsingh's case (supra) should be confined to
the specific facts of that case. The principle established in
Bhajanlal's case remains authoritative: the requirement to
provide reasons for entrusting an investigation to a lower-
ranking officer is imperative. This ensures transparency and
accountability in the investigative process, aligning with the
fundamental legal framework designed to combat corruption.
22. The coordinate Bench of this Court in the case of
S.K. Parmesh v. State of Karnataka (in Crl P. No.
464/2013 : DD 23.05.2013) relying on the decision of the
Apex Court in the case of Ram Singh (supra) held that sufficient
attention to detail is devoted in entrusting the investigation to
the police inspector although the authorization order being a
typed proforma.
23. In the case of D. M. Padmanabha and ors. v.
The State of Karnataka by Lokayuktha (WP
No.2413/2024 : DD 27.5.2024), the coordinate Bench of
this Court ruled that perusal of the order of the Superintendent
of Police would go to show that, along with the source report,
the material which was the basis for the preparation of the
source report was also made available and upon verification of
the same, being satisfied that there was a case made out for
investigation for the alleged offenses, the SP of the police
proceeded to pass an order in exercise of the power under
Section 17 of the PC Act. Therefore, it cannot be said that there
was no application of mind by the SP of the Police before
passing an order under the second proviso of section 17 of the
PC Act.
24. In the case of Babu Rao Chinchanasur v. State
by Lokayuktha 2013 SCC OnLine Kar 10386 : 2014 Cri LJ
3310, the coordinate Bench of this Court has ruled as follows:
1) A Special Judge has to apply his mind to
any complaint under Section 200 of Cr.PC to make out
whether the complainant discloses any offense or not,
and thereafter, order an investigation under Section
16
156(3) of the Cr.P.C. Thus, the discretion given to the
police officer to determine the existence of any
sufficient ground to enter on an investigation is taken
away by the issuance of order under Section 156(3).
2) It further observed that with respect to
the second proviso to Section 17, the Superintendent
of Police or an officer superior to him is required to
apply his mind to the information and thereafter, come
to an opinion that the investigation on such allegations
is necessary.
3) The second proviso to Section 17 of the
Act is but an additional safeguard and protection in
relation to the investigation of the offense referred to
in Clause (e) of sub-Section 1 of Section 13, and that
when a complaint under Section 200 of the Cr.P.C.
alleging the said offence is made, it shall be required
to be referred to a police officer of the rank of a rank
not less than Superintendent of Police, who shall on
application of his mind and on satisfaction that an
investigation is necessary, direct an investigation into
the allegations in the complaint. Furthermore, it held
that if this mode were to not be adopted, it would
defeat the statutory protection enshrined in the
second proviso to Section 17 of the PC Act, 1988.
25. In the case of State through CBI v Hemendhra
Reddy AIR Online 2023,SC 468 the Apex Court has ruled that
the second proviso is in the nature of additional safeguard for
the public servant who are accused of the offence punishable
under Section 13(1)(e) of the Act, 1988 against the
investigation without the knowledge and consent of a superior
police officer not below the rank of Superintendent of police. A
superior police officer of the rank of Superintendent of police is
required to pass an order before an investigation and before
directing such investigation, is required to apply his mind to the
information and come to an opinion that the investigation on
such allegations is necessary.
26. In the case of K.L. Gangadhariah v. Karnataka
Lokayukta (WP 1182/2023 DD 28.07.2023) a coordinate
bench of this Court had held that the action of Lokayuktha must
17
inspire confidence of the Court and that the duration of the
check period must either end with the date of registration of the
crime or must immediately precede the date of registration of
crime. The source information report must be scrutinized in its
entirety, as a faulty (meaning inaccurate herein) check period
shall inevitably render the source information report faulty. It is
relevant to note that this judgment is subject matter of
challenge before the Hon'ble Supreme Court.
27. I am in complete concurrence with the view taken
by the coordinate bench that where an order is issued under
the second proviso of section 17 of the Act, 1988 directed an
investigation without arriving at a logical reason as to why the
"clock of the check period in the source information report"
came to an abrupt halt 8 years prior to the date of presentation
of the source report and registration of the crime, it would
constitute an incurable transgression of a substantive right
vested in the accused public servant under the second proviso
of Section 17 of the Act, 1988. Interpreting the wordings used in
the second proviso, the Apex Court in the much earlier case of
Inspector of Police v. Surya Sankaram Karri 2006 7 SCC
172 had held the second proviso of the Section 17 of the said
Act to be of a mandatory character and order under the said
proviso had to be passed in writing.
28. The proviso therefore, imposes a graver obligation
on the Superintendent of the Police to verify the contents of the
source information report and other relevant materials so as to
arrive at a prima facie conclusion that there exists sufficient
ground to investigate a case. An order based on the summary
reading in a routine manner, for a fleeting moment does not cut
muster with the legislative intent and object of preventing
frivolous and speculative investigation and irreparable harm
caused to the reputation of public servants by motivated,
reckless and unsubstantiated allegations of criminal misconduct.
Thus, the order issued under the second proviso must be made
upon a comprehensive scrutiny of the source information report.
29. In view of decisions of the Apex Court and of this
Court in cases alluded to above, the ratio enunciated is
summarized as follows:
18
1) The second proviso is mandatory, not merely
directory. Investigation by the designated police
officer is the Rule, while the investigation by an
officer of a lower rank is an exception.
2) It is imperative that the reasons for granting
permission to a lower rank officer to conduct the
investigation be disclosed. The requirement
ensures transparency and accountability in the
investigative process.
3) The order under second proviso must demonstrate
the application of mind even if it is in a proforma
format.
4) The decision in Ram Singh case should be confined
to its specific facts, and the ratio enunciated in
Bhajanlal case remains authoritative.
5) The order under second proviso must disclose that
the material forming the basis of the source report
was verified and there was prima facie satisfaction
that the case is made out for investigation.
30. In light of the above precedents and findings
enunciated above, the true meaning of an order made under the
second proviso to the Section 17 of the Act, 1988 requires to be
considered.
31. An order means a conclusive opinion supported by
reasons. A person affected by an order has an opportunity to
understand the reasons behind it and therefore, aligns with
principles of natural justice. Moreover, it ensures transparency,
accountability and fairness. Requiring reasons acts as a
safeguard against arbitrary or abusive use of investigative
powers. It prevents authorities from conducting investigations
based solely on speculation or personal bias, thereby protecting
individuals from unwarranted intrusion into their privacy or
affairs.
32. The Hon'ble Supreme Court in the case of Steel
Authority of India Ltd. v. Sales Tax Officer, Rourkela I
Circle and Ors. (2008) 9 SCC 407 referencing the
19
observations made in the case of Raj Kishore Jha v. State of
Bihar (2003) 11 SCC 519 held that reasons are the heartbeat
of every conclusion as it introduces clarity in the order. It
further continued to underscore the importance of reasons in an
order as an objective expression of an opinion that stands the
tests of judicial review. Furthermore, it evidences application of
mind, and is in congruence with the time honored principles of
natural justice.
33. In the case of Assistant Commissioner,
Commercial Tax Department, Works Contract & Leasing,
Kota v. M/s Shukla & Brothers (2010) 4 SCC 785, where
an appeal was preferred against the dismissal of a revision
petition by the High Court in a one line cryptic order, the
Hon'ble Supreme Court expounded the doctrine of 'audi alteram
partem' into 3 essential ingredients - firstly, a person against
who an order is required to be passed or whose rights are likely
to be adversely affected must be granted an opportunity of
being heard; secondly, the concerned authority should provide a
fair and transparent procedure; and lastly, the authority must
apply its mind and dispose of the matter by a reasoned order.
34. It further held that "reasons are the soul of
orders", and "non-recording of reasons could lead to dual
infirmities; firstly, it may cause prejudice to the affected party
and secondly, more particularly, hamper the proper
administration of justice." It further held that these principles
were applicable not only to administrative and executive actions
but also to judicial pronouncements.
35. In Birla Corporation Ltd. v. Adventez
Investments and Holdings Ltd. and Ors (2019) 16 SCC
610, where the Apex Court was arrested with the subject of
issuance of process under Section 204 of Cr.P.C., it observed
that "to be summoned / to appear before the criminal court as
an accused is a serious matter affecting one's dignity and
reputation in the society" and that a criminal case cannot be
registered as a matter of course on a complaint filed otherwise
than on a police report, but on application of mind as to whether
the allegations in the complaint constitute essential ingredients
of the offense and whether there are sufficient grounds for
proceeding against the accused.
20
36. It further observed that the Magistrate before
taking cognizance must on application of mind, be prima facie
satisfied on scrutiny and assessment of the allegations in the
complaint, the statement of the complainant and other materials
along with the record of the case as to whether there exists
sufficient ground for proceeding against the accused.
37. In the present cases, the orders passed under
second proviso to Section 17 are extracted as follows.
WP.NO.22483/2023:
PROCEEDINGS OF THE SUPERINTENDENT OF POLICE KARNATAKA
LOKAYUKTA, KOLAR DIVISION, KOLAR.
I have gone through the source report submitted by Smt.
Renuka.A.V, P.I, KLA, Kolar, relating to her receipt of credible
information that Sri.N.Venkatesh, E.O, Bangatpet Taluk panchayath,
kolar district, has acquired properties disproportionate to his known
source of income to the extent of Rs.1,09,52,291/- with extent of
108% and thereby committed an offence U/s 13(1) (b) R/W 13(2) of
Prevention of Corruption Act-1988. (Amendment-2018).
From the material placed before me and with the application
of my mind, I am satisfied that a prima facie case is made out
against Sri. N.Venkatesh, E.O, Bangarpet Taluk panchayath,
warranting a statutory investigation for and offence U/s 13(1)(b)R/W
13(2) of Prevention of Corruption Act-1988 (Amendment-2018).
ORDER NO.LOK/INV(G) KLR/SP/01/2023,
DATED:21/04/2023.
Therefore by virtue of the powers vested in me under the
provisions of section 17(c) of the prevention of corruption Act-1988,
(Amendment-2018), I B.K.Umesh, Superintendent of Police,
Karnataka Lokayukta, Kolar, order that Sri.V. Suryanarayana Rao
DySP, KLA, Kolar to register a case under section 13(1)(b) r/w 13(2)
of Prevention of Corruption Act-1988(amendment-2018) against
AGO Sri. N.Venkatesh, E.O, Bangarpet Taluk panchayath and to
investigate the said case. I know Sri. V. Suryanarayana Rao, Deputy
Superintendent of police and he is having the knowledge of
investigation of the cases registered under P.C act. And also he is
having previous experience of investigation of disproportionate of
asset cases.
21
Further, I authorise Sri. V.Suryanarayana Rao, Dy.SP, KLA,
Kolar, under the Provisions of section 18 of the P.C.Act-1988 to
inspect the banker books in so for as it relates to the accounts of the
persons suspected to be holding money on behalf the said. AGO
Sri.N.Venkatesh E.O, Bangar pet taluk panchayath, and take or
cause to be taken certified copies of the relevant entries there from
and the bankers concerned shall be bound to assist the Police Officer
Sri.V.Suryanarayana Rao, KLA Kolar in the powers under the said
section of law.
Given under my Signature and seal of this Office on
21/04/2023.
Crl.p.No.514/2024:
Source Report submitted by Sri.RAVIKUMAR.A, Police
Inspector, Karnataka Lokayukta, Mysuru P.S. Dated: 08.05.2023
I have gone through the source report submitted by Sri.
RAVIKUMAR.A, Police Inspector, Karnataka Lokayukta, Mysuru.
relating to his receipt of credible information that Sri A.Nagesh,
Assistant Executive Engineer, Mysuru Urban Development Authority,
Mysuru has acquired properties disproportionate to his known source
of income to the extent of Rs. 1,38,50,000-00 and thereby
committed an offence under section 13(1) (b) r/w 13(2) of
Prevention of Corruption Act 1988, (Amendment Act 2018)
From the material placed before me and with application of
my mind I am satisfied that a prima-facie case is made out against
Sri A.Nagesh, Assistant Executive Engineer, Mysuru urban
development authority, Mysuru Warranting a statutory investigation
for an offence under section 13(1) (b) r/w 13(2) of Prevention of
Corruption Act 1988, (Amendment Act 2018)
ORDER NO.KLA/MYS/SP/INV/MYSURU/03/2023, DATED
30.05.2023.
Therefore by virtue of the power vested in me under
provisions of section 17 of the Prevention of Corruption Act 1988,
(Amendment Act 2018) I, S. Sureshbabu, Superintendent of Police,
Karnataka Lokayukta, Mysuru Division, Mysuru order that Sri
Malteesh S.K. Deputy Superintendent of Police-2, Karnataka
Lokayukta, Mysuru Station Mysuru, to register a case under Section
13(1) (b) r/w 13(2) of Prevention of Corruption Act 1988,
(Amendment Act 2018) against Sri A.Nagesh, Assistant Executive
Engineer, Mysuru Urban Development Authority, Mysuru, and to
investigate the said case. I know Urban Desh S.K. Deputy
22
Superintendent of Police-2 and he is having the knowlegde of
investigation of the cases registered under P.C Act and also he is
having previous experience of investigation of disproportionate Asset
cases.
Further I authorise Sri Malteesh S.K. Deputy Superintendent
of Police-2, Karnataka Lokayukta, Mysuru Station Mysuru, under the
provision of the section 18 of the Prevention of Corruption Act 1988,
(Amendment Act 2018) to inspect the bank accounts in so for as it
related to the accounts of the persons suspected to be holding
money on behalf of the said A.Nagesh, Assistant Executive Engineer,
Mysuru Urban Development Authority, Mysuru and to take or cause
to be taken certified copies of the relevant statements of bank
accounts there from and the bankers concerned shall be bound to
assist the police officer Sri Malteesh S.K. Deputy Superintendent of
Police-2, Karnataka Lokayukta, Mysuru Station Mysuru in the
exercise of the power under the said section of law.
WP.no.19512/2022:
PROCEEDINGS OF THE SUPERINTENDENT OF POLICE,
ANTI CORRUPTION BUREAU, BANGALORE CITY
Sub: Possession of properties disproportionate to known
source of income by Sri Shivakumar B.K, Additional Director, of
commerce and Industry, Department, Khanija bhavan Bengaluru.
Ref: Source Report submitted by Sri Nayaz Baig. Police
Inspector, Anti Corruption Bureau, Bangalore City P.S, Dated 08-03-
2022.
I have gone through the source report submitted by Sri Nayaz
Baig, Police Inspector, Anti Corruption Bureau, Bangalore City P.S,
relating to his receipt of credible information that Sri Shivakumar.B
K. Additional Director, commerce and Industry Department, Khanija
bhavan Bengaluru has acquired properties disproportionate to his
known source of income to the extent of Rs. 3,42,76,000-00 and
there by committed an offence under section 13(1)(b) r/w 13(2) of
Prevention of Corruption Act 1988.
From the material placed before me and with application of
my mind I am satisfied that a prima-facie case is made out Sri
Shivakumar B.K, Additional Director, commerce and Industry
Department, Khanija bhavan Bengaluru, Warranting a statutory
investigation for an offence under section 13(1)(b) r/w 13(2) of
Prevention of Corruption Act 1988.
23
ORDER NO.ACB/INV/B.CITY/SP/16/2022, DATED 15.03.2022
Therefore by virtue of the powers vested in me under
provisions of Section 17 of the Prevention of Corruption Act 1988, I,
Yatish chandra.G.H. IPS, Superintendent of Police, Anti Corruption
Bureau, Bangalore City Divison, Bangalore order that Sri K.Ravi
Shankar, Deputy Superintendent of Police, Anti Corruption Bureau,
Bangalore City Police Station, Bangalore to register a case under
Section 13(1)(b) r/w 13(2) of Prevention of Corruption Act 1988
against Sri Shivakumar.B.K. Additional Director, commerce and
Industry Department, Khanija bhavan Bengaluru and to investigate
the said case. I know Sri. K Ravi Shankar, Deputy Superintendent of
Police and he is having the knowledge of Investigation of the cases
registered under P.C. Act and also he is having previous experience
of investigation of disproportionate Asset cases.
Further I authorize Sri K.Ravi Shankar, Deputy
Superintendent of Police, Anti Corruption Bureau, Bangalore City
Police Station, Bangalore, under the provisions of the section 18 of
the Prevention of Corruption Act 1988 to inspect the bank accounts
in so far as it relates to the accounts of the persons suspected to be
holding money on behalf of the said Sri Shivakumar.B.K, Additional
Director, commerce and Industry Department, Khanija bhavan
Bengaluru and to take or cause to be taken certified copies of the
relevant statements of bank accounts there from and the bankers
concerned shall be bound to assist the police officer Sri K. Ravi
Shankar, Deputy Superintendent of Police, Anti Corruption Bureau,
Bangalore City Police Station, Bangalore, in the exercise of the
powers under the said section of law.
Crl.p.No.9086/2023:
PROCEEDINGS OF THE SUPERINTENDENT OF POLICE
KARNATAKA LOKAYUKTA, KOLAR DIVISION, KOLAR.
Sub: Possession of property disproportionate to the known
Source of income by AGO Sri. N.Venkatesh, E.O, Bangarpet Taluk
panchayath, Kolar District. R/O of Bangarpet Town.
Ref: 1)Source Report submitted by Smt. Renuka A.V, PI,
KLA Kolar, dated: 24/03/2023.
2) Lok/IGP/MEMO/SIR-08/2023 Dated: 20.04.2023
I have gone though the source report submitted by Smt
Renuka A.V, P.I. KLA, Kolar, relating to her receipt of credible
information that Sri. N. Venkatesh, E.O, Bangatpet Taluk
24
panchayath, kolar district, has acquired properties disproportionate
to his known source of income to the extent of Rs.1,09,52,291/- with
extent of 108 % and thereby committed an offence U/s 13(1) (b)
R/W 13(2) of Prevention of Corruption Act-1988. (Amendment-
2018).
From the material placed before me and with the application
of my mind, I am satisfied that a prima facie case is made out
against Sri. N.Venkatesh, E.O, Bangarpet Taluk panchayath,
warranting a statutory investigation for an offence U/s 13(1)(b)R/w
13(2) of Prevention of Corruption Act-1988 (Amendment-2018).
ORDER NO.LOK/INV(G) KLR/SP/01/2023,
DATED:21/04/2023.
Therefore by virtue of the powers vested in me under the
provisions of section 17(c) of the prevention of corruption Act-1988,
(Amendment-2018), I B.K.Umesh, Superintendent of Police,
Karnataka Lokayukta, Kolar, order that Sri.V. Suryanarayana Rao
DySP, KLA, Kolar to register a case under section 13(1) (b) r/w
13(7) of Prevention of Corruption Act-1988 (amendment-2018)
against AGO Sri. Venkatesh, E.O, Bangarpet Taluk panchayath and
to investigate the said case. I know Sri. V Suryanarayana Rao,
Deputy Superintendent of police and he is having The knowledge of
investigation of the cases registered under P.C act. And also he is
having previous experience of investigation of disproportionate of
asset cases.
Further, I authorise Sri. V. Suryanarayana Rao, Dy SP, KLA,
Kolar, under the Provisions of section 18 of the P.C.Act-1988 to
inspect the banker books in so for as it relates to the accounts of the
persons suspected to be holding money on behalf of the said. AGO
Sri.N.Venkatesh E.O, Bangar pet taluk panchayath, and take or
cause to be taken certified copies of the relevant entries there from
and the bankers concerned shall be bound to assist the Police Officer
Sri. V. Suryanarayana Rao, KLA Kolar in the powers under the said
section of law.
Given under my Signature and seal of this Office on
21/04/2023.
wp.no.19662/2023:
PROCEEDINGS OF THE SUPERINTENDENT OF POLICE-2
KARANATAKA LOKAYUKTA, BANGALORE CITY.
25
Sub: Possession of properties disproportionate to known
source of income by Sri Shivaraju 5/o Basavegowda, Tahasildar
Grade-2, Revene Department, M.S Building, Bengaluru
Ref: Source Report submitted by Smt.Umadevi R, DYSP,
Kamataka Lokayuktha, Bangalore City P.S, Dated 14.08.2023.
I have gone through the source report submitted by Smt
Umadevi. R. Deputy Superintendent of Police, Karnataka Lokayukta,
Bangalore City P.S. relating to her receipt of credible information
that Sri Shivaraju S/o Basavegowda, Tahasildar Grade-2, Revenue
Department, M.S Building. Bengaluru has acquired properties
disproportionate to his known source of income to the extent of
Rs.2.95,55,000/- and thereby committed an offence under section
13(1)(b) r/w 13(2) of Prevention of Corruption Act 1988.
From the material placed before me and with application of
my mind I am satisfied that a prima-facie case is made out against
Sri Shivaraju S/o Basavegowda, Tahasildar Grade-2. Revenue
Department, M.S Building. Bengaluru warranting a statutory
investigation for an offence under section 13(1)(b) r/w 13(2) of
Prevention of Corruption Act 1988.
ORDER NO.KLA/INV/BCD/SP-2/08/2023, DATED
16.08.2023.
Therefore by virtue of the powers vested in me under
provisions of Section 17 of the Prevention of Corruption Act 1988. I,
Ashok K.V., Superintendent of Police-2, Karnataka Lokayukta.
Bangalore City Division, Bangalore order that Sri. Manjunath G
Hugar, Police Inspector-05, Karnataka Lokayukta, Bangalore City
Police Station, Bangalore to register a case under Section 13(1)(b)
r/w 13(2) of Prevention of Corruption Act 1988 against Sri Shivaraju
S/o Basavegowda. Tahasildar Grade-2. Revene Department, M.S
Building. Bengaluru and to investigate the said case
Further I authorize Sri Manjunath G Hugar. Police Inspector-
05, Karnataka Lokayukta, Bangalore City Police Station, Bangalore,
under the provisions of the section 18 of the Prevention of corruption
Act 1988 to inspect the bankers books in so far as it relates to the
accounts of the persons suspected to be holding money on behalf of
the said Sri Shivaraju S/o Basavegowda, Thasildar Grade-2 Revenu
Department, M.S Building, Bengaluru and to take or cause to be
taken certified copies of the relevant entries there from and the
bankers concerned shall be bound to assist the police officer Sri
26
Manjunath G Hugar, Police Inspector- 05. Karnataka Lokayukta,
Bangalore City Police Station, Bangalore in the exercise of the
powers under the said section of law.
WP.No.20697/2023:
PROCEEDINGS OF THE SUPERINTENDENT OF POLICE
KARNATAKA LOKAYUKTHA, DAVANAGERE.
Subject: Prossession of Properties Disproportionate to the
known sources of income by Sri N.J.Nagaraj, Takashildar, Holalkere
Taluk office, Chitradurga District.
Reference: Source Report submitted by Sri. Anjaneya. N.H.
Police Inspector. Lokayuktha Police Station, Davanagere,
No:Lok/DVG/PI-2/ SOURCE REPORT/02/2023 Dtd.:01/04/2023
I have gone through the source report submitted by Sri.
Anjaneya.N.H, PI, Lokayuktha Police Station, Davanagere, relating to
his receipts of credible information that one Sri N.J.Nagaraj,
Tahashildar, Holalkere Taluk office, Chitradurga District, has acquired
properties Disproportionate to his known sources of income to the
extent of Rs 1,27,49,000/- and there by committed an offence under
section 13(1)(b), 13(2) the prevention of corruption act-1988
(amendment act-2018)
From the material placed before me and with application of
my mind I am satisfied that a Prima-facie case is made out against
Sri N.J.Nagaraj, Tahashildar, Holalkere Taluk office, Chitradurga
District, warranting a statutory investigation for an offence under
section 13(1)(b), 13(2) the prevention of corruption Act-1988
(amendment Act-2018). 1, Superintendent of Police Karnataka
Lokayuktha, Davanagere have been specially authorised to
investigate cases under the Prevention of Corruption Act-1988
(amendment Act-2018).
ORDER NO: Lok//SP/DVG/02/2023, Date: 21.04.2023.
Therefore by virtue of the powers vested in me under section
17 of the prevention of Corruption Act-1958 (amendment act-2018),
1, M.S.Koulapure, Superintendent of Police, Karanakta Lokayuktha
Davanagere order that Sri. Rashtrapathi.IL.S, PI, Lokayuktha Police
Station, Davanagere, to register a case under section 13(1)(b),
13(2) PC Act-1988 (Amendment act- 2018) against Sri N.J.Nagaraj,
Tahashildar, Holalkere Taluk office, Chitradurga District. and to
investigate the said case.
27
Further I authorize Sri. Anjaneya.N.H, PI, Loakayuktha Police
Station, Davanagere under the Prevention of Corruption Act-1988 to
inspect the Bankers books in so for as relates to the accounts of
persons suspected to be holding money on behalf of the said Sri Sri
N.J.Nagaraj, Tahashildar, Holalkere Taluk office, Chitradurga District,
and to take or cause to be taken certified copies of the relevant
entries there from and to freeze the bank accounts as per section
102 of Cr.P.C if necessary, the bankers concerned shall be bound to
assist the Police Officer Sri. Rashtrapathi.H.S, PI, Lokayuktha Police
Station, Davanagere to exercise the powers under the P.C Act-1988
(Amendment Act-2018)
WP.No.22626/2023:
The Certified Copy of the Order dated 21.08.2023 passed by
the Superintendent of Police under Second proviso of the Section 17
PC Act, 1988:
Rest is in kannada untranslatable.
Wp.No. 27760/2023:
PROCEEDINGS OF THE SUPERINTENDENT OF POLICE,
KARNATAKA LOKAYUKTA, BANGALORE CITY DIVISION
Sub: Possession of properties disproportionate to the known
sources of income by S. Nataraja, Revenue inspector, Hoodi Ward
No.54, Mahadevapura, B.B.M.P., Bengaluru.
Ref: Source report submitted by Shri Basavaraja. G. Pulhari
PI-10, KLA, Bengaluru City on 09.08.2023
With respect to the above cited subject and reference, it is
ascertained that S. Nataraja, Revenue inspector, Hoodi Ward No.54,
Mahadevapura, B.B.M.P., Bengaluru, has acquired properties
disproportionate to his known sources of income to the extent of Rs.
3,05,01,000.00/-i.e., 338.90% and thereby committed an offence
punishable under Sec. 13(1)(b) r/w 13(2) of the Prevention of
Corruption Act-1988.
From the material placed before me and with the application
of my mind, I am satisfied that a prima facie case has been made
out against S.Nataraja, Revenue inspector, Hoodi Ward No.54,
Mahadevapura, B.B.M.P., Bengaluru warranting a statutory
investigation for an offence punishable under Sec. 13(1)(b) r/w
13(2) of the Prevention of Corruption Act-1988.
28
Hence I pass the following Order.
ORDER NO. LOK/INV(G)/CITY/38/2023, DATED:16/08/2023
Therefore, by virtue of the powers vested in me under the
provisions of Sec. 17 of the Prevention of Corruption Act 1988, I,
Ashok.K.V., IPS., Superintendent of Police-2, Karnataka Lokayukta,
Bengaluru City hereby authorize Sri Srikanth.S Police inspector-01
Karnataka Lokayukta, Bengaluru City to register a case under Sec.
13(1)(b) r/w 13(2) of the Prevention of Corruption Act-1988 against
S.Nataraja, Revenue inspector, Hoodi Ward No.54, Mahadevapura,
B.B.M.P., Bengaluru and to investigate the said case.
Further, I authorize Sri Srikanth.S Police inspector-01
Karnataka Lokayukta, Bengaluru City under the provisions of
Sec. 18 of the Prevention of Corruption Act -1988 to inspect the
Banker Books in so far as it relates to the accounts of the
persons suspected to be holding money on behalf of the accused
and his family members and benami persons and take or cause
to be taken certified copies of the relevant entries there from,
the bankers concerned shall be bound to assist the said Police
Officer in the exercise of the powers under the said section of
law.
38. In the present cases, all orders issued by the
Superintendent of Police under the second proviso are in a
standardized, cyclostyled format. The only variations are the
names of the accused, the name of the Superintendent of
Police, and the amounts of the disproportionate assets. These
orders reveal that, in some instances, the Superintendent of
Police has not reviewed the source report. In other instances,
the Superintendent of Police has reviewed the source report,
considered the materials presented, and has concluded
thereafter that a prima facie case warranted investigation.
39. However, the orders do not indicate whether the
information that formed the basis of the source report was
reviewed. Furthermore, no reasons are provided for forming the
opinion that a prima facie case exists, necessitating a statutory
investigation against the petitioners. As a result, the orders
authorizing police inspectors to conduct investigations are not in
compliance with the second proviso to Section 17. They also fail
to align with the legal principles established by the Supreme
29
Court and this Court concerning the provision. Consequently,
the registration of the First Information Reports (FIRs) is
invalidated.
Point No.(ii):
40. The conducting of the preliminary enquiry in the
corruption case was considered by the Apex Court in the cases
of Lalitha Kumari v. Govt of U.P. 2013 14 SCR 713, P.
Sirajuddin Etc. v. State of Madras 1971 AIR SC 520,
Charan Singh v. State of Maharashtra (2021) 5 SCC 469,
and it was ruled that an enquiry at a pre-FIR stage is held to be
permissible but not only permissible but desirable, more
particularly in cases where the allegations are of misconduct of
corrupt practice acquiring asset disproportionate to his known
source of income. However, It was clarified in the case of CBI
v. H T Vijayalakshmi (supra) that the preliminary *enquiry
cannot be demanded by the accused as a matter of right, but is
desirable if the information received does not disclose a
cognizable offense but indicates the necessity for enquiry, a
preliminary enquiry may be conducted to ascertain whether
cognizable offense is disclosed or not. It was also observed that
as to what type and in which cases the preliminary *enquiry is
to be conducted will depend upon the facts and circumstances of
the cases. Referencing the case of State of Telangana v.
Manajipet alias Mangipet Sarveshwar Reddy (2019) SCC
OnLine SC 1559, the Apex Court in the case of Vijayalakshmi
upheld the ratio that the object of the preliminary enquiry was
to not vest the right to a preliminary enquiry in the accused but
to ensure there is no abuse of the process of law in order to
target public servants. Moreover, the Apex Court has
periodically held referencing the ACB, CBI and the Lokayuktha
Manuals that "even when a preliminary enquiry is initiated, it
has to stop as soon as the officer ascertains that enough the
material has been collected which discloses the commission of a
cognizable offense."
41. In the instant cases, on perusal of the source
information reports produced, although properties standing in
the name of the public servant or the family members are
purchased out of loans borrowed from Banks/financial
institutions etc., the same is not reflected in the source report.
30
42. Furthermore, the assets standing in the names of
the parents, spouses, major children, married sisters and
brothers, who are employed, are also erroneously included in
the source report without mentioning the dates of acquisition
thereof.
43. The source report must reveal the date and nature
of acquisition of assets and not merely state the assets standing
in the name of the public servant, his spouse, children and
relatives. The valuation of the immovable properties is
imaginary and not based on any objective assessment with
reference to their market value at the time of their acquisition.
44. The source report should reveal the petitioner's
income from actual salary drawn during the period of the check
period. For instance, in WP No.19512/2022, the petitioner was
appointed as an Assistant Director, Department Industries and
Commerce, Government of Karnataka on 4.5.1994 and at
present he is working as Additional Director. The income of the
petitioner from the date of joining into service till date is taken
as Rs.30,00,000/- as against Rs.1,79,79,000/-. Although, the
net salary of the petitioner as on February, 2022 is taken as
Rs.1,71,427/- and gross salary at Rs.1,09,600/- For thirty
years in service, the income of the petitioner has been
inaccurately calculated to a mere Rs.30,00,000/-.
45. Conducting a preliminary *enquiry is
advisable under the following circumstances:
1. When movable or immovable properties are
registered in the name of the spouse, major children, or any
other family members of the accused, it is imperative to verify
whether these acquisitions align with their respective legitimate
earnings from professions or employment.
2. When properties have been acquired by spouses,
children, or other family members through inheritance or as
gifts from individuals who are not public servants, a thorough
*enquiry is necessary to confirm the legitimacy of such transfers
and their compliance with legal provisions.
3. In cases where there is a significant miscalculation
or discrepancy in the reported income of the public servant
31
during the specified check period, a detailed examination is
required to accurately determine the actual income earned
during that period, ensuring a fair assessment.
4. When alleged assets are registered in the names of
unrelated strangers or entities, it is crucial to investigate any
potential hidden connections or proxies acting on behalf of the
public servant.
5. Verification of the timing of asset acquisitions is
essential, especially concerning assets listed in the source
information report acquired before the commencement or after
the expiry of the check period, ensuring they fall within the
relevant scrutiny period.
6. When the source report lacks specific details such
as the specified check period, items marked as 'Nil' during the
check period, or non-consideration of loans in the income
column, a preliminary *enquiry is essential to clarify and obtain
precise information regarding the period under investigation and
the specific assets involved.
46. By conducting a preliminary *enquiry under these
circumstances, investigators can ensure that any further actions
are based on well-founded suspicions and accurate information,
thereby upholding the principles of fairness and justice.
47. However, it may be pertinent to add that the above
guidelines are merely illustrative of circumstances in which a
preliminary *enquiry may be conducted and and that it may not
be possible for Courts of Law to envisage and define precisely
the exhaustive gamut of circumstances in which such an enquiry
must be conducted. It is incumbent upon the investigators to
conduct due verification and scrutiny of the record of the case
and the materials submitted therewith, prior to the setting the
criminal law into motion.
48. In view of the facts of the instant cases, the
petitioners have objectively made out a case for the desirability
of conducting a preliminary enquiry.
Point No.(iii):
32
49. Section 17 is a non-obstante clause and states that
notwithstanding anything contained in the Code of Criminal
Procedure, no police officer below the rank specified in clauses
(a) to (c) shall investigate any offense punishable under this Act
without the order of the jurisdictional Magistrate.
50. The first proviso states that an officer not below
the rank of police inspector, who is authorized by the State
Government, may also investigate any such offense without the
order of the jurisdictional Magistrate.
51. The second proviso states that in respect of an
offense referred to in clause (b) of sub-Section (1) of Section
13, the police inspector shall not investigate without the order of
a police officer not below the rank of a Superintendent of Police.
52. A reading of the above provisions indicates that
there is no bar on registering the FIR by the investigating police
officer without obtaining an order of authorization to investigate.
In other words, the additional safeguard inherent in the second
proviso of Section 17 is attracted only when the stage of
investigation is reached. Therefore, the question before us is
whether an FIR may be registered for alleged offenses
punishable under the Act of 1988 before obtaining an order of
authorization under the second proviso of Section 17 of the Act,
with reference to the provisions contained in Sections 154, 156,
and 157 of the Code of Criminal Procedure.
53. Therefore, what is to be considered is whether the
procedural safeguards outlined in Section 17 apply strictly to the
investigation phase, thereby allowing the registration of an FIR
to proceed independently of the need for prior authorization.
The relationship between the provisions of the Act of 1988 and
the Code of Criminal Procedure must be examined to determine
if the initiation of an FIR can precede the investigative
authorization stipulated by the second proviso of Section 17.
54. Section 154 of Cr.P.C. places an obligation on a
police officer in charge of a police station to record or cause to,
the substance of every information relating to the commission of
a cognizable office.
33
55. Section 156 of Cr.P.C. grants plenary powers to the
police officer in-charge of a police station to investigate any
cognizable case within the limits of such station, without the
order of the jurisdictional Magistrate. The Section employs the
word 'may,' indicating the according of discretion to the
concerned police officer so as to examine from the ascertained
facts and circumstances of the case, as to whether there exists
sufficient ground to enter on an investigation.
56. Section 157 of the Code provides for where it
appears to the investigating officer that there is no sufficient
ground to enter on an investigation, the said officer may in the
exercise of his discretion choose not to investigate the case,
with reasons to be recorded in the report to be sent to the
jurisdictional Magistrate. Furthermore, in the interest of
transparency and accountability, the Code also compels the said
officer to forthwith notify the informant of the fact that he will
not investigate the case.
57. Sri Sandesh J Chouta, learned senior counsel
argued that the Supreme Court in the Kailash Vijayvargiya case
clearly distinguished between the responsibilities of the police to
register an FIR and to investigate it, treating them as separate
functions under the law. In the Lalita Kumari case, the Court
underscored the mandatory nature of Section 154(1) of the
Criminal Procedure Code (Cr.P.C.). This section mandates that
the police must register an FIR whenever they receive
information about the commission of a cognizable offense, with
no discretion to ignore or delay this process.
58. The rationale behind this mandate is to prevent any
information about such offenses from being ignored, which could
otherwise protect the accused unjustly. By removing police
discretion in this matter, the law aims to curb arbitrary actions
by the police and protect the liberty of individuals. This
mandatory registration serves as a crucial right for those
seeking justice, ensuring timely investigations and preventing
any potential manipulation in criminal proceedings.
59. The Apex Court has ruled that "Section 157
requires more stringent criteria than Section 154 of the Cr.PC,"
giving the investigating officer discretion to determine whether
there is sufficient ground to begin an investigation. Additionally,
34
the Court emphasized that "the Magistrate is involved at all
stages of the investigation process."
60. Moreover, in the case of Shivashankara Murthy
(Crl.P No.10109/2024 : DD 25.4.2024), a coordinate Bench
of this Court referenced a Circular dated 11.05.2023 issued by
the Director General of Police, Karnataka Lokayukta. The Bench
stated that an FIR must be registered first, and then the
Superintendent of Police must authorize the investigation under
Section 17 of the Prevention of Corruption Act, 1988.
61. In the case of G. M. Shivakumar (supra), an FIR
was immediately registered following the presentation of the
source report. Subsequently, upon the issuance of the order
under the second proviso of Section 17 of the Prevention of
Corruption Act, 1988, a coordinate bench of this Court quashed
the order of cognizance taken by the Trial Court, despite the
prior exoneration of the accused in the departmental *enquiry.
62. The Court remarked that the Superintendent of
Police's directive to register an FIR immediately upon receiving
the source report, based solely on suspicions of asset
accumulation allegedly disproportionate to known sources of
income, clearly demonstrated a lack of verification of the
contents of the source report. The Court further held that such
circumstances unequivocally necessitate the conduct of an
*enquiry to verify the allegations before proceeding with the
registration of an FIR.
63. A similar issue was considered by the High Court of
Bombay in the case of Ram Rijhumal Kriplani v. The State,
1957 SCC Online Bom 54. This case examined Section 5A of
the Prevention of Corruption Act, 1947, which corresponds to
Section 17 of the Prevention of Corruption Act, 1988. The court
made a distinction between the stages of filing the first
information report (FIR), conducting an investigation, and taking
cognizance of the offense.
64. The Court held that the provisions of Section 5A of
the 1947 Act only apply once the investigation stage is reached.
These provisions do not apply at the stage of filing the FIR. The
Court noted that the stage of registering the FIR comes before
the stage of investigation and that the FIR is the basis upon
35
which the investigation under Chapter XIV of the Code of
Criminal Procedure (Cr.P.C.) begins. It further noted that an FIR
represents the informant's initial case.
65. The Court further explained that an investigation
into the facts and circumstances of a case can only start once
the FIR has been filed and the officer in charge of the police
station has sent a report of the suspected offense to the
jurisdictional Magistrate. Therefore, the provisions of Section 5A
of the 1947 Act (corresponding to Section 17 of the 1988 Act)
do not affect or override the provisions related to filing of an FIR
for cognizable offenses under Section 154 of the Cr.P.C., which
has universal application.
66. Furthermore, this Court in the case of Babu Rao
Chinchansur (supra) has duly recognised the distinction
between the two stages, wherein the Court ultimately concluded
that whilst a private complaint under Section 200 of the Cr.P.C
against an offense punishable under Section 13(1)(e) of the Act,
1988 was maintainable, however, sanction under Section 19 of
the Act, 1988 was a condition precedent to entertain the said
complaint.
67. The established legal principles enunciated by the
Hon'ble Supreme Court and High Courts can be summarized as
follows:
1) Registration of FIR vs. Authorization of Investigation:
Second Proviso to Section 17 of the Prevention of
Corruption Act, 1988 mandates that for offenses under
the Act, no investigation can proceed without
authorization from a Superintendent of Police. However,
this authorization requirement applies at the stage of
investigation and not to the initial registration of an FIR.
2) Mandatory FIR Registration: Section 154 of the Code of
Criminal Procedure (CrPC) mandates that police must
register an FIR upon receiving information about a
cognizable offense, with no discretion to delay or ignore
unless the information is non-cognizable.
3) Discretion in Investigation: Section 156 of CrPC grants
discretion to the police officer in charge of a police station
36
to investigate any cognizable offense based on the facts
and circumstances known to them.
4) Judicial Interpretation: The Apex Court and the High
Court/s have clarified that the requirement for
investigation authorization under Section 17 of the
Prevention of Corruption Act comes into play only after
the FIR is registered. The initial step of FIR registration is
not contingent upon obtaining prior investigation
authorization.
5) Separation of Powers: The judiciary has upheld the
distinction between FIR registration and the subsequent
investigation stage, emphasizing that the mandatory
registration of FIRs is aimed at preventing any
information about offenses from being overlooked or
delayed.
68. In essence, while Section 17 imposes strict
procedural safeguards for the investigation stage of offenses
under the Prevention of Corruption Act, it does not hinder the
police from registering an FIR promptly upon receipt of
information about such offenses.
69. Based on the principles established in decisions by
the Apex Court and High Courts, when an FIR is mandatorily
registered for an alleged offense under Section 13(1)(b) of the
PC Act, 1988, the police officer must submit the report to the
Magistrate under Section 157 of the Cr.P.C. Additionally, the
police officer should forward it to the Superintendent of Police
along with the source information report and other materials
that form the basis for preparing a credible source report. This
is to request an order of investigation under the second proviso
of Section 17 of the Act. The right to register an FIR stands
independently and is not affected by any statutory bar,
specifically in cases involving offenses described in clause (b) of
sub-section (1) of section 13 under the 1988 Act.
70. In these cases, the authorization granted to
investigate preceded the registration of FIRs and is thus,
impermissible and is nullified.
71. Accordingly, I pass the following:
37
ORDER
i) The petitions are allowed.
IN WRIT PETITION NO. 22483 OF 2023:
The impugned proceedings In Crime No.14/2023 pending
on the file of the learned District and Sessions and Special
Court, Davanegere stands quashed.
IN CRIMINAL PETITION NO. 9086 OF 2023:
The impugned proceedings in Cr.No.03/2023 dated
21.04.2023 vide Annexure-A registered in Lokayuktha Police
Kolar District, Kolar pending on file of the Principal District and
Sessions Judge, Kolar, stands quashed.
IN CRIMINAL PETITION NO. 514 OF 2024:
The impugned proceedings in Crime No.8/2023 registered
by the Lokayuktha Police, Mysuru, pending on the file of the III
Addl. District and Sessions and Spl. Court, Mysore, stands
quashed.
IN WRIT PETITION NO. 19512 OF 2022:
The impugned proceedings in Crime No.21/2022 pending
on the file of XXXIII Additional City Civil and Sessions Judge,
Bengaluru, stands quashed.
IN WRIT PETITION NO.19380 OF 2023:
The impugned proceedings in Crime No.35/2023 pending
on the file of 23rd City Civil and Sessions Judge Bangalore stands
quashed.
38
IN WRIT PETITION NO.19662 OF 2023:
The impugned proceeding in Crime No.36/2023 registered
by the respondent pending in the file of XXIII Addl. City Civil
and Session Judge at Bangalore produced -B stands quashed.
IN WRIT PETITION NO. 20697 OF 2023:
The impugned proceedings in Crime No.11/2023
registered by the respondent (Annexure-A) stands quashed.
IN WRIT PETITION NO. 22626 OF 2023:
The impugned proceedings in Crime No.39/2023
registered by the respondent No.1 pending on the file of XXIII
Addl. City Civil and Sessions Judge for prevention of Corruption
Act at Bengaluru (CCH-24) stands quashed.
IN WRIT PETITION NO. 27760 OF 2023:
The impugned proceedings in Crime No.38/2023 pending
on the file of 23rd Addl. City Civil and Session Judge Bengaluru
registered by the respondent police stands quashed.”
10. The dicta of coordinate Benches is binding on this Bench.
Therefore, I deem it appropriate to follow the judgments rendered
by the coordinate Benches, which have granted relief to those
petitioners in identical circumstances, by quashing FIRs, based on
either faulty source report or the order permitting investigation did
not bear application of mind. It would be contrary to the settled
principle of law if judicial decisions of coordinate Benches are not
followed, if the issue is identical.
39
11. It is an admitted fact that the issue is identical in the case
at hand. Therefore, without any independent analysis, I deem it
appropriate to follow the said decisions and grant the same relief to
the petitioner in the case at hand as well, however, observing that
hands of Lokayukta are not tied due to the quashment of the
impugned proceedings. It is always open to it to independently
register a FIR, as is observed by the coordinate Benches, in the
course of the orders.
12. For the aforesaid reasons, the following:
ORDER
(i) Writ petition is allowed.
(ii) FIR in Crime No.7 of 2023 registered against the
petitioner by the Karnataka Lokayukta on 27-06-2023
stands quashed.
Sd/-
(M. NAGAPRASANNA)
JUDGE
bkp