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PETITIONER: M.KRISHNA

       Vs.

RESPONDENT: STATE OF KARNATAKA

DATE OF JUDGMENT:       19/02/1999

BENCH: G.B.Pattanaik, M.B.Shah

JUDGMENT:

PATTANAIK. J.

       Leave granted.

       The  appellant  is  a  Class-I  officer of Karnataka Administrative Service.  On 24.8.1989 a report was drawn  up against  him  under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act alleging therein that he has assets disproportionate to his known source  of  income. After  investigation the Inspector General of Police, Bureau of  Investigation,  Karnataka   Lokayukta   authorised   the Investigating  Officer  to  submit  a  ’B’report  before the Special Judge, Bangalore where the matter  was  pending  and after  issuance  of  a  public notice in the prescribed from inviting objections to the aforesaid  ’B’  report  from  the interested  persons  by  order  dated 11.4.1991 the said ’B’ report  was  accepted  by   the   learned   Special   Judge. Properties  of the appellant which had been earlier attached were directed to be released.  On 25.7.95  the  Supdt.    of Police Karnataka  Lokayukta authorised the Deputy Supdt.  Of Police to investigate into the assets of the  appellant  and find out whether an offence has been committed under Section 13(1)(e)  read  with  Section  13(2)  of  the  Prevention of Corruption Act, 1988.  On the same  day  an  FIR  was  filed alleging  commission  of offence against the appellant under Section 13(1)(e) read with Section 13(2) of the Act and  the gravamen  of  the allegation is that between the period from 1.8.78  to  25.7.95  the  appellant  has   acquired   assets amounting to Rs.  58,77,000/- as against his known source of income of  Rs.   9,90.000/- and thereby the disproportion is to the tune  of  Rs.52,17,000/-.    The  appellant  filed  a Criminal   Petition  before  the  High  Court  of  Karnataka invoking jurisdiction under  Section  482  of  the  Code  of Criminal  Procedure  praying  for quashing of the FIR in LAC Crime no.  21 of 95 inter alia  on  the  ground  that  Crime No.22 of 89 having been registered against the appellant for a   check   period   1.8.79   till  24.8.89  and  after  due investigation a ’B’ report having been filed  and  the  same being  accepted  it  was  not  proper  for the investigating Authority to file another FIR  which  includes  the  earlier check period  of  1.8.78 till 24.8.89.  The learned Judge of the High Court, however, was not persuaded to agree with the aforesaid submission of the learned  counsel  appearing  for the  appellant, and on examining the FIR and the allegations made therein came to the conclusion that it  was  a  set  of

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fresh  allegations in respect of fresh alleged assets during a fresh check period and as such question  of  quashing  the FIR does  not  arise.   It is against the aforesaid order of the learned Single Judge of Karnataka High Court the present appeal has been preferred.

       Mr.   Sibbal,  the  learned senior counsel appearing for the appellant contended that the assets of the appellant for the period 1.8.78 till 24.8.89 having been  the  subject matter of an investigation pursuant to Crime Case No.  22 of 89  and  a  ’B’  form having been filed by the investigating Agency which was approved by the  Magistrate,  inclusion  of the said period in the fresh FIR is itself bad and therefore the FIR  is liable to be quashed.  Mr.Sibbal, also contended that in view of Sub-Section (8) of Sec.  173 of the Code  of Criminal Procedure the Investigating Agency has the right to file  fresh  report on the basis of fresh materials but that not having been done the impugned FIR for the period  1.8.78 till 25.7.95 cannot  be sustained.  According to Mr.  Sibbal the very fact that the Investigating Agency is not aware  of the   earlier  criminal  proceeding  and  the  investigation thereupon which ultimately ended in a ’B’ from and  accepted by the Court indicates the total non-application of mind and pursuing  the appellant maliciously and therefore, the Court should interfere with the  proceeding.    According  to  Mr. Sibbal  after  the  FIR  is  given  whatever  statements are received are in course of investigation under Section 161 of the Code of Criminal Procedure and that being  the  position there  cannot be two FIR for the period 1.8.78 till 24.8.89. The  learned  counsel  also  urged  that  in  view  of   the provisions  contained  in Section 13(1)(e) of the Prevention of Corruption Act the explanation offered by the accused  in respect  of  the  prior proceedings having been accepted the said assets could not have been again taken into account for a subsequent criminal  case.    Mr.    Sibbal  also  further submitted  that  in any view of the matter the assets of the Govt.  servant are to be valued on the date  of  acquisition and  not  on  the date of verifying of the fact and the very asset which was valued in course of  earlier  proceeding  at Rs.  one  lakh  should  not  have  been valued at Rs.  three lakhs or Rs.  Four lakhs, as in the present  case  and  such valuation  itself  in  an unfair investigation causing undue harassment to the accused appellant.

       Mr Mahale, the learned  counsel  appearing  for  the respondents  on the other hand submitted that the parameters for quashing an FIR having been laid down by this  Court  in Bhajan  Lal’s  case  and certain illustrations given by this Court, the present  case  does  not  fall  within  the  said parameters and, therefore the High Court was fully justified in not  accepting  the prayer of the accused appellant.  Mr. Mahale also submitted that acceptance of a ’B’ from  by  the Court  cannot  be held to be an order of acquittal after the accused being tried as provided under  Section  300  of  the Code of Criminal Procedure, and therefore, there is no legal impediment  to have a fresh First information Report for the entire service period of a govt.   servant  and  investigate into the  assets of the employee for the entire period.  Mr. Mahale,  however  fairly  stated  that  the  assets  of  the employee  will  have to be valued on the date of acquisition and not on the date the Criminal case is  being  instituted. He  also  submitted  that  the  investigating Agency is duty bound to take into consideration the fact of ’B’ from  filed in Criminal  Case  No.    22  of  89  and  the  order of the Magistrate passed  thereon  before  ultimately  filling  the

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chargesheet  or  the  ’B’  from  as  the  case may be in the present case.  But according to him the  very  investigation cannot be quashed at this stage.

       Having  considered  the  rival  submissions  made by counsel for the parties and having examined  the  provisions of  the Criminal Procedure Code as well as the Prevention of Corruption Act we find ourselves unable to  agree  with  the submission of  Mr.    Sibbal,  the  learned  senior  counsel appearing for the appellant that the present FIR  itself  is bad in  law.  We do not find any provision in the Code which debars the filing of  an  FIR  and  investigating  into  the alleged offences merely because for an earlier period namely 1.8.78  to  24.8.89 there was First Information Report which was duly investigated into and  culminated  in  a  ’B’  form which was  accepted  by a Competent Court.  At the same time we are also of the opinion that the conclusion of  the  High Court  that  the present proceeding relates to fresh alleged assets and fresh check period is not wholly correct,  in  as much as admittedly the check period from 1.8.78 till 24.8.89 was the  subject  matter in the Crime Case No.  22 of 89 and the same ended in  submission  of  ’B’  form.    Though  the earlier   period   also   could   be  a  subject  matter  of investigation for variety of reasons like  some  assets  not being  taken  into  account or some materials brought during investigation not being taken into account yet at  the  same time  the  results  of  the  earlier investigation cannot be totally  obliterated  and  ignored  by   the   Investigating authority to  investigate into the offence alleged.  We also find sufficient force in the arguments of Mr.   Sibbal  that the  assets  which  were valued in the earlier investigation proceeding at a particular value cannot be valued higher  in the  present  proceeding unless any positive ground is there for such valuation.  For example, a car which was valued  in the earlier  proceeding at Rs.  60,000/- could not have been valued at Rs.  1,70,000/- in the present proceedings but  at this  stage  the  Court  is  not  required  to go into these matters as investigation is only  at  thershold.    For  the aforesaid  reasons,  while we are not in a position to quash the FIR but we would make it clear  that  the  Investigating Authority  will  certainly look into the earlier proceedings and  the  result  of  investigation   thereunder   and   the submission  of  ’B’  From  which  was  duly  accepted by the competent  Court  while  investigating  into   the   present proceedings  as  well as the observations made by us in this Judgement.   Subject  to  the  aforesaid  observations  this appeal is disposed of.