BABURAO MUDBI Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS petition is filed under Section 482 of Cr.P.C. requesting to quash FIR/complainant in crime No. 14/2008 on the file of the 2nd respondent vide Annexure -A and also the order passed by the 1st respondent dated 14.3.2014 vide No. DPAR 185 SAS 2008 Vide Annexure -C and to quash the entire proceedings before the Lokayuktha Court CCH No. 24 in the said crime.

(2.) THE petitioner, in the petition grounds, has urged that the 1st respondent had not considered the documents and the material evidence furnished by the investigating officer before passing the impugned order at Annexure -C. The order impugned is totally a non speaking order and liable to be set aside. The Central Government referred to in the order impugned is not applicable to the facts of the case. It is further urged that the State is acting under Section 19 of the Prevention of Corruption Act (for short 'the Act') and the said Section does not give power to review the earlier order. The order impugned is not based on any new material or fact made available by the investigating agency. Based on the earlier available material, the 1st respondent had no power to review the order. It is well established principles of law that the power of review cannot be accepted on the same set of facts considered earlier. Unless there is change in the material or new fact is brought, the 1st respondent is not entitled to review or reconsider the earlier decision. It is further averred in the petition grounds that the investigating officer submitted a complaint giving wrong details of salary of the petitioner including income of the parents and making a issue of withdrawal of certain amounts from the account of petitioner, which is a declared income. The investigating officer had unnecessarily taken imaginary cost of the house and a site in RMV Layout, whereas the cost of the site was only Rs. 30.00 lakh. However, the cost was taken as Rs. 98,35,000/ - making a difference of Rs. 68,35,000/ -. The investigating officer could not have included in the petitioner's account, the assets of the parents of the petitioner, when they were the independent tax payers. There were various infirmities and the earlier cabinet sub committee took note of and submitted to the cabinet which considered all these aspects along with the reply of the petitioner and came the conclusion that there would be difference of less 10% of income which is permissible as per the judgments of the Hon'ble Supreme Court and refused sanction to prosecute the petitioner. Without considering these aspects, the present Government had taken another decision after review on the same set of facts and granted permission. The report and reply of the petitioner was considered in detail and order was passed refusing to permit prosecution. The petitioner was in service when the previous order at Annexure -B was passed. But, now, after delay of two years after his retirement, the present order is passed. Therefore, there is delay on the part of the 1st respondent and that the petitioner is retired from service after the earlier order refusing to permit prosecution. On this ground also, the impugned order is liable to be set aside.

(3.) HEARD the arguments of learned Senior Counsel and counsel on record appearing for petitioner and also the learned Special Public Prosecutor appearing for the respondent 2 on admission and also on application I.A. No. 2/2014 seeking vacation of the stay order.