Mahesh P S vs State of Karnataka
Criminal Petition 4909 of 2022. Daily Order dated 11 July 2022
Justice H P Sandesh
The Special Counsel appearing for ACB placed the investigation materials collected till date as directed by this Court in a sealed cover and the same is taken on record.
2. The Registrar (Judicial) also placed on record the details of B-reports, which have been received from 18 districts of the State and the same are placed on record. The Registrar (Judicial) submits that report from the remaining districts is yet to be received.
3. Sri Prasanna Kumar, the learned Standing Counsel appearing for Central Bureau of Investigation (CBI) placed the report on record in compliance with the order dated 07.07.2022 and the same is taken on record. The report discloses that the raid conducted on the residential house of ADGP.
4. This Court would like to make it clear that the learned counsel Sri Ashok Haranahalli appears and submits that SLP is filed before the Apex Court by ACB and he is not the counsel for ACB before this Court and he also states that there cannot be any attack on the judiciary while dispensing the justice and it amounts to attack on the independence of judiciary and insist for revealing the threat. When this matter was heard on 29.06.2022, this Court found inaction on the part of the ACB in arraigning the real accused inspite of the material against the Deputy Commissioner and not shown enthusiastic investigation and hence observed the same during the proceedings and the matter was adjourned to 04.07.2022. In the meanwhile, on account of superannuation of the Hon’ble Chief Justice, a dinner was arranged by this Court to bid farewell on 01.07.2022. “A Hon’ble sitting Judge came and sat by the side of me and stated that he received a call from Delhi (not disclosed the name) and said that the person who called from Delhi, enquired about me and immediately I replied that I am not affiliated to any political party and the Hon’ble Judge did not stop the same there itself and further said that ADGP is from North India and he is powerful and also gave an instance of transfer of Senior Judge of this Court to some other State and told that for no mistake on his part, he was transferred and chances of one side feeding to them” and the same is nothing but an attack on the independence of judiciary and interference in dispensation of justice. Thus, this Court when found inaction on the part of ACB in not properly investigating the matter and a threat was made to summon the Service Record (SR) of the ADGP. On perusal of the SR, for the period of assessment 2009-2010, the Reviewing Authority, a remark was made that the Officer has to give adequate attention to police image while performing his duties or supervising the duties of subordinate officers/ranks. It is further observed in column No.9 that lesser strength are loose supervision, soft going on subordinates, inability to say ‘No’. For the year 2008-2009 i.e., from 01.04.2008 to 31.03.2009, the remark is that his ability to take tough stand shall improve. It is emerged in the service record that he was working as S.P. in Bellary and he was transferred and within six days again got it transferred to Bellary and the counsel for CBI submits that the Hon’ble Supreme Court is monitoring the mining case and CBI raid was conducted on the residence of the ADGP.
5. Apart from that, the Deputy Director of DPAR submits the records regarding the CBI raid in respect of residence of ADGP, wherein found material, requires an enquiry and requested the State Government to enquire into the matter and now the CBI report is also placed on record and the learned Standing Counsel for CBI submits that not received any enquiry report from the State Government. On perusal of material it is clear that CBI conducted the raid on the residential house of ADGP on 05.04.2013 and found material to enquire the matter and the same is not reached to the logical end. When all these materials are found and also the B-reports which have been submitted by ACB, in respect of 5 matters only ACB has given the details and other 99 B-reports are dumped to the Court without giving any details like crime, offences, status of B-report. Hence, this Court summoned the details from the respective Courts through the Registrar (Judicial). Having taken note of no details are given and the way in which the officer who is in helm of affairs not assisted the Court, found that the same is not done in the interest of public as observed by this Court in the order dated 07.07.2022 wherein this Court cited the judgment of the Apex Court wherein it is held that if the investigation is not proceeding legally, Court can take note of the public interest as the sole consideration and a Constitutional Court monitors an investigation only when circumstances compel it to do so, such (illustratively) a lack of enthusiasm by the Investigating Officer or agency (due to ‘pressures’ on it) in conducting a proper investigation, or a lack of enthusiasm by the concerned Government in assisting the investigating authority to arrive at the truth, or a lack of interest by the investigating authority or the concerned Government to take the investigation to its logical conclusion for whatever reason, or in extreme cases, to hinder the investigation.
6. In the case on hand also lack of enthusiasm and the investigation not taken place legally and not assisted the Court by ACB properly and the said circumstances forced to call all the details including SR as well as B-reports which have been submitted before the Trial Courts that is only in the interest of public and the Constitutional Court monitors the investigation only when the circumstances compel it to do so. The ACB, only after this Court found the material and on observation of the Court, arraigned the Deputy Commissioner as accused and arrested him and also conducted the raid on the house of Deputy Commissioner. The B-report also discloses that the accused are let-off by making the accused to refund the bribe money and not considered the digital material regarding demand and acceptance.
7. Having discussed above, it is appropriate to direct the Chief Secretary and DPAR that while posting the officers that too in a institution which is established for prevention of corruption to take note of the public interest and should not be posted any tainted officer to the helm of affairs of the institution which is established to prevent the corruption.
8. The Chief Secretary before posting an officer for the office which is established for prevention of corruption, shall consider the officer is having credibility/integrity and also take note of antecedents while posting to take the institution to the great height.
9. The Secretary to the DPAR also shall bring it to the notice of the Chief Secretary while posting an officer in helm of affairs of prevention of corruption in ACB, to furnish all the details regarding the service records as well as the integrity of the officer. The other day, a mention was made before the Court by the Deputy Secretary of DPAR that due to the pressure, the same cannot be done and should not yield to such pressure in the interest of the public.
10. The posting should not be considered either by external influence or internal influence and the same cannot be a criteria while posting the officers to the institution.
11. The officers who have to be posted to prevent the corruption, their family members or any other persons should not be facing any investigation either by ACB or Lokayukta or otherwise, the family members or relatives who are facing the investigation by ACB or Lokayukata, may take advantage of the same.
12. While posting the officers, not to post the officers who have faced the traps or enquiry conducted by the ACB or Lokayukta.
13. The Special Counsel appearing for ACB has filed a memo stating that Special Leave Petition (SLP (Crl.) Provisional Application No.13963-2022) is filed before the Apex Court challenging the order dated 07.07.2022 and the said petition is listed on 12.07.2022 and prays this Court to adjourn the matter and the said memo is taken on record and the Special Counsel appearing for ACB is directed to furnish a copy of the said memo along with its enclosures to the learned counsel appearing for the petitioner since copy is not served.
14. The learned counsel appearing for the petitioner opposes for the adjournment sought by the Special Counsel appearing for ACB on the ground that the matter has been moved before the Apex Court against the order dated 07.07.2022 and the same is not bearing on the bail petition. The matter is listed tomorrow before the Apex Court and hence it is appropriate to grant two days time keeping in view of the contention of the learned counsel for the petitioner that the personal liberty of a person who is in custody is also involved.
15. The registry is directed to communicate this order to the Chief Secretary as well as to the Secretary to the DPAR forthwith.
16. The Registrar (Judicial) is directed to keep the further investigation materials furnished before the Court by ACB in safe custody.
17. List the matter on 13.07.2022 at 2.30 p.m., to hear the bail petition.
Daksha Legal 