The Construction Of Their Home. The Same Has Been Mentioned In The Income Tax Returns And Declared To The State Government v. State Of Karnataka

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25 DAY OF APRIL, 2024 BEFORE THE HON'BLE MR JUSTICE K.NATARAJAN CRIMINAL PETITION NO.413 OF 2024 BETWEEN: K. K RAGHUPATHY S/O LATE KAPINAPPA, AGED ABOUT 52 YEARS, OCCUPATION: EXECUTIVE ENGINEER, CURRENTLY WORKING IN HARANGI PROJECT CIRCEL,KUSHALNAGARA TALUK, KODAGU - 571 234. ...PETITIONER (BY SRI. P. PRASANNA KUMAR, ADVOCATE FOR SRI. CHETAN JADHAV, ADVOCATE) AND: STATE OF KARNATAKA BY LOKAYUKTA POLICE MYSORE, REPRESENTED BY ITS SPL. PUBLIC PROSECUTOR,HIGH COURT OF KARNATAKA BUILDING, BANGALORE - 560 001. ...RESPONDENT (BY SRI. B. B. PATIL, SPECIAL COUNSEL) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO ALLOW THIS CRL.P BY QUASHING THE CRIMINAL PROCEEDINGS AGAINST THE PETITIONER PENDING IN FIR / CR.NO.11/2023, DATED 16.08.2023 REGISTERED BY THE RESPONDENT LOKAYUKTA POLICE, MYSORE AND PENDING ON THE FILE OF THE III ADDL.CIVIL AND SESSIONS JUDGE AND SPL.JUDGE, MYSORE FOR THE OFFENCE P/U/S 13(1)(B) R/W 13(2) OF P.C ACT. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 21.03.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: RESERVED FOR ORDERS ON: 21.03.2024 PRONOUNCED ON : 25.04.2024 ORDER This petition filed by the petitioner-accused under Section 482 of Cr.P.C. for quashing the FIR in Crime No.11/2023 registered by Lokayuktha Police, Mysuru pending on the file of III Additional Civil and Sessions Judge and Special Judge, Mysuru for the offences punishable under Section 13(1)(b) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'P.C. Act'). 2. Heard the arguments of learned counsel for the petitioner and learned Special counsel for the respondent-Lokayuktha. 3. The case of the prosecution is that the petitioner said to be entered into Government service on 04.08.2003 as Assistant Executive Engineer and promoted as Executive Engineer and on the basis of the source report collected by the respondent-Police on 07.07.2023, the petitioner said to be acquired assets to the tune of Rs.2,56,29,025/- and approximate expenditure was Rs.41,18,330/- and total value of income from all sources was Rs.1,10,00,000/- and thereby, he was in possession of disproportionate assets of about Rs.1,87,47,355/- amounting to 170.43%. Based upon the source report, the respondent-police registered the FIR and took up the investigation which is under challenge. 4. The learned counsel appearing for the petitioner has contended that the investigation agency registered a false case against the petitioner and he has not committed any offence and the material collected by the Investigating agency is wholly insufficient to proceed with the investigation. The petitioner is having unblemished record and he is declaring his assets and liabilities to the State Government and Income tax authorities. The wife of the petitioner is having her own source of income and she also filed income tax returns. The mother-in-law of the petitioner Prema has availed loan from the Nationalised Bank for the construction of their home. The same has been mentioned in the Income Tax returns and declared to the State Government. 5. It is further contended that the Superintendent of Police without application of mind to the source report has mechanically given consent for investigating the matter and hence, the order under Section 17 of the P.C. Act is totally of non application of mind. In the source report, the police have not included the income received by the petitioner as well as loan borrowed by his mother-in-law and even there was raid conducted on his house and the office, but not find anything. Hence, conducting investigation is abuse of process of law and hence, the FIR liable to be quashed. 5. It is further contended that the Superintendent of Police without application of mind to the source report has mechanically given consent for investigating the matter and hence, the order under Section 17 of the P.C. Act is totally of non application of mind. In the source report, the police have not included the income received by the petitioner as well as loan borrowed by his mother-in-law and even there was raid conducted on his house and the office, but not find anything. Hence, conducting investigation is abuse of process of law and hence, the FIR liable to be quashed. 6. Learned counsel further contended that during the course of argument that the cheque paid is blank, the preliminary enquiry not conducted and once the source report prepared by the police and after making preliminary enquiry, the FIR required to be registered and then the FIR, source report and preliminary enquiry report shall be forwarded to the S.P. and in turn, the S.P. required to pass an order by application of mind for investigating the matter by appointing the Investigation Officer. But the same is not done and the order is of non application of mind. The order of the S.P. for registering the FIR and investigating the matter based upon the source report is illegal in view of the judgment of the Hon'ble Supreme Court in the case of State of Haryana and Others vs.Bhajanlal and Others reported in 1992 SCC (Cri) 426 and further contended that the learned S.P. has ordered the Police Inspector for investigating the matter which is illegal as per Section 17(c) of P.C. Act. The investigation shall be conducted only the rank of Dy.S.P. and not below the rank of Dy.S.P. and as per proviso 2 of P.C. Act, the State Government required to pass special or general order for appointing the Inspector of Police who is below the rank of Dy.S.P. to investigate the matter. Therefore, the order of S.P. for investigating the matter by the Police Inspector one Umesh is against the Proviso 2 of 17(c) of P.C. Act. Therefore, the FIR liable to be quashed. Hence, prayed for allowing the petition. 7. Per contra, learned counsel for the respondent has contended that in respect of non application of mind, the Hon'ble Supreme Court has clearly held in the case of State of M.P. and Others vs. Ram Singhreported in(2000) 5 SCC 88and the State Government has passed a general order by appointing the Inspector of Police to investigate the matter as per proviso 1 of Section 17 of P.C. Act on 06.02.1991 and subsequently, in view of creation of ACB, the said order was rescinded and later, the creation of ACB was quashed by the High Court, thereafter, the State Government passed one more order on 09.09.2022 that after abolishing the ACB. The order of the State Government for giving authorisation to the ACB police has been withdrawn and the earlier order of the State Government dated 06.02.1991, 08.05.2002 and 05.12.2002 have been resumed. Therefore, as per the general order of the State Government where the Police Inspectors are permitted to investigate the matter, therefore, the S.P. has rightly appointed the Police Inspector to investigate the matter. Therefore, prayed for dismissing the petition. 8. Learned counsel further contended that the petitioner has not urged the grounds in the petition regarding appointment of the Police Inspector by the S.P. and even otherwise, the general order of the State Government empowers the Police Inspector to investigate the matter and hence, prayed for dismissing the petition. 9. In support of the contention both the learned counsel for the petitioner and respondent have relied upon the judgments of the Hon'ble Supreme Court, order of the Co-ordinate Bench and order of this Court. 8. Learned counsel further contended that the petitioner has not urged the grounds in the petition regarding appointment of the Police Inspector by the S.P. and even otherwise, the general order of the State Government empowers the Police Inspector to investigate the matter and hence, prayed for dismissing the petition. 9. In support of the contention both the learned counsel for the petitioner and respondent have relied upon the judgments of the Hon'ble Supreme Court, order of the Co-ordinate Bench and order of this Court. 10. The main contention of the learned counsel for the petitioner is that the FIR was not registered by the Police and merely based upon the source report, the S.P. passed the order for investigating the matter by registering the FIR. Therefore, it is contended in view of the judgment of the Hon'ble Supreme Court in the case of Bhajanlal stated supra, the FIR cannot be sustained. The Hon'ble Supreme Court in Bhajanlal's case has held at paragraph No.131 of the judgment as under: ”131.From the above discussion, we hold that (1) as the salutary legal requirement of disclosing the reasons for according the permission is not complied with; (2) as the prosecution is not satisfactorily explaining the circumstances which impelled the SP to pass the order directing the SHO to investigate the case; (3) as the said direction manifestly seems to have been granted mechanically and in a very casual manner, regardless of the principles of law enunciated by this Court, probably due to blissful ignorance of the legal mandate and (4) as, above all, the SHO has got neither any order from the Magistrate to investigate the offences under Sections 161 and 165 IPC nor any order from the SP for investigation of the offence under Section 5(1)(e) of the Prevention of Corruption Act in the manner known to law, we have no other option, save to quash that order of direction, reading "investigate" which direction suffers from legal infirmity and also the investigation, if any, so far carried out. Nevertheless, our order of quashing the direction of the SP and the investigation thereupon will not in any way deter appellant 1, the State of Haryana to pursue the matter and direct an investigation afresh in pur- suance of the FIR, the quashing of which we have set aside, if the State so desires, through a competent police officer, clothed with the legal authority in strict compliance with Section 5-A(1) of the Act." 11. Here in this case, the S.P. after receipt of the source report, passed the order which is as under: "Received this Source report from Smt. Jayarathna PI Karnataka Lokayuktha P.S. Mysore on 07.07.2023 and gone through the source report in detail. And forwarded the same along with authorisation letter as per Under section 17 of P.C. Act 1988 to Sri Umesh P.I. KLA PS, Mysore for necessary action as per the law." 12. Based upon the order of S.P., the FIR has been registered by the Lokayuktha police as per the endorsement made on the FIR which is as under: "FIR received on 16/8/2023 at 4.15 P.M. in a sealed cover with source report through CPC Puttegowda of KLPS, Mysuru." 13. On perusal of the order of the S.P., which reveals, on the back side of the source report, he has made an endorsement by permitting the Police Inspector to register the FIR. Based upon the above said endorsement, the FIR has been registered by the Lokayuktha Police. On perusal of the said endorsement, it clearly reveals that there is no application of mind by the S.P. and he has just stated "gone through the source report in detail and forwarded the same along with the authorisation letter as per Section 17 of the P.C. Act'. Absolutely, there is no application of mind for having forwarded the source report for registering the FIR by the S.P. However, he has passed separate one more order which is not accompanied with the FIR where once again, he has passed order under Section 17 of the P.C. Act and it is read as under: "KARNATAKA LOKAYUKTA, MYSURU DIVISION, MYSURU. No.KLA/SP/M.D/SOURCE/06/2023. Dated: 16-08-2023 by the S.P. However, he has passed separate one more order which is not accompanied with the FIR where once again, he has passed order under Section 17 of the P.C. Act and it is read as under: "KARNATAKA LOKAYUKTA, MYSURU DIVISION, MYSURU. No.KLA/SP/M.D/SOURCE/06/2023. Dated: 16-08-2023 PROCEEDINGS OF THE SUPERINTENDENT OF POLICE,KARNATAKA LOKAYUKTHA, MYSURU DIVISION, MYSURU. Sub: Possession of properties disproportionate to known source of income by Sri. K.K Raghupathi, Superintendent Engineer, Harangi Project Circle, Kushalanagara Taluku, Kodagu District. Ref: Source Report submitted by Smt. Jayarathna, M, Police Inspector-1, Karnataka Lokayuktha, Mysuru Police Station, Dated 07-07-2023. *** I have gone through the source report submitted by Smt. Jayarathna, M, Police Inspector-1, Karnataka Lokayuktha, Mysuru Police Station relating to her receipt of credible information that Sri. K.K Raghupathi, Superintendent Engineer, Harangi Project Circle, Kushalanagara Taluku, Kodagu District has acquired properties disproportionate to his known source of income to the extent of Rs. 1,87,47,355/- and there by committed an offence under section 13(1)(b) r/w 13(2) of Prevention of Corruption Act 1988 (Amendment Act-2018). From the material placed before me and with application of my mind I am satisfied that a prima-facie case is made out against Sri. K.K Raghupathi, Superintendent Engineer, Harangi Project Circle, Kushalanagara Taluku, Kodagu District, Warranting a statutory investigation for an offence under section 13(1)(b) r/w 13(2) of Prevention of Corruption Act 1988 (Amendment Act-2018). -ORDER NO.KLA/SP/M.D/INV/Mysuru/06/2023, DATED 1608-2023. Therefore by virtue of the powers vested in me under provisions of Section 17 of the Prevention of Corruption Act 1988(Amendment Act-2018), I, S. Sureshbabu, Superintendent of Police, Karnataka Lokayuktha, Mysuru Division, Mysuru order that Sri. Umesh. P, Police Inspector-3, Karnataka Lokayuktha, Mysuru Police Station, Mysuru, to register a case under Section 13(1)(b) r/w 13(2) of Prevention of Corruption Act 1988 (Amendment Act-2018) against Sri. K.K Raghupathi, Superintendent Engineer, Harangi Project Circle, Kushalanagara Taluku, Kodagu District and to investigate the said case. I know Sri. Umesh. P, Police Inspector-3 is having the knowledge of investigation of the cases registered under P.C. Act and also he is having previous experience of investigation of disproportionate Asset cases. Further I authorise Sri. Umesh. P, Police Inspector-3, Karnataka Lokayuktha, Mysuru Police Station under the provisions of the section 18 of the Prevention of Corruption Act 1988 to inspect the bank accounts in so for as it related to the accounts of the persons suspected to be holding money on behalf of the said Sri. K.K Raghupathi, Superintendent Engineer, Harangi Project Circle, Kushalanagara Taluku, Kodagu District and to take or cause to be taken certified copies of the relevant statements of bank accounts there from and the bankers concerned shall be bound to assist the police officer Sri. Umesh. P, Police Inspector-3, Karnataka Lokayuktha, Mysuru Police Station, Mysuru in the exercise of the powers under the said section of law. (S. Sureshbabu) Superintendent of Police Police Wing Karnataka Lokayukta Mysore Divn., Mysore. To: Sri. Umesh. P, Police Inspector-3, Karnataka Lokayuktha, Mysuru District." Karnataka Lokayuktha, 14. On perusal of the paragraph No.2 of the order, merely he has stated that he has applied his mind and satisfied that the prima facie case is made out that itself cannot be considered as an application of mind by the S.P. and even he has not properly verified what is the income, what is the expenditure, what is the assets, nothing has been forthcoming except stating that he has applied his mind. Therefore, the learned counsel for the petitioner has (S. Sureshbabu) Superintendent of Police Police Wing Karnataka Lokayukta Mysore Divn., Mysore. To: Sri. Umesh. P, Police Inspector-3, Karnataka Lokayuktha, Mysuru District." Karnataka Lokayuktha, 14. On perusal of the paragraph No.2 of the order, merely he has stated that he has applied his mind and satisfied that the prima facie case is made out that itself cannot be considered as an application of mind by the S.P. and even he has not properly verified what is the income, what is the expenditure, what is the assets, nothing has been forthcoming except stating that he has applied his mind. Therefore, the learned counsel for the petitioner has rightly contended that the order passed by the S.P. is not in accordance with law and the judgment of the Hon'ble Supreme Court in Bhajanlal's case stated supra is squarely applicable to the case on hand at paragraph No.18 wherein, it is held that the Director General of Police (DGP) sent the endorsement to the S.P. and the S.P. has made his endorsement as "Please register a case and investigate". Here in this case, similarly the S.P. ordered for register the FIR and investigate the matter. 15. Apart form that, the learned counsel for the petitioner has contended that even otherwise, the police are not made any preliminary enquiry after receipt of the source report and not registered the FIR prior to sending the source report and FIR to the S.P. for authorising to investigate the matter as per proviso 2 of the P.C. Act. In this regard, the petitioner counsel relied upon the judgment of this Court in the case of N.Satish Babu vs. State and Another in Writ PetitionNo.3107/2024 dated 01.03.2024 has held at paragraph Nos.6, 7, 8, 9 and 10 of the order which are as under: "6. Having heard the arguments, perused the records. The main contention of the learned counsel for the petitioner is that the Section 17, proviso 2 of the PC Act, was not followed, which is mandatory in nature. Prior to according permission, the SP is required to verify the source report and should make preliminary enquiry and to register FIR. Thereafter, shall pass the order under Section 17 of PC Act, for investigating the matter. But here in this case, no FIR was registered and based upon the source report, he has accorded the permission under Section 17 proviso 2 of the PC Act. In support of his case, learned counsel relied upon the judgment of the Hon'ble Supreme Court in Bhajan lal's case stated supra. Hon'ble Supreme Court has held at paragraph 128 as under: "128. The conspectus of the above decisions clearly shows that the granting of permission under Section 5-A authorising an officer of lower rank to conduct the investigation is not to be treated by a Magistrate as a mere matter of routine, but it is an exercise "128. The conspectus of the above decisions clearly shows that the granting of permission under Section 5-A authorising an officer of lower rank to conduct the investigation is not to be treated by a Magistrate as a mere matter of routine, but it is an exercise of his judicial discretion having regard to the policy underlying and the order giving the permission should, on the face of it, disclose the reasons for granting such permission. It is, therefore, clear in the light of the above principle of law that the Superintendent of Police or any police officer of above rank while granting permission to a non-designated police officer in exercise of his power under the second proviso to Section 5-A(1), should satisfy himself that there are good and sufficient reasons to entrust the investigation with such police officer of a lower rank and record his reasons for doing so; because the very object of the legislature in enacting Section 5-A is to see that the investigation of offences punishable under Section 161, 165 or 165-A of Indian Penal Code as well as those under Section 5 of the Act should be done ordinarily by the officers designated in clauses (a) to (d) of Section 5-A(1). The exception should be for adequate reasons which should be disclosed on the face of the order. In this connection, it is worthy to note that the strict compliance with Section 5-A(1) becomes absolutely necessary, because Section 5- A(1) expressly prohibits police officers, below certain ranks, from investigating into offences under Sections 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 in particular but to the department he belonged to in general. If the Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this Department. It is further observed that: (P. Sirajuddin case³, SCC p. 601, para 17) "when such an enquiry is to be held for the purpose of finding out whether criminal proceedings are to be initiated and the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the person against whom the allegations are made and documents bearing on the same to find out whether there is a prima facie evidence of guilt of the officer, thereafter, the ordinary law of the land must take its course and further enquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report." It is further observed that: (P. Sirajuddin case³, SCC p. 601, para 17) "when such an enquiry is to be held for the purpose of finding out whether criminal proceedings are to be initiated and the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the person against whom the allegations are made and documents bearing on the same to find out whether there is a prima facie evidence of guilt of the officer, thereafter, the ordinary law of the land must take its course and further enquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report." 15.1. Thus, an enquiry at pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income. After the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if, on the basis of the material collected during such enquiry, it is found that the complaint is vexatious and/ or there is no substance at all in the complaint, the FIR shall not be lodged. However, if the material discloses prima facie a commission of the offence alleged, the FIR will be lodged and the criminal proceedings will be put in motion and the further investigation will be carried out in terms of the Code of Criminal Procedure. Therefore, such a preliminary enquiry would be permissible only to ascertain whether cognizable offence is disclosed or not and only thereafter FIR would be registered. Therefore, such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made. 8. Learned counsel also relied upon the coordinate bench in Navaneeth Mohan's casestated supra at paragraph Nos.15 and 16 as under; "15. The source report which is part of Annexure-A submitted before Superintendent of Police, ACB, Bengaluru, the note of Superintendent of Police, ACB do not indicate that along with the said report any material 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 paragraph12 as under: 12. If the reasons rendered by Apex Court are noticed, two factors would emerge one, that the prosecution is required to draw up source report after conducting some sort of a preliminary enquiry to know the assets of the Government servant and two, after the source information report is placed before the Superior Officer - Superintendent of Police, he has to verify as to whether a crime should be registered or otherwise. If these principles that would emerge from the judgment of the Apex Court are considered qua the facts obtaining in the case at hand, the registration of the crime would fall foul of the principles laid down by the Apex Court and that of this Court in the afore-quoted judgment. Therefore, on this short ground that the source information report disclosed blatant non-application of mind and non-conduct of preliminary inquiry as is necessary in law only in cases concerning disproportionate assets. 10. In view of the judgment rendered by Hon'ble Supreme Court as well as coordinate benches of this court and looking to the fact of the case, where the superintendent of police have granted permission on 8.1.2024 and directed the Dy.SP to investigate the matter. The said order has been passed just based upon the source report submitted by one Ramakrishna Dy.SP -06. On perusal of the order it does not reveal the application of mind by the SP directing to register and investigate the matter. Just that he has passed the order as per the source report of the Dy.SP-06 and he has authorised to register and investigate the case. But learned SP has not at all applied his mind as to how the said figure was required to be investigated and registered the FIR. The coordinate bench has held in the Balakrishna's case stated supra, the source report, if makes out a cognizable offence, the police officer can register the FIR by making a preliminary enquiry then forward the FIR as well as preliminary enquiry report, along with the source report to the SP for according permission to investigate the matter. However, herein this case, it is a clear violation of the mandatory provision of Section 17 (proviso 2) of PC Act. In the Charan Singh's case stated supra, has considered the same. Here in this case, even if there is no preliminary enquiry to be conducted by the police in order to know the veracity of the source report and if the cognizable offence is made out, they have registered FIR and then forwarded the same to SP for according the permission to investigate 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." 16. Here in this case, though the petitioner not made out a ground in the petition, but it is a mandatory provision to be followed by the Lokayuktha police in disproportionate assets case, where based upon the source report, they have to make preliminary enquiry and thereafter, register the FIR. If the cognizance case is made out, then forward the same to the S.P. for seeking permission to investigate the matter and in turn, the S.P. has to pass an order under Section 17 of the P.C. Act by application of mind. But nothing has been found in the order passed by the S.P. 17. That apart, there was a circular issued by the DGP of Karnataka Lokayuktha to the Lokayuktha police as to how to investigate the matter and how to register the FIR and the said KARNATAKA LOKAYUKTA LOK/DGP/CIRCULAR-01/2023 Office of the Director General of Police Karnataka Lokayukta, M.S.Building, Bengaluru-560001. Date: 11/05/2023. CIRCULAR Sub: Guidelines to be followed by the Investigating officers while Investigating Disproportionate Asset (DA) cases-reg. **** With a view to standardise investigation of Disproportionate Asset (DA) cases the following directions are issued for immediate compliance by all the Investigation Officers (I.O) henceforth. These directions will also apply to DA cases under Investigation currently. how to investigate the matter and how to register the FIR and the said KARNATAKA LOKAYUKTA LOK/DGP/CIRCULAR-01/2023 Office of the Director General of Police Karnataka Lokayukta, M.S.Building, Bengaluru-560001. Date: 11/05/2023. CIRCULAR Sub: Guidelines to be followed by the Investigating officers while Investigating Disproportionate Asset (DA) cases-reg. **** With a view to standardise investigation of Disproportionate Asset (DA) cases the following directions are issued for immediate compliance by all the Investigation Officers (I.O) henceforth. These directions will also apply to DA cases under Investigation currently. i. All DA cases shall be registered only after a. Submission of detailed Source Information Report (SIR) by the generating officer to the Unit Superintendent of Police (SP), followed by Report (SIR) by the generating officer to the Unit Superintendent of Police (SP), followed by b. Thorough verification of the SIR by the Unit SP and submission of the same to DGP/ADGP KLA, and c. Obtaining orders of the DGP/ADGP ii. All SIRs submitted for orders of DGP/ADGP, shall contain A, B, C and D statements and calculation of DA as per Annexure-1 and comments of the Unit SP on being satisfied with the SIR. shall contain A, B, C and D statements and calculation of DA as per Annexure-1 and comments of the Unit SP on being satisfied with the SIR. shall contain A, B, C and D statements and comments of the Unit SP on being satisfied iii. Upon receipt of orders from DGP/ADGP KI.A, the Unit SP shall get the FIR registered and issue orders under Sec. 17 PC Act 1988 assigning the Investigation Officer (10). The 1.0 shall not be the same as SIR generating officer. KI.A, the Unit SP shall get the FIR registered and issue orders under Sec. 17 PC Act 1988 assigning the Investigation Officer (10). The 1.0 shall not be the same as SIR generating officer. iv. The FIR shall be submitted to the concerned court in scaled cover, with request to be opened on completion of the search proceedings. concerned court in scaled cover, with request to be opened on completion of the search proceedings. v. Wherever required, searches shall be planned without any delay after thorough verification of addresses to be searched. planned without any delay after thorough verification of addresses to be searched. vi. In all Class-1* cases, the detailed proposal for searches shall be submitted to the Headquarters through the Unit Sal' (confidentially through K-mail, fax or any other means) and searches conducted after approval from DGP/ADGIP,KLA. In all other cases the Unit SP shall be competent to approve the search proposal. for searches shall be submitted to the Headquarters through the Unit Sal' (confidentially through K-mail, fax or any other means) and searches conducted after approval from DGP/ADGIP,KLA. In all other cases the Unit SP shall be competent to approve the search proposal. vii. All searches shall be conducted only under warrants issued by the Court under sec 93 (1) (c) of Cr.P.C. Only in exceptional circumstances, scarches may be conducted under sec 165 Cr.P.C. at new locations discovered during the course of searches. warrants issued by the Court under sec 93 (1) (c) of Cr.P.C. Only in exceptional circumstances, scarches may be conducted under sec 165 Cr.P.C. at new locations discovered during the course of searches. vii. All searches shall be conducted only under warrants issued by the Court under sec 93 (1) (c) of Cr.P.C. Only in exceptional circumstances, scarches may be conducted under sec 165 Cr.P.C. at new locations discovered during the course of searches. warrants issued by the Court under sec 93 (1) (c) of Cr.P.C. Only in exceptional circumstances, scarches may be conducted under sec 165 Cr.P.C. at new locations discovered during the course of searches. viii. Extreme confidentiality shall be maintained during briefing and conduct of the search operations. The Unit officer shall make all logistic arrangements such as travel, halt, meals, equipment and stationery etc., seeking assistance of witnesses, well in advance. Search parties should compulsorily comprise of at least some woman staff. The Unit Officer shall ensure searches are conducted as per law following the Standard Operating Procedure. Provisions of Sections 96, 165, 166. 101, 102 and 103 of Cr.P.C. must be fully complied with. during briefing and conduct of the search operations. The Unit officer shall make all logistic arrangements such as travel, halt, meals, equipment and stationery etc., seeking assistance of witnesses, well in advance. Search parties should compulsorily comprise of at least some woman staff. The Unit Officer shall ensure searches are conducted as per law following the Standard Operating Procedure. Provisions of Sections 96, 165, 166. 101, 102 and 103 of Cr.P.C. must be fully complied with. ix. On completion of searches, the 10 shall consider freezing of accounts and assets that are suspect in nature, without affecting day to day livelihood of the accused and connected individuals. consider freezing of accounts and assets that are suspect in nature, without affecting day to day livelihood of the accused and connected individuals. x. In appropriate cases, 1.0 may initiate process for attachment of properties under the Criminal Law Amendment Ordinance, 1944 after getting authorization from the State Government. process for attachment of properties under the Criminal Law Amendment Ordinance, 1944 after getting authorization from the State Government. xi. The I.O shall prepare a detailed Plan of Action and get approved by the unit SP. I.O shall take up investigation on a day to day basis without any delay and ensure completion within the time frame set in the plan. Action and get approved by the unit SP. I.O shall take up investigation on a day to day basis without any delay and ensure completion within the time frame set in the plan. xii. The process of obtaining Schedule 1-23 statements from the accused is discontinued and henceforth, 1.Os to collect Statements I-VI as in Annexure -2. statements from the accused is discontinued and henceforth, 1.Os to collect Statements I-VI as in Annexure -2. The request shall be made through the controlling officer of the AGO, fixing a time frame of two months for its submission, extendable up to three months with justifiable reasons failing which the investigation shall be concluded recording the fact that the accused failed to submit the statements. xiii. With respect to day-to-day living expenditure of the AGO, the I.O to consider 33% of the Net Salary Income as per Hon'ble Supreme Court guidelines in State of Punjab Vs. Sajjan Singh - AIR 1964, SC 465 expenditure of the AGO, the I.O to consider 33% of the Net Salary Income as per Hon'ble Supreme Court guidelines in State of Punjab Vs. Sajjan Singh - AIR 1964, SC 465 xiv. On completion of investigation, the I.O shall issue notice to the AGO to finally explain the DA made out in the investigation and record defence of the accused. shall issue notice to the AGO to finally explain the DA made out in the investigation and record defence of the accused. xv. The IO shall conduct investigation into the defence of the accused and record his/her reasoned rebuttal if any. defence of the accused and record his/her reasoned rebuttal if any. xiv. On completion of investigation, the I.O shall issue notice to the AGO to finally explain the DA made out in the investigation and record defence of the accused. shall issue notice to the AGO to finally explain the DA made out in the investigation and record defence of the accused. xv. The IO shall conduct investigation into the defence of the accused and record his/her reasoned rebuttal if any. defence of the accused and record his/her reasoned rebuttal if any. xvi. In appropriate cases the 1.0 to consider invoking sections of The Prohibition of Benami Property Transactions Act, 1988 invoking sections of The Prohibition of Benami Property Transactions Act, 1988 xvii. The final calculation of DA shall be made as per Annexure-3 per Annexure-3 xviii. During the course of Investigation, the 10 shall submit detailed Progress reports to the Unit SP and DGP/ADGP as per SoP shall submit detailed Progress reports to the Unit SP and DGP/ADGP as per SoP xix. On conclusion of Investigation, the Final Report (FR) of the 1.0 along with SP Report (FR) of the 1.0 along with SP Comments shall reach Office of DGP/ADGP without any further delay, for Final Orders. XX. It shall be the responsibility of the Unit SP to ensure strict compliance of the I.O, to this circular and ensure timely completion of investigations in D.A cases. to ensure strict compliance of the I.O, to this circular and ensure timely completion of investigations in D.A cases. *Class-I cases: a) All cases involving officers of and above the Rank of Class-1 Gazetted or Officers of equivalent Ranks Rank of Class-1 Gazetted or Officers of equivalent Ranks b) All cases involving Elected representatives of MLA/MP or above Rank of MLA/MP or above Rank c) All cases referred by the Hon'ble High Court or the Hon'ble Supreme Court of India d) Cases of Criminal Misconduct involving a wrongful loss to the Government of and above 5 Crores. Court or the Hon'ble Supreme Court of India d) Cases of Criminal Misconduct involving a wrongful loss to the Government of and above 5 Crores. Director General of Police Karnataka Lokayukta Bengaluru 18. Here in this case, the police have not followed any of the procedure or their own guidelines before passing the order under Section 17 of the P.C. Act and there is no FIR registered prior to passing the order under Section 17 of P.C. Act and directing the Officer to investigate the matter not below the rank of Dy.S.P. 19. Therefore, I am of the view, the contention taken by the learned counsel for the respondent and relying upon the judgment of the Hon'ble Supreme Court is not applicable to the case on hand, where the very registering the FIR and permitting for investigation without proper procedure and preliminary enquiry and violation of mandatory provisions is nothing but abuse of process of law and hence, the criminal proceedings against the petitioner is liable to be quashed. The Co-ordinate Bench of this Court has also taken similar view in the case of Balakrishna H.N. vs. State of Karnataka by ACB , Mysuru dated in W.P.No.15886/2022 (GM-RES) dated 03.01.2023 and in the case of Navaneeth Mohan N. vs. SHO, ACB, Bengaluru in W.P.No.43817/2018 (GM-RES) dated 21.04.2021. 20. Accordingly, the petition is allowed. The FIR against the petitioner in Crime No.11/2023 registered by Lokayukta Police, Mysuru pending on the file of III Additional Civil and Sessions Judge and Special Judge, Mysuru hereby quashed. Sd/-JUDGE GBB CT:SK