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TMI Blog2024 (6) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... 05.12.2016, the ACB registered case in Crime No. 26/2016 and charge sheeted against petitioner and others for the above said offences. It is alleged in the source report that, the petitioner joined his service as Assistant Engineer in the year 1987, then he has passed the KPSC examination and became Assistant Executive Engineer, thereafter he was promoted as Executive Engineer. During the service, he has amassed the wealth in the name of his wife and daughter. His daughter is studying in M.S. Ramaiah Medical College and petitioner is staying in the apartment. The income tax officials conducted raid on 30.11.2016 in the house of the petitioner/accused and they have issued letter to the Chief Secretary, Government of Karnataka with regard to the seizure during the raid. Accordingly, the source report prepared by the ACB police, wherein, it is shown that the petitioner had earned Rs. 80 lakhs from his salary and Rs. 50 lakhs through other sources and total being Rs. 1.30 crores and he is also having landed properties in his name and benami names, for worth of rupees Rs. 5 crores and 35 lakhs. His expenditure was Rs. 25 lakhs and Rs. 1 crore was spent towards medical education of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation. That means the police is required to register the FIR and thereafter should seek permission to investigate the matter. But here in this case, the source report prepared by the police is insufficient. They have not collected proper materials and information from the Income Tax (IT) Department. Therefore, the FIR cannot be registered and investigation also became illegal. It is further contended that the IT case is pending and the co- accused No. 3 has been charge sheeted where he has filed application for discharging the accused No. 3, before the Magistrate, which came to be dismissed and the High Court also dismissed the same. However, the Hon'ble Supreme Court has allowed and proceedings against the accused No. 3 has been quashed. Therefore, it is contended that the petitioner is also entitled for the same relief. 5. Learned senior counsel further contended that the trial court took cognizance, there is no reference in respect of taking twice while taking cognizance regarding obtaining the sanction either under section 19 of PC Act or under section 197 of Cr. P.C. Thereby proceedings is not sustainable. It is also contended by the Learned Senior Counsel regarding kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings and investigated the matter and it is separate and parallel proceedings which is permissible under the law. The IT department is concerned only about verifying whether income is taxable or not, and they cannot initiate the proceedings under the PC Act and punish the public servant. The preliminary enquiry is not required, the source report also not mandatory and there is no statute to prepare source report. Therefore, the source report, and preliminary enquiry is not required. He, further contended, after conducting the IT raid, there is some kind of correspondence between IT department and police department and they shared some information. Based upon the same, the FIR was registered, investigation was conducted. It is further contended that it is permissible five investigation agency they can coordinate to each other as held by Hon'ble Supreme in case of Vijay Rajmohan Vs Central Bureau of investigation reported in (2023) 1 SCC 329. One proceedings cannot be supplemented to the another proceedings, both are totally independent. Unless and until FIR is registered, which is based upon section 17 of the PC Act and registering the FIR after the permission under section 17 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs. 10. Learned counsel for the petitioner in support of his arguments relied upon the various judgments of the Hon'ble Supreme Court and the judgment of the High Court in WP. No. 3107/2024 in case of Sri. N. Satish Babu Vs Lokayuktha and Anr and in WP No. 13460/2023 in case of Sri. T.N. Sudhakar Reddy Vs Lokayuktha and other judgments. The learned counsel for the respondent also relied upon the various judgments of Hon'ble Supreme Court. 11. Having heard the arguments of learned senior counsel for the petitioner and learned special counsel for Lokayuktha and perused the records. On perusal of the same, which reveals the income tax authorities have conducted raid i.e., search and seizure in the house of the petitioner on 30.11.2016 and they said to have seized some cash, jewellery and documents relating to the financial transactions and they took up the investigation. Subsequently, the income tax authorities have sent a letter to the Chief Secretary, Government of Karnataka on 2.12.2016 intimating the search and seizure of documents and valuables in the house of the petitioner and they have stated they are conducting the investigation, which is under progress. Based upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation, Bangalore, under the provisions of the section 18 of the Prevention of Corruption Act 1988 to inspect the bankers books in so far as it relates to the accounts of the persons suspected to be holding money on behalf of the said Sri T.N. Chikkarayappa, Managing Director of Cauvery Neeravari Nigam, Bengaluru and to take or cause to be taken certified copies of the relevant entries there from and the bankers concerned shall be bound to assist the police officer Sri Vazeer Ali Khan, Deputy Superintendent of Police, Anti Corruption Bureau, Bangalore City Police Bangalore, in the exercise of the powers under the said section of law." 14. As per the judgment of the coordinate bench as well as the order passed by the court in similar cases in Sri. N. Satish Babu Vs State by Lokayuktha in Writ Petition No. 3107/2024 wherein this court relied upon the judgments of the coordinate bench passed in (1) W.P. No. 43817/2018 (GM-RES) in case of Navaneeth Mohan N Vs. SHO, ACB, Bengaluru dated 21.04.2021, (2) W.P. No. 15886/2022 (GM-RES) in case of Balakrishna H.N. Vs. State of Karnataka by ACB, Mysuru, dated 03.01.2023 and (3) In case of Charansingh Vs. State of Maharashtra & Ors., rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections 161, 165 and 165-A, IPC and under Section 5 of the Act without orders of Magistrates specified there- in or without authorisation of the State Government in this behalf and from effecting arrests for those offences without a warrant. See also A.C. Sharma v. Delhi Administration". 7. Learned counsel also relied upon the judgment of the Hon'ble Supreme Court in Charansingh v. State of Maharashtra & Ors, Hon'ble Supreme Court held in paragraph Nos. 15 and 15.1 are as under; "15. While expressing the need for a preliminary enquiry before proceeding against public servants who are charged with the allegation of corruption, it is observed in P. Sirajuddin³ that: (SCC p. 601, para 17), "before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of indulging into corrupt practice and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person who is occupying the top position in a department, even if baseless, would do incalculable harm not only to the officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial was placed before him to grant permission to register the FIR and investigate the matter. In the order of Superintendent Police absolutely, there is no reference to submission of any documents along with the source report. In one stroke the Superintendent of Police says that he is convinced that it is a fit case to register the FIR and investigate the case. He does not even say that any preliminary enquiry was conducted prior to placing source report before him. Therefore, there is clear violation of the direction issued by the Hon'ble Supreme Court in Lalitha Kumari's case in registering the FIR. 16. In the judgment of the Hon'ble Supreme Court in Charansingh Vs. State of Maharashtra and others in Crl.A.No. 363/2021 dated 24.03.2021 relied upon by the learned Spl. Public Prosecutor himself, in para 12 it was held that before registering the FIR a preliminary enquiry shall be conducted either confidential or open enquiry." 9. Another coordinate bench in Balakrishna's case stated supra also taken similar view and has held at paragraph 12 as under; "12. If the reasons rendered by Apex Court are noticed, two factors would emerge one, that the prosecution is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate the matter. In this case, after according permission by the SP, the FIR has been registered. Absolutely there is no preliminary enquiry conducted by police. FIR was also not registered prior to order of SP. The coordinate bench of this court while considering the Lalita Kumari's case in Balakrishna's case stated supra had quashed the criminal proceeding and another coordinate bench in WP. No. 43817/2018 in Navaneeth Mohan's case also had quashed the criminal proceedings based upon the non-compliance of the guidance issued by the Hon'ble Supreme Court in the Lalita Kumari's case and Charan Singh's case stated supra. Therefore, considering the facts and circumstances of the case, there is clear violation of guidelines issued in Lalita Kumari's case and Charan Singh's case and in view of the judgment of the Hon'ble Supreme Court in Bhajan Lal's case, the prosecution launched by the respondent is abuse of process of law. It is not a fit case for investigating the matter and FIR is liable to be quashed. Accordingly, this petition is allowed." 15. This court also held in case of T.N. Sudhakar Reddy Vs State of Karnataka in Crl.P.No. 13460/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or investigating the matter and registering the FIR. Therefore, the very investigation itself vitiates as it is illegal and incurable defect. 17. Learned senior counsel also contended the income tax authorities have taken up the investigation and initiated the proceedings under Section 135 of the Income Tax Act, which is a judicial proceedings. Admittedly the letter of the IT department sent by the Chief Secretary where it is clearly mentioned that they have seized some documents, cash and jewelleries in the house of the accused during the raid and they have categorically stated the investigation is under progress and they have not mentioned what was the actual investigation report conducted by them and they have not concluded the investigation in order to show there was huge properties or assets than the known source of income, when they have not completed investigation and in the given findings in the proceedings, it is not possible to come to any conclusion that there was disproportionate asset or properties than the known source of income. Even the investigation authorities have not filed any complaint to the special court against the petitioner for not paying any income taxes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the case on hand, since the very basic ingredients are absent in this case, while registering the FIR or starting the investigation. Apart from that, the criminal proceedings against accused No. 3 who alleged to be benami of the petitioner where Hon'ble Supreme Court already quashed the Criminal proceedings. Though it is contended the income tax raid and subsequently the ACB conducted raid on the same places they said to have 799.13% of disproportionate assets but there is no details in the source report and also there is no preliminary enquiry conducted by the ACB police. 19. There is no basic foundation in this case to say that the petitioner was having so much assets and liabilities at the time of joining the service and Subsequently he has amassed the assets, absolutely there is no material place either in the source report or in the FIR or in the charge sheet. Totally blank regarding the assets and liabilities which were declared by the petitioner while joining the service. The prosecution blindly stated, he has amassed the property between 1987 to till date but there is no details in the case records. Therefore, continuing proceedings is nothing but abuse of process ..... X X X X Extracts X X X X X X X X Extracts X X X X
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