Crl.R.P.No.100014/2021 1 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MS. JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO.100014 OF 2021 BETWEEN: THE STATE BY DY.SP. KARNATAKA LOKAYUKTA THROUGH SPECIAL PUBLIC PROSECUTOR, DHARWAD, HIGH COURT OF KARNATAKA …PETITIONER (BY SRI. I.G.GACHCHINAMATH, ADVOCATE) AND: DR. B.DEVANAND S/O LATE B.P.OBAIAH AGED:54 YEARS OCC:PROFESSOR, HOD DEPARTMENT ANESTHESIA, VIMS (VIJAYANAGAR INSTITUTE OF MEDICAL SCIENCE) BALLARI, R/O PLOT NO.2 & 3, ANAND NILAYA, WARD NO.35, VEERANAGOUDA COLONY OPP JSW PARK, BALLARI – 583 103. …RESPONDENT (BY SRI.SHANKAR P. HEGDE & SRI. MOHANKUMAR M., ADVS) Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA Crl.R.P.No.100014/2021 2 THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 AND 401 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO CALL FOR RECORDS IN RESPECT OF THE SPL. C.NO.214/2017 ON THE FILE OF THE SPECIAL JUDGE (LOKAYUKTA) AND PRINCIPAL SESSIONS JUDGE, BALLARI AND SET ASIDE THE IMPUGNED ORDER DATED 31.01.2020 MADE IN SPL.C.NO.214/2017 PASSED BY THE SPECIAL JUDGE (LOKAYUKTA) AND PRINCIPAL SESSIONS JUDGE, BALLARI FOR OFFENCE PUNISHABLE UNDER SECTION 13(I) (D) READ WITH 13(2) PC ACT 1988 BACK FOR TRIAL. THIS CRIMINAL REVISION PETITION, HAVING BEEN HEARD AND RESERVED ON 30.10.2024, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON’BLE MS. JUSTICE J.M.KHAZI CAV ORDER (PER: THE HON'BLE MS. JUSTICE J.M.KHAZI) This petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, is by the State represented by Lokayukta Police, challenging the impugned order dated 31.01.2020 in Spl. Case No.214/2017 on the file of Special Judge (Lokayukta) and Prl. Sessions Judge, Ballari, Crl.R.P.No.100014/2021 3 discharging the respondent – accused for the offences punishable under Sections 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988, by allowing the application filed by him under Section 239 of Code of Criminal Procedure (hereinafter referred to as ‘the Cr.P.C.’ for short). 2. For the sake of convenience, the parties are referred to by their ranks before the Trial Court. 3. At the relevant point of time accused was working as head of the department and professor in Vijayanagara Institute of Medical Sciences (VIMS), Ballari. Based on the source report, a case came to be registered against the accused in Crime No.02/2014 for the offences punishable under Sections 13(1)(e) read with Section 13(2) of P.C. Act. The source report states that, accused is a resident of Ballari. His father B.P. Obayya retired Head Constable. His mother Padmavatamma was a home maker. The parents of accused had three sons and four daughters. Accused is the eldest. Crl.R.P.No.100014/2021 4 He is married. All his brothers and sisters are separated and living separately. The mother of accused is living with her sons B.Janakiram and B.Jagannatha. Accused is married to Smt.Saraswati and they are having a son and daughter. Daughter is studying in B.E and son has completed PUC, but not employed. Accused and his wife have not inherited any property from their ancestors. 3.1. Accused is residing in a house constructed on Plot Nos.2 and 3, Ward 35, Veeranagouda Colony. Accused has worked as Asst. Professor at VIMS and promoted as Professor. He has worked from 13.11.2008 to 12.07.2012 at VIMS, 13.07.2012 to 16.07.2013 at Mandya as Director. At present he is working as Professor, HOD, Anesthesia, VIMS Ballari. 3.2. On the credible information, discreet enquiry was conducted and source report was submitted which prima facie reveal that accused is leading a lavish life and accumulated wealth disproportionate to his known source of income. On the basis of the source report, case was Crl.R.P.No.100014/2021 5 registered and investigation is taken up. Charge-sheet prima-facie reveal that, the assets acquired by the accused are 49.41% disproportionate to his known source of income. There is prima facie material to frame charge against the accused. Despite the same, the Trial Court has discharged him by allowing the application filed by him under Section 239 of Cr.P.C. 3.3 The impugned order is challenged on the following: GROUNDS i. The impugned order is contrary to law, facts and evidence on record. The Trial Court has not assigned any justifiable grounds and valid reasons for allowing the application filed by the accused and as such is liable to be set aside. Undisputedly, accused is a public servant and prima-facie the properties found in his possession are disproportionate to his known source of income. He has not satisfactorily accounted for the disproportionate assets at his hands. Crl.R.P.No.100014/2021 6 ii. In the APR for the year 1996-97 the accused has shown ₹12,00,000/-. However, he has not produced any material such as Bank account etc., to show that at the time of joining service he was having ₹12,00,000/- cash. The Trial Court without any evidence has come to an erroneous conclusion that accused has accounted for the same. The known source of income of accused is to be established only at the trial. iii. The accused has also claimed that he has borrowed ₹12,00,000/- from Dr.G.Chandrashekar, ₹15,00,000/- from Dr.Mohammad Shafi Uddin, and his wife has borrowed ₹13,00,000/- from Dr.Rehana Fatima and ₹9,00,000/- from Dr.G.Chandrashekar. At the stage of considering the discharge application there is no evidence of these persons and no documents to show whether they had capacity to lend. Therefore, the Trial Court is not justified in accepting the same. iv. When based on the charge-sheet material the Trial Court has taken cognizance, it has erred in discharging Crl.R.P.No.100014/2021 7 the accused, without providing opportunity to the prosecution to prove the allegations in the charge- sheet. Viewed from any angle, the impugned order is not sustainable and prayed to allow the petition, set aside the same and permit the prosecution to lead evidence. 4. In support of his arguments, the learned counsel for complainant/State has relied upon the following decisions. (1) State of Rajasthan Vs. Ashok Kumar Kashyap (Ashok Kumar Kashyap)1 (2) State through Dy.Superintendent of Police Vs. R.Soundirarasu, etc. (Soundirarasu)2 5. On the other hand, learned counsel Sri. Shankar P. Hegde, representing the respondent-accused supported the impugned order and contending that the Investigating Officer has deliberately not taken into consideration the known source of income of the accused and consequently, 1 (2021) 11 SCC 191 2 (2022) AirOnline SC 281 Crl.R.P.No.100014/2021 8 resulted in filing charge sheet showing disproportionate assets of accused at 49.42%. He has not taken into consideration the opening balance of ₹12,00,000/-; has not calculated the agricultural income correctly; not taken into consideration the income of the wife and also the loan borrowed by the accused and his wife from their friends. The valuation of the house is also incorrectly made. He has also erred in income accrued the investment in PPF account and also the investment made by the brother of accused. He has also erred in adding the value of the gold biscuits and assets, which are already declared towards disproportionate assets. The calculation made towards family expenses is also incorrect. He has also erred in showing that accused is having a dog and calculating its expenses. He would submit that the Trial Court has rightly calculated the income and expenditure and allowed the discharge application and there are no justifiable grounds to interfere with same. 6. In support of his arguments, the learned counsel for accused has relied upon the following decisions: Crl.R.P.No.100014/2021 9 (1) Sripada Gouda V/s State by Karnataka Lokayuktha Police Station, Dharwad (Sripada Gouda)3 (2) The State by Lokayukta Police Station, Karwar V/s Shashidhar (Shashidhar)4 (3) Sathish S V/s The state of Karnataka By Karnataka Lokayuktha, Kolar District (Sathish S.)5 7. Heard arguments and perused the record. 8. Before referring to the facts, it is necessary to refer to the decisions relied upon by the learned counsel for the State represented by Lokayukta. 9. It is held in Ashok Kumar Kashyap, that at the stage of Section 227 i.e, framing charge, the Court is required merely to sift evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of grounds would take within its fold 3 2012 SCC OnLine Kar 8883. 4 Cri.P.No.11008/2013, dated 26.03.2019. 5 W.P.No.22483/2023 and connected matters. Crl.R.P.No.100014/2021 10 nature of evidence recorded by police or documents produced before the Court, which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. If it comes to the conclusion that there is sufficient ground to proceed, he will frame charge under Section 228 Cr.P.C, if not, he will discharge the accused. While exercising its judicial mind to facts of the case in order to determine whether case for trial has been made out by prosecution, it is not necessary for Court to enter into pros and cons of matter or into weighing and balancing of evidence and probabilities which is really function of Court, after trial starts. At the stage of framing of charge and/or considering discharge application, mini trial is not permissible. The Hon’ble Supreme Court further held that at the stage of framing of charge and/or discharge application, the defence of accused on merits cannot be taken into consideration. 10. In Soundirarasu the Hon’ble Supreme Court held that the term "known sources of income" used in Section 13 Crl.R.P.No.100014/2021 11 (1) (e) would mean sources known to prosecution and not sources within knowledge of accused. It is for accused to account satisfactory for assets in his hand. Accused cannot make an attempt to discharge onus upon him at the stage of discharge. At the stage of discharge, the Court has to only look into prima facie case and decide whether the case put up by prosecution is groundless. On merits, the Hon’ble Supreme Court further held that the High Court has erred by enquiring into material produced by accused persons, comparing with information compiled by investigation agency and pronouncing a verdict saying that the explanation offered by the accused persons deserves to be accepted. It was further held by the Hon’ble Supreme Court that at the stage of framing charge, the accused does not have a right to afford a chance to explain the alleged dis-proportionate assets to Investigating Officer, before filing of charge sheet. 11. The Hon’ble Supreme Court further held that the expression for which the public servant cannot satisfactorily account, refer to the onus or a burden on the accused to Crl.R.P.No.100014/2021 12 satisfactorily explain and account for the assets proven to be possessed by the public servant. This burden is on the accused as the said facts are within his special knowledge. The explanation to Section 13(1)(e) is a procedural Section which seeks to define the expression 'known source of income' as 'sources known to the prosecution' and not to the accused. The explanation applies and relates to the mode and manner of investigation to be conducted by the prosecution, it does away with the requirement and necessity of the prosecution to have an open, wide and rowing investigation and enquiry into the alleged source of income which the accused may have. It curtails the need and necessity of the prosecution to go into the alleged sources of income which a public servant may or possibly have but are not legal or have not been declared. 11.1. The Hon’ble Supreme Court further held that the undeclared alleged sources are by their very nature are expected to be known to the accused only and are within his special knowledge. The effect of the explanation is to clarify Crl.R.P.No.100014/2021 13 and reinforce the existing position and understanding of the expression "known source of income", i.e, the expression refers to sources known to the prosecution and not sources known to the accused. The prosecution can rely upon the information furnished by the accused to the authorities under the law, rules, and orders for the time being applicable to a public servant. No further investigation is required by the prosecution to find out the known sources of income of the accused/public servant. 11.2. The Hon’ble Supreme Court further held that the word groundless used in Section 239 Cr.P.C. means that there must be no ground for presuming that accused has committed the offence. It means the material placed before the Court do not make out or are not sufficient to make out a prima facie case against the accused. If no prima facie case regarding the commission of any offence is made out, it would amount to a charge being groundless. The only consideration at the stage of discharge or charge is as to whether the allegation/charge is groundless. This would not Crl.R.P.No.100014/2021 14 be the stage for weighing the pros and cons of all the implications of the materials, not for sifting the materials placed by the prosecution. The exercise at the stage of discharge or charge is to be confined to considering the police report and the documents to decide whether the allegations against the accused can be said to be groundless. The test which may, therefore, be applied for determining whether the charge should be considered groundless, is that where the materials are such that, even if unrebutted, would make out no case whatsoever. 12. In the light of the ratio in the above decisions, it is necessary to examine whether there is sufficient material to frame charge against the accused persons and despite the same, whether the Trial Court has erred in discharging them by taking into consideration the material relied upon by the accused, which would be their defence at the trial. The perusal of the impugned order makes it amply clear that instead of examining whether there is a prima facie case to frame charge against the accused or whether the charges Crl.R.P.No.100014/2021 15 levelled against the accused in the charge sheet is groundless, the Trial Court has indulged itself into the exercise of examining the entire material in the charge sheet in the light of the defence put forth by the accused, which is required to be appreciated at the trial after providing opportunity to the prosecution to establish the allegations against the accused person. 13. The accused has claimed that when he joined service he had ₹12,00,000/- and it ought to have taken and the Investigating Officer has failed to take the same into consideration. As per the investigation though in the APR for the year 1996-97, the accused has stated that he is having ₹12,00,000/- cash on hand, but failed to produce any documents and therefore it is not taken into consideration. Despite the fact that the employer has not challenged his claim, burden is on the accused to prove the said fact at trial. Normally it is found that on the ground that the first APR would not be questioned by the employer, the employee is tent to show exaggerated figure of owning assets and later Crl.R.P.No.100014/2021 16 adjusting the same for the subsequent acquisition through bribe. 14. Since in respect of four years the accused has shown his agricultural income as ₹3,70,000/-, the Investigating Officer has rightly taken it as ₹92,500/- per year. Of course at the trial it is for the accused establish that per year he had income of ₹3,70,000/-. 15. The accused has claimed that his wife has barrowed ₹9,00,000/- from Dr.Rehana and ₹13,00,000/- from Dr.G.Chandrashekar his colleagues. Similarly he has barrowed ₹12,00,000/- from Dr.G.Chandrashekar and ₹15,00,000/- from Dr. Mohammed Shafiuddin. Undisputedly if both accused and his wife wanted to borrow money from any other person including his colleagues, it was necessary for the accused to seek permission of his employer and also disclose the purpose of which the same is barrowed. It is also necessary for his colleagues to seek permission of their employer to lend the money to the accused and his wife. Crl.R.P.No.100014/2021 17 While granting permission the employer is required to examine whether the person lending is having dealings with the accused and whether they are having financial capacity to lend the same from legitimate source. 16. Not taking permission from the employer either to borrow or to lend may not be serious misconduct under the service rules. However, it may be a ploy to convert the amount received by illegal means into a legitimate source. It may be a quid pro quo between the colleagues lending through cheques or transfer of money from accounts to legitimized the ill gotten money as a legitimate source. In several government departments where corruption spread from top to bottom, to accept APRs without questioning the same. Despite the fact that the payments are made and received through cheques, it is open to the Trial Court to examine whether the lender had legitimate source to advance such huge amount to the accused and his wife, whether they are reflected in the income tax returns, if so, whether they are true entries. Therefore, the Trial Court is Crl.R.P.No.100014/2021 18 not justified in accepting the defence of the accused at the stage of framing charge. It is matter to be decided at the trial. 17. While making the valuation of the residential house under construction, based on the stage of construction the Investigating Officer has taken its value. The accused has claimed that he has received construction material on credit basis but failed to substantiate the same and therefore the Investigating Officer is justified in valuating the same at `74,25,000/-. It is for the accused to substantiate that the valuation made is not correct. At this stage of deciding the application under Section 239 of Cr.P.C., Trial Court is not justified in indulging in making evaluations without providing opportunity to the prosecution to lead evidence. 18. So far as the purchase of property No.5993/2010- 11 at Suvarnamma Layout, Ballari, though it is stated that three persons have contributed by issuing separate cheques. Based on the investigation, the Investigating Officer has Crl.R.P.No.100014/2021 19 come to the conclusion that a accused has spent ₹3,42,887/-. Similarly, on investigation, it is found that fixed deposit of ₹5,00,000/- standing in the name of accused is not invested by his brother B.K.Janakiram and it was gift not a by him to the accused. Of course, the accused is required to take permission from his employer to accept the said gift and the burden on him to prove that his brother had ₹5,00,000/- to invest in the fixed deposit. Similarly, it is open to the Trial Court it is examine whether the gold biscuits weighing 116.570 grams found in the locker and disclosed in the APR is acquired through legitimate source and rightly ₹3,49,710/- being the value of the said gold biscuits shown towards assets side. 19. Similarly, the valuation of the house hold articles is made by the investigating officer as per the guidelines and on the basis of material available at the raid. Based on the lifestyle of the accused and his family members the expenditure is calculated. Crl.R.P.No.100014/2021 20 20. The Trial Court has exceed its power and indulging in appreciating the charge sheet material in the light of defence that would be available to the accused at the trial. Without providing opportunity to the prosecution to examine the witnesses and if necessary cross examining those witnesses who have said to have lent loan to the accused. Of course accused would get opportunity to lead defence evidence, in which event the prosecution is required to cross examined them to enable the Court to decide whether their evidence is acceptable. In the light of the ratio in decisions of the Hon’ble Supreme Court in Ashok Kumar Kashyap and Soundirarasu refereed to supra, the impugned order has not only caused gross miscarriage of justice, but also suffers from manifest illegality, calling for interference by this Court. 21. In the light of the decisions of the Hon’ble Supreme Court in Ashok Kumar Kashyap and Soundirarasu, the decisions relied upon by the learned counsel for the accused are not applicable to the case on hand. Crl.R.P.No.100014/2021 21 22. In the result, the petition filed by the State deserves to be allowed and the impugned order is liable to be set aside and accordingly the following: ORDER 1. Criminal Revision Petition filed under Section 397 R/w 401 of Cr.P.C. by the State represented by Lokayukta police is allowed. 2. The impugned order dated 31.01.2020 in Special Case No.214/2017 on the file of Special Judge (Lokayukta) and Principal Sessions Judge, Ballari is hereby set aside. 3. The Trial Court is directed to frame charge against the accused and proceed with the matter without unnecessary delay. Sd/- (J.M.KHAZI) JUDGE KBM/sdu/smp