R. UMESHAPPA Vs. THE STATE OF KARNATAKA

JUDGEMENT

(1.) These petitions are heard and disposed of together, as the same are inter-related. In Crl.R.P.1227/2016: The first petitioner is said to be an Executive Engineer, Minor Irrigation Division, Tumakuru and is a resident of Tumakuru. The second petitioner is the daughter of the first petitioner and is a resident of Bangalore. It transpires that the Lokayuktha Police, Tumakuru, had filed an FIR before the Court of the Special Judge, in Crime No.1/2016 for an offence punishable under Sections 7 , 13(1) (d) read with Section 13 (2) of the Prevention of Corruption Act , 1988, (Hereinafter referred to as 'the PC Act ', for brevity) against the petitioner no. 1 and another. It is said that he was arrested and taken into custody, simultaneously his house was said to have been searched. This was between 2:30 and 8:00 p.m. on 16.1.2016. Based on the source report submitted by the Deputy Superintendent of Police, Lokayuktha, Tumakuru, an FIR is said to have been registered for an offence under Section 13 (1) (e) read with Section 13 (2) of the PC Act on 4.2.2016 against petitioner no.1 alleging that he has amassed wealth disproportionate to his known sources of income. During the course of the search, several valuables and property including cash was said to have been seized. The case is said to be still under investigation.

(2.) The learned counsel contends that in spite of the petitioners having placed adequate material before the court below to demonstrate that the properties seized could not be treated as properties belonging to the accused and that the same ought to released in favour of the true owners, the court below having held that the investigation is yet to be completed and hence the application for release of the articles could not be entertained, has resulted in a gross miscarriage of justice. Hence the intervention of this court is sought for. In Crl.P.6883/2016:

(3.) It is contended that even if it could be said that a preliminary enquiry is permissible in a corruption case, a search and seizure and gathering of evidence - even before the registration of an FIR , if is impermissible as laid down by the Apex Court in Lalita Kumari v. Govt. Of UP , AIR 2014 SC 187, the exercise now carried out in transferring the properties seized in Crime no.1/2016, to sustain the case which is subsequently registered in Crime no.3/2016 - has resulted in enabling the prosecution to carry out indirectly, what was not permissible directly. In that, if an investigation in respect of a cognizable offence is prohibited, without registration of an FIR, the transfer of the seized properties seized in one case and reliance on the same as the basis for a case registered subsequently, would be opposed to the settled law. It is emphasized that a search and seizure can never be characterized as being in the realm of a preliminary enquiry, to draw sustenance from the exception carved out in Lalita Kumari's case. The preliminary enquiry contemplated is such enquiry which is carried out to ascertain whether there is commission of a cognizable offence and nothing more. Hence the learned counsel for the petitioner seeks that the proceedings in the case in Crime no.3/2016 be quashed.