MR. 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:- Respondent No.2 presented a private complaint under section 200 Cr.P.C. seeking action against the petitioners for the alleged offences punishable under sections 167, 409, 415, 420 IPC and section 13(1) (c), (d) and (e) of Prevention of Corruption Act, 1988. It was numbered as PCR No.34/2012. The learned Special Judge by order dated 12.07.2012 referred the complaint to Superintendent of Police, Karnataka Lokayukta, Bangalore Urban for investigation under section 156(3) Cr.P.C. Accordingly, the FIR in Cr.No.66/2012 was registered against the petitioners. After investigation, 'B' summary report was submitted before the Court on 10.01.2014. On 14.07.2014, the complainant sought time to give his sworn statement. Accordingly, the matter was adjourned for recording the sworn statement of the complainant. However, on 18.11.2014, when the matter was taken up, the complainant filed his reply as protest petition to the report dated 17.05.2014 and the counsel representing the complainant made a submission that appropriate order be passed as the complainant has nothing more to submit and that he does not choose to give sworn statement. Learned Special Judge by order dated 05.05.2018 accepted the report submitted by the Investigating Officer and took cognisance of the offences against accused Nos.2 and 3 in respect of offences punishable under section 409, 420 IPC and sections 13(1) (c), 13(1) (d) and 13(1) (e) r/w 13(2) of IPC. However, insofar as petitioner No.1/accused No.1 is concerned, he being an elected MLA from Shivajinagar constituency and cabinet minister in the Government of Karnataka, the learned Special Judge directed the Investigating Officer to submit copy of the investigation report before the competent authority and to seek for sanction for prosecution of accused No.1 and to submit his report.

(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.