REHMAN ROSHAN BAIG Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Initially, this petition was filed under Section 482 of Cr.P.C. seeking to quash the PCR No.34/2012(FIR in Cr.No.66/2012) and entire proceedings in Spl.C.C.No.341/2018 pending on the file of LXXXI Addl. City Civil and Sessions Judge, Bengaluru(Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka). Subseqently, by way of amendment, the petitioners have sought to quash the order dated 12.07.2012 passed by learned Special Judge referring the complaint for investigation under section 156(3) Cr.P.C. and also the order dated 05.05.2018 taking cognizance and issuing summons to the petitioners.

(2.) The outline facts of the case are as follows:-

(3.) The aforesaid order dated 12.07.2012 and the entire proceedings pending on the file of learned Special Judge including the order of reference and the order of cognizance are challenged in this petition mainly on the ground that the procedure followed by the learned Special Judge is not in accordance with law; the learned Special Judge has failed to follow the procedure contemplated in sections 202 and 204 Cr.P.C; the sworn statement of respondent No.2/complainant was not recorded before issuing process to accused Nos.2 and 3; the list of witnesses was not filed alongwith the complaint; the order of reference under section 156(3) Cr.P.C. is not a speaking order and the same is opposed to the law laid down by this Court as well as by the Hon'ble Supreme Court of India; the reasons assigned by the learned Special Judge to reject the 'B' summary report is contrary to the material collected by the investing agency which prima-facie disclose that the disproportionate assets found in the possession of the petitioners were less than 10%. Under the said circumstances, in view of the law laid down by the Hon'ble Supreme Court in KRISHANAND AGNIHOTRI v. THE STATE OF MADHYA PRADESH , (1977) 1 SCC 816, the learned Special Judge has committed an error in reversing the opinion of the Investigating Officer. Further it is contended that the learned Special Judge having not taken cognizance of the offence against public servant for want of sanction, could not have proceeded against accused Nos.2 and 3 who are the private parties on the ground that they abetted the offences committed by the Public servant. When the learned Special Judge has failed to take cognizance of the main offence issuance of summons to the petitioner Nos.2 and 3 is bad in law and contrary to the procedure contemplated under the Code and the law laid down by this Court and the Hon'ble Apex Court of India.