Karnataka High Court
Shri Gangadhara Y vs State Of Karnataka on 3 December, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.15946 OF 2023 (GM-RES)
BETWEEN:
SHRI GANGADHARA Y.,
S/O LATE SRI YALLAPPA R.,
AGED ABOUT 51 YEARS
RESIDING AT 'TANMAYA NILAYA'
OPPOSITE VRL GO-DOWN, JAYANAGARA
CHIKKAMAGALURU - 577 101
SHOWN IN THE FIR AS:
GANGADHARA Y.,
PROJECT MANAGER
NIRMITHI KENDRA
CHIKKAMAGALURU
CHIKKAMAGALURU TALUK.
... PETITIONER
(BY SRI P.PRASANNA KUMAR, ADVOCATE)
AND:
STATE OF KARNATAKA
BY LOKAYUKTHA P.S.,
CHIKKAMAGALURU
REPRESENTED BY ITS
SPECIAL PUBLIC PROSECUTOR
OFFICE OF KARNATAKA LOKAYUKTHA
2
M.S.BUILDING, DR. AMBEDKAR VEEDHI
BENGALURU - 560 001.
... RESPONDENT
(BY SRI B.B.PATIL, SPL. PP)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C.,
PRAYING TO QUASH THE FIR IN CRIME NO. 08/2023 DTD.
27.06.2023 REGISTERED BY THE RESPONDENT/LOKAYUKTA
POLICE, CHIKKAMAGALURU AS AGAINST THE
PETITIONER/ACCUSED ALLEGING OFFENCE PUNISHABLE U/S 13(2)
R/W 13(1)(b) OF THE PREVENTION OF CORRUPTION ACT, 1988
(AMENDMENT ACT, 2018) PENDING ON THE FILE OF LEARNED
PRINCIPAL DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE,
CHIKKAMAGALURU (PRODUCED VIDE ANNX-A).
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before this Court calling in question a FIR in
Crime No.8 of 2023 registered for offences punishable under
Sections 13(1)(b) and 13(2) of the Prevention of Corruption Act,
1988 ('the Act' for short).
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2. Heard Sri P.Prasanna Kumar, learned counsel appearing for
the petitioner and Sri B.B.Patil, learned Special Public Prosecutor
appearing for the respondent.
3. Facts, in brief, germane are as follows:-
The petitioner is initially appointed as Junior Engineer on
14-02-1997 at the Chikkamagalur Nirmithi Kendra, Chikkamagalur.
Nirmithi Kendra is said to be a society under the Karnataka
Societies Registration Act, 1960. On 27-11-2019 the petitioner is
said to have been promoted to the cadre of Project Manager in the
Society. When things stood thus, a source report is drawn alleging
that the petitioner has amassed wealth disproportionate to the
known source of income on 03-06-2023. On the basis of the source
report so drawn, a crime comes to be registered in Crime No.8 of
2023 alleging the aforesaid offences. Registration of crime is what
has driven the petitioner to this Court in the subject petition.
4. The learned counsel appearing for the petitioner would
contend that the Act is not applicable to the employees of Nirmithi
Kendra as it is a Society under the Societies Registration Act and
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the petitioner does not come within the definition of public servant
for initiation of proceedings under the Act. Without prejudice to this
submission, even on merits of the matter, the learned counsel
would project the following lacunae to buttress his submission:
(1) "Statement-A: No value whatsoever has been assigned to
the properties that were acquired by the petitioner prior
to the check period
(2) No check period has been mentioned in the impugned
FIR.
(3) The petitioner is not a public servant as defined under
Section 2(c) of the PC Act as the petitioner is an
employee of a Society i.e., Nirmithi Kendra which does
not receive any funds from the Government.
(4) The order under Section 17 of the PC Act does not reflect
application of mind and the same is in a standardize and
cyclostyled manner.
(5) No preliminary enquiry has been conducted by the
respondents before drawing the source report or
registration of the impugned FIR. Further no verification
has been made by the Superintendent of Police on the
source report filed by the 2nd respondent.
(6) APRs and IT returns are not verified.
(7) Violation of the mandate under Section 17(c) of the PC
Act.
(8) Non-calling for explanation from the petitioner.
(9) Section 17 of PC Act order has been passed prior to
registration of the FIR."
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He would seek to place reliance on two judgments of the coordinate
Benches of this Court in the cases of CHANNAKESHAVA H.D. v.
STATE OF KARNATAKA AND ANOTHER1 and S. SATHISH AND
OTHERS v. THE KARNATAKA LOKAYUKTA POLICE INSPECTOR
AND OTHERS2 in advancing his contention that conduct of
preliminary enquiry prior to drawing up of the source report is
mandatory and the source report is left blank with regard to the
check period. This according to the learned counsel becomes
arbitrary and contrary to the law as laid down in the aforesaid
judgments.
5. Per contra, the learned Special Public Prosecutor
representing the Lokyukta would contend that the petitioner has
admittedly amassed wealth disproportionate to the known source of
income. All the defence that the petitioner is now projecting can be
projected before the concerned Court at the time of trial. The
matter is still at the stage of investigation. This Court should not
interfere at the stage of investigation, based upon the source report
1
W.P.No.28052 of 2023 decided on 25th April 2024
2
W.P.No.22483 of 2023 and connected cases decided on 2nd July 2024.
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and consequent filing of FIR. He would submit that judgments
rendered by the coordinate benches, relied on by the learned
counsel for the petitioner, are all distinguishable, as preliminary
inquiry can be two types - one open inquiry and the other discreet
inquiry. Discreet inquiry is conducted in the case at hand and
therefore, there is no warrant of interfere. He would seek dismissal
of the petition.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The afore-narrated facts are not in dispute. Since the
petitioner has projected jurisdictional issue as to whether the
employees/officers of Nirmithi Kendra would come within the ambit
of the Act or otherwise, the same need not detain this Court for
long or delve deep into the matter. A coordinate Bench of this Court
in the case of G.KRISHNEGOWDA v. STATE OF KARNATAKA3
answering the very contention raised by a Project Manager of a
particular Nirmithi Kendra holds that the Project Manager of
3
Criminal Petition No.2801 of 2021 decided on 15th July, 2021
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Nirmithi Kendra is a public servant and would come within the
definition of public servant. The coordinate Bench has held as
follows:
".... .... ....
10. The undisputed facts of this case are, petitioner is an
employee of Nirmithi Kendra, Chikkaballapura, which is a
society registered under the Karnataka Societies Registration
Act, 1960. The said Kendra has been undertaking civil
construction works of the State Government assigned to it.
Petitioner who is working as Project Manager of the Kendra has
been looking after the said construction works in various sites.
11. The material on record would go to show that the
Deputy Commissioner of the District is the Chairman of the
Governing Body of the Kendra, while the Chief Executive Officer
and the Deputy Secretary of the Zilla Panchayat are the
Executive Chairman and the Member Secretary, respectively.
There are many other senior Government officials who are the
members of the Governing Body. The audit report of the Kendra
which is available on record would go to show that the Kendra
has been receiving funds from the State as well as from the
Central Government. The word 'public servant' as defined under
Section 2(12) of the Karnataka Lokayukta Act, reads as under:
"(12) "public servant" means a person who is or
was at any time, -
(a) the Chief Minister;
(b) a Minister;
(c) a member of the State Legislature;
(d) a Government Servant;
(e) the Chairman and the Vice-Chairman (by
whatever name called) or a member of a local authority in
the State of Karnataka or a statutory body or corporation
established by or under any law of the State Legislature,
including a co-operative society, or a Government
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Company within the meaning of Section 617 of the
Companies Act, 1956 and such other corporations or
boards as the State Government may, having regard to
its financial interest in such corporations or boards, by
notification, from time to time, specify;
(f) member of a Committee or Board, statutory
or non-statutory, constituted by the Government; and
(g) a person in the service or pay of,-
(i) a local authority in the State of Karnataka;
(ii) a statutory body or a corporation (not being
a local authority) established by or under a
State or Central Act, owned or controlled by
the State Government and any other board
or corporation as the State Government
may, having regard to its financial interest
therein, by notification, from time to time,
specify;
(iii) a company registered under the Companies
Act, 1956, in which not less than fifty one
per cent of the paid up share capital is held
by the State Government, or any company
which is a subsidiary of such company;
(iv) a society registered or deemed to have been
registered under the Karnataka Societies
Registration Act, 1960, which is subject to
the control of the State Government and
which is notified in this behalf in the official
Gazette;
(v) a co-operative society;
(vi) a university;
Explanation:- In this clause, "Co-operative Society"
means a Co-operative society registered or deemed to
have been registered under the Karnataka Co-operative
Societies Act, 1959, and "university" means a university
established or deemed to be established by or under any
law of the State Legislature."
12. In the P.C.Act, the words 'public duty' and 'public
servant' are defined in Sections 2(b) & 2(c), respectively as
under:
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(b) "public duty" means a duty in the discharge
of which the State, the public or the community at large
has an interest.
Explanation: In this clause "State" includes a
corporation established by or under a Central,
Provincial or State Act, or an authority or a
body owned or controlled or aided by the
government or a government company as
defined in section 617 of the Companies Act,
1956 (1 of 1956);
(c) "public servant" means,-
(i) any person in the service or pay of the
government or remunerated by the government
by fees or commission for the performance of
any public duty;
(ii) any person in the service or pay of a local
authority;
(iii) any person in the service or pay of a Corporation
established by or under a Central, Provincial or
State Act, or an authority or a body owned or
controlled or aided by the Government or a
Government company as defined in section
617 of the Companies Act, 1956 (1 of 1956);
(iv) any Judge, including any person empowered by
law to discharge, whether by himself or as a
member of any body of persons, any
adjudicatory functions;
(v) any person authorised by a court of justice
to perform any duty, in connection with the
administration of justice, including a
liquidator, receiver or commissioner appointed
by such court;
(vi) any arbitrator or other person to whom any
cause or matter has been referred for decision or
report by court of justice or by a competent
public authority;
(vii) any person who holds an office by virtue of
which he is empowered to prepare, publish,
maintain or revise an electoral roll or to conduct
an election or part of an election;
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(viii) any person who holds an office by virtue of
which he is authorised or required to perform
any public duty;
(ix) any person who is the president, secretary
or other office-bearer of a registered co-
operative society engaged in agriculture,
industry, trade or banking, receiving or
having received any financial aid from the
Central Government or a State Government
or from any corporation established by or
under a Central, Provincial or State Act, or any
authority or body owned or controlled or
aided by the Government or a Government
company as defined in section 617 of the
Companies Act, 1956 (1 of 1956);
(x) any person who is a chairman, member or
employee of any Service Commission or Board,
by whatever name called, or a member
of any selection committee appointed by
such Commission or Board for the conduct of
any examination or making any selection on
behalf of such Commission or Board;
(xi) any person who is a Vice-Chancellor or
member of any governing body, professor,
reader, lecturer or any other teacher or
employee, by whatever designation called, of
any University and any person whose
services have been availed of by a
University or any other public authority in
connection with holding or conducting
examinations;
(xii) any person who is an office-bearer or an
employee of an educational, scientific, social,
cultural or other institution, in whatever
manner established, receiving or having
received any financial assistance from the
Central Government or any State
Government, or local or other public
authority.
Explanation 1: Persons falling under any of the above
sub-clauses are public servants, whether appointed by
the Government or not.
Explanation 2: Wherever the words "public servant" occur,
they shall be understood of every person who is in actual
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possession of the situation of a public servant, whatever
legal defect there may be in his right to hold that situation."
13. From the reading of the definition of the word 'public
servant' as found in the P.C.Act, it is very clear that a person
who holds an office by virtue of which he is authorized or
required to perform any public duty, and any person or
employee of any institution if it has been receiving or if it has
received any financial assistance from the State or Central
Government, shall be considered as a public servant. The
explanation to Section 2(c) of the P.C.Act would further go to
show that such a person may be appointed by the Government
or not. Therefore, a public servant need not be a
Government/civil servant, but a Government/civil servant is
always a public servant.
14. The Hon'ble Supreme Court in Manusukhbhai
Kanjibhai Shah's case (supra) has held that an employee of a
co-operative society which is controlled or aided by the
Government is covered within the comprehensive definition of
the word 'public servant' as defined under the P.C.Act.
15. The judgment of this Court in Gopinath's case was
rendered having regard to the fact that the Nirmithi Kendra of
which the petitioner therein was employed had not received any
funds from the State or the Central Government or any other
public authority. There is a specific finding to the said effect in
the said judgment. However, in the case on hand, the records
would reveal that the Nirmithi Kendra in which the petitioner is
employed has been receiving funds from the Central as well as
the State Government. Therefore, the judgment of this Court in
Gopinath's case will not be applicable to the facts of this case.
16. The Hon'ble Supreme Court in the case of THE
STATE FINANCIAL CORPORATION & ANOTHER VS M/S.
JAGDAMBA OIL MILLS & ANOTHER - AIR 2002 SC 834, has
observed that judgments can be relied upon as precedents, if
only the same is applicable to the fact situation of the case. In
paragraph 19 of the said judgment, the Hon'ble Supreme Court
has observed as under:
"19. Courts should not place reliance on decisions
without discussing as to how the factual situation fits in
12
with the fact situation of the decision on which reliance is
placed. Observations of Courts are not to be read as
Euclid's theorems nor as provisions of the statute. These
observations must be read in the context in which they
appear. Judgments of Courts are not to be construed as
statutes. To interpret words, phrases and provisions of a
statute, it may become necessary for judges to embark
into lengthy discussions but the discussion is meant to
explain and not to define. Judges interpret statutes, they
do not interpret judgments. They interpret words of
statutes, their words are not to be interpreted as
statues. ......."
17. The Hon'ble Supreme Court in Indian Oil
Corporation Limited case (supra), has held that:
"The dismissal of a special leave petition in limine
by a non-speaking order does not justify any inference
that by necessary implication the contentions raised in the
special leave petition on the merits of the case have been
rejected by Supreme Court. The effect of a non-speaking
order of dismissal of a special leave petition without
anything more indicating the grounds or reasons of its
dismissal must, by necessary implication, be taken to be
that Supreme Court had decided only that it was not a fit
case where special leave should be granted. It cannot be
assumed that it had necessarily decided by implication all
the questions in relation to the merits of the award, which
was under challenge before Supreme Court in the special
leave petition."
18. The Hon'ble Supreme Court in M.V.Mohanan Nair's
case (supra), has held that dismissal of the special leave
petition in limine does not constitute a law declared by the
Supreme Court within the meaning of Article 141 of the
Constitution of India and the impugned judgment/order against
which special leave petition is dismissed in limine does not stand
affirmed by the Supreme Court nor does it merge with the order
of the special leave petition. Such a judgment/order would stand
on its own and cannot be cited as a precedent of the Supreme
Court.
19. Having regard to the aforesaid pronouncements of
the Hon'ble Supreme Court in Indian Oil Corporation Limited
case and in M.V.Mohanan Nair's case (supra), it cannot be said
13
that the judgment of this Court in Gopinath's case (supra) has
been affirmed by the Supreme Court.
20. Be that as it may, having regard to the fact that the
Nirmithi Kendra in which the petitioner is employed has been
receiving funds from the State and the Central Government and
taking into consideration the definition of the word 'public
servant' as found in the P.C.Act, it cannot be but said that the
petitioner is a public servant. Even if a person is not a public
servant, but by virtue of his office if he is discharging public
duty, then he is covered under the ambit of the P.C.Act.
21. Corruption in our country is a growing menace and
P.C.Act being a welfare legislation is required to be interpreted
keeping in mind the object and spirit of the statute. In
furtherance of the fight against corruption a broad interpretation
to the provisions of this statute is required to be given and the
arms of this Act is required to be extended to the maximum.
The offences under the P.C.Act can be invoked not only against
a public servant but also against a person, who by virtue of his
office has been discharging 'public duty'. In Manusukhbhai
Kanjibhai Shah's case (supra), the Hon'ble Supreme Court has
observed at paragraphs 26, 27, 44 to 46, 49 & 50 as under:
"26. In Subramanian Swamy v. Manmohan Singh,
(2012) 3 SCC 64, this Court observed:
"68. Today, corruption in our country not only poses a
grave danger to the concept of constitutional
governance, it also threatens the very foundation of
Indian democracy and the Rule of Law. The magnitude
of corruption in our public life is incompatible with the
concept of a socialist, secular democratic republic. It
cannot be disputed that where corruption begins all
rights end. Corruption devalues human rights, chokes
development and undermines justice, liberty, equality,
fraternity which are the core values in our preambular
vision. Therefore, the duty of the Court is that any
anti-corruption law has to be interpreted and
worked out in such a fashion as to strengthen the
fight against corruption. That is to say in a
situation where two constructions are eminently
reasonable, the Court has to accept the one that
seeks to eradicate corruption to the one which
seeks to perpetuate it."
(emphasis supplied)
14
27. We shall accordingly have due regard to the
aforesaid principles while interpreting the provisions
herein. The point of contention relates to whether a
deemed University would be included within the ambit of
the PC Act, particularly under Section 2(c)(xi) of the
same, where the word used is "University". The learned
senior counsel for the appellant-State submits that the
word "University" as used in Section 2(c)(xi) of the Act,
must be purposively interpreted. An institution which is
"deemed to be a University" under the University Grants
Commission Act, 1956 [UGC Act] plays the same role in
society as a "University". These institutions have the
common public duty of granting degrees, which are
ultimately qualifications recognized in society. As such, an
institution which is "deemed to be University", such as the
institution in the present case, is included within the
ambit of the term "University" used under the Act.
44. As discussed earlier, the object of the PC Act
was not only to prevent the social evil of bribery and
corruption, but also to make the same applicable to
individuals who might conventionally not be considered
public servants. The purpose under the PC Act was to shift
focus from those who are traditionally called public
officials, to those individuals who perform public duties.
Keeping the same in mind, as rightly submitted by the
learned senior counsel for the appellant-State, it cannot
be stated that a "Deemed University" and the officials
therein, perform any less or any different a public duty,
than those performed by a University simpliciter, and the
officials therein.
45. Therefore, for all the above reasons, we are of
the opinion that the High Court was incorrect in holding
that a "Deemed University" is excluded from the ambit of
the term "University" under Section 2(c)(xi) of the PC Act.
46. Having come to the above conclusion, in the
present case, the pivotal question is whether the
appellant-trustee in the Board of 'Deemed to be
University' is a 'public servant' covered under Section
2(c) of the PC Act. Recently, this Court in the case of CBI
v. Ramesh Gelli, (2016) 3 SCC 788, dealt with the
question as to whether Chairman, Directors and officers of
a private bank before its amalgamation with a public
sector bank, can be classified as public servants for
prosecution under the PC Act. While dealing with the
15
aforesaid proposition of law, the Court analysed the
purpose and scope of the PC Act and made the following
observations:
"15. From the Statement of Objects and Reasons of
the PC Bill it is clear that the Act was intended to make the
anti-corruption law more effective by widening its
coverage. It is also clear that the Bill was introduced
to widen the scope of the definition of "public
servant". Before the PC Act, 1988, it was the Prevention
of Corruption Act, 1947 and Sections 161 to 165-A in
Chapter IX IPC which were governing the field of law
relating to prevention of corruption. Parliament repealed
the Prevention of Corruption Act, 1947 and also omitted
Sections 161 to 165-A IPC as provided under Sections 30
and 31 of the PC Act, 1988. Since a new definition of
"public servant" is given under the PC Act, 1988, it is not
necessary here to reproduce the definition of "public
servant" given in Section 21 IPC.
...
17. The above definition shows that under sub-
clause (viii) contained in Section 2(c) of the PC Act,
1988, a person who holds an office by virtue of
which he is authorised or required to perform any
public duty, is a public servant. Now, for the purposes
of the present case this Court is required to examine as to
whether the Chairman/Managing Director or Executive
Director of a private bank operating under licence issued
by RBI under the Banking Regulation Act, 1949, held/holds
an office and performed/performs public duty so as to
attract the definition of "public servant" quoted above."
(emphasis supplied)
49. In order to appreciate the amplitude of the
word "public servant", the relevance of the term "public
duty" cannot be disregarded. "Public duty" is defined
under Section 2(b) of the PC Act, which is reproduced
below:
2(b) 'public duty' means a duty in the discharge
of which the State, the public or the community at large
has an interest.
50. Evidently, the language of Section 2(b) of the
PC Act indicates that any duty discharged wherein State,
the public or community at large has any interest is called
a public duty. The first explanation to Section 2 further
16
clarifies that any person who falls in any of the categories
stated under Section 2 is a public servant whether or not
appointed by the government. The second explanation
further expands the ambit to include every person who de
facto discharges the functions of a public servant, and
that he should not be prevented from being brought
under the ambit of public servant due to any legal
infirmities or technicalities."
22. In the supplemental reasons assigned by one of the
Hon'ble Judges who was party to the aforesaid judgment at
paragraphs-10 & 12, it is observed as follows:
"10. It cannot be lost sight of that the Act, 1988,
as its predecessor that is the repealed Ac of 1947 on the
same subject, was brought into force with avowed
purpose of effective prevention of bribery and corruption.
The Act of 1988 which repeals and replaces the Act of
1947 contains a definition of 'public servant' with vide
pectrum in clause (c) of Section 2 of the Act,1988, so as
to purify public administration. The objects and reasons
contained in the Bill leading to passing of the Act can be
taken assistance of, which gives the background in which
the legislation was enacted. When the legislature has
introduced such a comprehensive definition of "public
servant" to achieve the purpose of punishing and curbing
the growing menace of corruption in the society imparting
public duty, it would be apposite not to limit the contents
of the definition clause by construction which would be
against the spirit of the statute.
11. xxx xxx
12. In construing the definition of 'public servant'
in clause (c) of Section 2 of the Act 1988, the court is
required to adopt an approach as would give effect to the
intention of the legislature. The legislature has,
intentionally, while extensively defining the term 'public
servant' in clause (c) of Section 2 of the Act and clause
(xi) in particular has specifically intended to explore the
word 'any' which includes all persons who are directly or
indirectly actively participating in managing the affairs of
any university in any manner or the form. In this context,
the legislature has taken not of 'any' person or member of
"any" governing body by whatever designation called of
17
"any" university to be termed as 'public servant' for the
purposes of invoking the provisions of Act 1988."
23. The Hon'ble Supreme Court in Manusukhbhai
Kanjibhai Shah's case (supra), taking into consideration the
rampant corruption that has been affecting the public life, with
an object of making India corruption free, has observed that to
achieve the purpose of punishing and curbing the corruption in
society, the definition clause of the words 'public servant' and
'public duty' should not be limited affecting the very spirit of the
statute.
24. Petitioner is an employee of the Nirmithi Kendra
which is undertaking civil construction work for the Government
and has been receiving funds from the State and Central
Government. Since the Kendra has been receiving funds from
the Government, it can be termed that the said Kendra is under
the control of the State Government and having regard to the
nature of work discharged by the petitioner in a society which is
under the control of the Government, it can be clearly said that
the petitioner has been discharging public duty. The Kendra has
been receiving funds from the Government and the works
entrusted by the Government is performed by the Kendra, and
therefore, the Kendra as well as its employees are answerable
to the State as well as to the public. Petitioner is working as a
Project Manager of Nirmithi Kendra and the nature of work
carried on by him will fall within the definition of the word
'public duty' as defined under the P.C.Act. It is now well settled
that even if a individual is not a public servant, but if he is
discharging "public duty" by virtue of his office, he is answerable
to the State and public and he comes within the ambit of the
Prevention of Corruption Act. Therefore, even if the Nirmithi
Kendra is not receiving or has not recovered any fund from the
Central or State Government, but if the employees of the
Kendra by virtue of his office is discharging public duty, then he
is answerable to the State, Community and the public, and can
be prosecuted for the offences under the P.C.Act. Accordingly, I
answer the question framed for consideration in the
affirmative."
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In the light of the judgment rendered by the Coordinate Bench qua
the Project Manager of a particular Nirmithi Kendra, the contention
of the learned counsel for the petitioner would not hold water that
the petitioner is not a public servant. Therefore, the jurisdictional
issue is answered against the petitioner, holding that he is a public
servant and would come within the ambit of the Act.
8. Insofar as the other three grounds are concerned qua non-
conduct of preliminary enquiry; faulty source report and non-
application of mind by the Competent Authority while granting
approval to register the crime under Section 17 of the Act, the
coordinate benches in the case of CHANNAKESHAVA H.D. and
S.SATHISH (supra) have considered this very issue.
9. In the case of CHANNAKESHAVA H.D. (supra) the
coordinate Bench holds as follows:
".... .... ....
11. On perusal of the same, the Lokayuktha police
prepared a source report dated 5.10.2023 and the same was
forwarded to the Superintendent of Police, Lokayuktha
contending that the petitioner being the Executive Engineer
working in BESCOM amassed the property or assets in the
19
names of family members, his name to the tune of
Rs.12,95,91,000/- and his expenditure was Rs.86,99,000/- and
income was Rs.7,18,23,000/- and the disproportionate assets
was Rs.6,64,67,000/- to the tune of 92.54%. Therefore,
requested the Superintendent of Police to permit for registering
the FIR. Accordingly, the Superintendent of Police sent the
source report to the Dy.SP and the Dy.SP given a report on
24.11.2023, and based upon the Dy.SP report, again the
Superintendent of Police passed an order on 04.12.2023 under
Section 17 of the Prevention of Corruption Act directing the
police inspector Srikant to register the FIR. Subsequently, the
police inspector registered the FIR for the offences punishable
under Section 13(b) read with section 13(2) of P.C. Act, which is
under challenge.
12. Learned counsel for the petitioner has contended that
there is manipulation in the registration of FIR, the reference
number made in the FIR as per the order of the Superintendent
of Police is altogether different from the order passed by the
Superintendent of Police under Section 17 of the Prevention of
Corruption Act. In this regard, it is convenient to mention the
order of the Superintendent of Police as under:
KARNATAKA LOKAYUKTA
No. LOK/SP/Bengaluru City-1/Source-14/2023 M.S.Buildings,
Dr.B.R.Abmedkar Veedhi,
Bengaluru, dt:04/12/2023.
PROCEEDINGS OF THE SUPERINTENDENT OF POLICE,
KARNATAKA LOKAYUKTA, BENGALURU CITY-1
Sub:Possession of properties disproportionate to the known
sources of income by Sri Channakeshava H.D. Executive engineer,
KPTCL, present working at Bescom, Jayanagara Division Bengalore.
Ref: 1. Source report submitted by
Shri Girish.B., DySP-09, KLA,
Bengaluru City-1 on
05.10.2023
2. Verification report submitted
by Shri Basavaraj R Magadum
DySP-05, KLA, Bengaluru City-
1 on 27.11.2023
***
20
With respect to the above cited subject and reference-1 & 2, it
is ascertained that Sri Channakeshava H.D. Executive engineer,
KPTCL, present working at Bescom, Jayanagara Division Bengalore has
acquired properties disproportionate to his known sources of income to
the extent of Rs. 6,64,67,000/- i.e., 92.54% and thereby committed
an offence punishable under Sec. 13(1)(b) r/w 13(2) of the Prevention
of Corruption Act-1988.
From the material placed before me and with the application of
my mind, I am satisfied that a prima-facie case is made out against Sri
Channakeshava H.D. Executive engineer, KPTCL, present working at
Bescom, Jayanagara Division Bengalore warranting a statutory
investigation for an offence punishable under Sec. 13(1)(b) r/w 13(2)
of the Prevention of Corruption Act-1988.
Hence I pass the following Order
ORDER NO. LOK/INV(G)/CITY/54/2023,
DATED:04/12/2023
Therefore, by virtue of the powers vested in me under the
provisions of Sec. 17(c) of the Prevention of Corruption Act - 1988, I,
Joshi Shrinath Mahadev, IPS., Superintendent of Police, Karnataka
Lokayukta, Bengaluru City-1 order that Sri S.Srikanth, PI-01,
Karnataka Lokayukta, Bengaluru City-1 to register a case under Sec.
13(1)(b) r/w 13(2) of the Prevention of Corruption Act - 1988 against
Sri Channakeshava H.D. Executive engineer, KPTCL, present working
at Bescom, Jayanagara Division Bengalore and to investigate the said
case.
Further, I authorize Sri S.Srikanth, PI-01, Karnataka
Lokayukta, Bengaluru City-1 under the provisions of Section 18 of the
Prevention of Corruption Act - 1988 to inspect the Banker Books in so
far as it relates to the accounts of the persons suspected to be holding
money on behalf of the said Sri Channakeshava H.D. Executive
engineer, KPTCL, present working at Bescom, Jayanagara Division
Bengalore 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 Sri S.Srikanth, PI- 01, Karnataka Lokayukta, Bengaluru City-1
the police officer in the exercise of the powers under the said section
of law.
(Joshi Shrinath Mahadev, IPS.,)
Superintendent of Police,
Karnataka Lokayukta,
Bengaluru City -1.
21
13. On perusal of the reference number made by the
Superintendent of Police which reveals No.LOK/SP/Bengaluru
City-1/Source-14/2023, and based upon the said order, the FIR
came to be registered. The learned counsel for the petitioner
has contended that the endorsement made in the FIR regarding
the order passed by the Superintendent of Police and the
number mentioned on the bottom of the FIR is altogether
different which is referred as under:
1. Annexures (lagathugalu) 1 the source report of the
complainant.
2. The order of the S.P.
No.KLA/PCD/SP2/source/01/2023 dated 09.02.2023.
14. On perusal of the order of the Superintendent of
Police, which reveals that the source report said to be 1/2023
dated 09.02.2023 in the FIR, whereas the order of
Superintendent of Police reveals that the source report was
dated 05.10.2023 and the number was No.LOK/SP/Bengaluru
City-1/Source-14/2023. On perusal of the same, it is altogether
different source report verified by the Superintendent of Police
and passed the order, the order of Superintendent of Police is
different from the number mentioned in the FIR in respect of
registering the case.
15. Even otherwise, on perusal of the endorsement made
by the police on receipt of the source report dated 05.10.2023,
it is mentioned the order of the Superintendent of Police as
L0K/INV(G)/city/54/2024 and this number also altogether
different from the order of the Superintendent of Police, as
stated above.
16. In this regard, the learned counsel for the petitioner
has relied upon the judgment of the Co-ordinate Bench of this
Court in the case of SANATHANA KALAKSHETHRA Vs. THE
STATE OF KARNATAKA (WP No.16083/2023 (GM-RES) dated
14.12.2023). In the said case, the Superintendent of Police,
Ramanagar issued authorisation under Section 17 of P.C. Act
whereas the FIR was registered at District Mandya, and the Co-
ordinate Bench has quashed the FIR. Here, in this case, the
source report for registering the FIR is altogether different from
the authorisation issued by the Superintendent of Police and the
22
source report sent by the police inspector and the date also
differs. The complaint was registered on the source report
1/2023 dated 9.2.2023 where as the authorisation issued by the
Superintendent of Police on respect of No.14/2023 dated
5.10.2023. Therefore, it is clear that very registering FIR and
issuing authorisation is non application of mind. Therefore, both
the source reports are together different from each other.
17. As per the judgment of the Co-ordinate Bench of this
Court in the case of NAVANEETH MOHAN N Vs. THE
STATION HOUSE OFFICER, ANTI CORRUPTION BUREAU
AND ANOTHER (Writ Petition No.43817/2018 dated
21.04.2021), where the Co-ordinate Bench has quashed the FIR
for registering it without doing enquiry and non application of
mind. The another Co-ordinate Bench has also quashed the
proceedings in the case of M. PUTTASWAMY AND OTHERS
Vs. STATE OF KARNATAKA AND ANOTHER in Criminal
petition No.391/2017 clubbed with matters dated 16.03.2023
and so many FIRs were quashed by the Co-ordinate Bench of
this Court. Following the said decisions, this Court also quashed
the FIR in the case of N SATISH BABU Vs. STATE OF
KARNATAKA, LOKAYUKTA POLICE STATION AND
ANOTHER (Writ Petition No.3107/2024 dated 01.03.2024).
18. There is no preliminary enquiry conducted by the
police before registering the FIR. The source report also
insufficient since the beginning period of the property in
possession of the petitioner was shown as 'Nil' or 'Zero'.
Therefore, the source report is also insufficient and the order
passed by the Superintendent of Police is also non application of
mind. Apart from that, the FIR could have been registered and
submitted to the Superintendent of Police seeking investigation
of the matter. Hence, there is lapse on the part of the
respondent police in registering the FIR and passing the order
by the Superintendent of Police under Section 17 of P.C. Act.
19. Learned counsel for the petitioner has brought to the
notice that there is circular dated 11.05.2023 issue by DGP,
Lokayuktha for how to investigate the matter in disproportionate
assets case, wherein it is stated as under:
23
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
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.
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.
24
20. In view of the aforesaid findings and the very police
violated their circular in registering the FIR, therefore, the FIR
registered by the police is unsustainable and is liable to be
quashed
21. Accordingly, the writ petition is allowed. The FIR in
Crime No.54/2023 registered by Lokayuktha police, Bangalore,
is hereby quashed."
10. In the case of S.SATHISH (supra) another coordinate
Bench holds as follows:
".... .... ....
15. The points that arise for consideration are as
follows:
i) Whether the orders of the Superintendent
of Police passed under second proviso to Section 17
authorizing to investigate against criminal misconduct
of intentional illicit enrichment during the period of
office under Section 13(1)(b), should be elaborate
with clearly discernible reasons?
ii) Whether the conducting of preliminary
enquiry is mandatory before registering the FIRs or
the petitioners have made out any case for the
desirability to conduct preliminary enquiry?
iii) Whether the registration of the FIRs must
precede the orders authorizing to investigate?
Point No.(i):
16. Before addressing this point, it is pertinent to cite
the relevant provisions of the Prevention of Corruption Act,
1988, and the legal principles established by the Apex Court, as
well as this Court, with reference to the said provisions.
17. Section 17 is reproduced as hereunder -
25
CHAPTER IV - INVESTIGATION INTO CASES UNDER THE ACT
17. Persons authorised to investigate.-
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), no police officer below the
rank,-
(a) in the case of the Delhi Special Police
Establishment, of an Inspector of police;
(b) in the metropolitan areas of Bombay,
Calcutta, Madras and Ahmedabad and in any
other metropolitan area notified as such
under sub-section (1) of section 8 of the Code
of Criminal Procedure, 1973(2 of 1974), of an
Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of
Police or a police officer of equivalent rank,
Shall investigate any offence punishable under this
Act without the order of a Metropolitan Magistrate or a
Magistrate of the first class, as the case may be, or make
any arrest therefore without a warrant:
Provided that if a police officer not below the rank of
an Inspector of Police is authorised by the State
Government in this behalf by general or special order, he
may also investigate any such offense without the order of a
Metropolitan Magistrate or a Magistrate of the first class, as
the case may be, or make arrest therefore without a
warrant:
Provided further that an offense referred to in
[clause (b) of sub-section (1)] of section 13 shall not be
investigated without the order of a police officer not below
the rank of a Superintendent of Police.
18. In the case of Bhajanlal (supra), the Apex Court,
with reference to Section 5-A of the Prevention of Corruption
Act, 1947--which corresponds to Section 17 of the Act, 1988--
the Apex Court ruled that the second proviso to Section 5-A is
mandatory, not merely directory. The Apex Court emphasized
that the investigation by the designated police officer is the rule,
while the investigation by an officer of a lower rank is an
26
exception. Moreover, the requirement to disclose the reasons for
granting permission for such an exception is a significant legal
obligation. This disclosure ensures transparency and
accountability in the investigative process, reinforcing the
integrity of the legal framework governing corruption
investigations.
19. In the case of State of MP v. Ramsingh (supra),
the Apex Court ruled that an order of the Superintendent of
Police (SP), even when in a proforma format, which indicates
the name of the accused, the FIR number, the nature of the
offense, and the authority of the SP to permit a junior officer to
investigate, along with the timing between the registration of
the FIR and the issuance of the order, demonstrates the
application of mind. Furthermore, the Apex Court emphasized
that procedural delays and legal technicalities should not be
allowed to defeat the objectives of the Act. The overarching
public interest and social purpose of the Act must be considered
while interpreting its various provisions and deciding cases
under it.
20. In the case of State of Karnataka v. B Narayana
Reddy (supra), the coordinate Bench of the Court, while
referring to the Bhajanlal and Ramsingh cases, held that
reasons must be provided for entrusting an investigation to a
lower-ranking officer when the Superintendent of Police issues
an order under the second proviso to Section 17 of the Act,
1988. In this case, the learned Single Judge discharged the
petitioner from the offense punishable under Section 13(1)(e)
read with Section 13(2) of the Act, concluding that the orders
passed by the Superintendent of Police were deficient in reasons
for assigning the investigation to a lower-ranking officer,
specifically an Inspector of Police.
21. Therefore, it is evident that the decision of the
Apex Court in Ramsingh's case (supra) should be confined to
the specific facts of that case. The principle established in
Bhajanlal's case remains authoritative: the requirement to
provide reasons for entrusting an investigation to a lower-
ranking officer is imperative. This ensures transparency and
accountability in the investigative process, aligning with the
fundamental legal framework designed to combat corruption.
27
22. The coordinate Bench of this Court in the case of
S.K. Parmesh v. State of Karnataka (in Crl P. No.
464/2013 : DD 23.05.2013) relying on the decision of the
Apex Court in the case of Ram Singh (supra) held that sufficient
attention to detail is devoted in entrusting the investigation to
the police inspector although the authorization order being a
typed proforma.
23. In the case of D. M. Padmanabha and ors. v.
The State of Karnataka by Lokayuktha (WP
No.2413/2024 : DD 27.5.2024), the coordinate Bench of
this Court ruled that perusal of the order of the Superintendent
of Police would go to show that, along with the source report,
the material which was the basis for the preparation of the
source report was also made available and upon verification of
the same, being satisfied that there was a case made out for
investigation for the alleged offenses, the SP of the police
proceeded to pass an order in exercise of the power under
Section 17 of the PC Act. Therefore, it cannot be said that there
was no application of mind by the SP of the Police before
passing an order under the second proviso of section 17 of the
PC Act.
24. In the case of Babu Rao Chinchanasur v. State
by Lokayuktha 2013 SCC OnLine Kar 10386 : 2014 Cri LJ
3310, the coordinate Bench of this Court has ruled as follows:
1) A Special Judge has to apply his mind to any
complaint under Section 200 of Cr.PC to make out whether
the complainant discloses any offense or not, and
thereafter, order an investigation under Section 156(3) of
the Cr.P.C. Thus, the discretion given to the police officer to
determine the existence of any sufficient ground to enter on
an investigation is taken away by the issuance of order
under Section 156(3).
2) It further observed that with respect to the
second proviso to Section 17, the Superintendent of Police
or an officer superior to him is required to apply his mind to
the information and thereafter, come to an opinion that the
investigation on such allegations is necessary.
3) The second proviso to Section 17 of the Act
is but an additional safeguard and protection in relation to
28
the investigation of the offense referred to in Clause (e) of
sub-Section 1 of Section 13, and that when a complaint
under Section 200 of the Cr.P.C. alleging the said offence is
made, it shall be required to be referred to a police officer
of the rank of a rank not less than Superintendent of Police,
who shall on application of his mind and on satisfaction that
an investigation is necessary, direct an investigation into
the allegations in the complaint. Furthermore, it held that if
this mode were to not be adopted, it would defeat the
statutory protection enshrined in the second proviso to
Section 17 of the PC Act, 1988.
25. In the case of State through CBI v Hemendhra
Reddy AIR Online 2023,SC 468 the Apex Court has ruled that
the second proviso is in the nature of additional safeguard for
the public servant who are accused of the offence punishable
under Section 13(1)(e) of the Act, 1988 against the
investigation without the knowledge and consent of a superior
police officer not below the rank of Superintendent of police. A
superior police officer of the rank of Superintendent of police is
required to pass an order before an investigation and before
directing such investigation, is required to apply his mind to the
information and come to an opinion that the investigation on
such allegations is necessary.
26. In the case of K.L. Gangadhariah v. Karnataka
Lokayukta (WP 1182/2023 DD 28.07.2023) a coordinate
bench of this Court had held that the action of Lokayuktha must
inspire confidence of the Court and that the duration of the
check period must either end with the date of registration of the
crime or must immediately precede the date of registration of
crime. The source information report must be scrutinized in its
entirety, as a faulty (meaning inaccurate herein) check period
shall inevitably render the source information report faulty. It is
relevant to note that this judgment is subject matter of
challenge before the Hon'ble Supreme Court.
27. I am in complete concurrence with the view taken
by the coordinate bench that where an order is issued under
the second proviso of section 17 of the Act, 1988 directed an
investigation without arriving at a logical reason as to why the
"clock of the check period in the source information report"
came to an abrupt halt 8 years prior to the date of presentation
of the source report and registration of the crime, it would
29
constitute an incurable transgression of a substantive right
vested in the accused public servant under the second proviso
of Section 17 of the Act, 1988. Interpreting the wordings used in
the second proviso, the Apex Court in the much earlier case of
Inspector of Police v. Surya Sankaram Karri 2006 7 SCC
172 had held the second proviso of the Section 17 of the said
Act to be of a mandatory character and order under the said
proviso had to be passed in writing.
28. The proviso therefore, imposes a graver obligation
on the Superintendent of the Police to verify the contents of the
source information report and other relevant materials so as to
arrive at a prima facie conclusion that there exists sufficient
ground to investigate a case. An order based on the summary
reading in a routine manner, for a fleeting moment does not cut
muster with the legislative intent and object of preventing
frivolous and speculative investigation and irreparable harm
caused to the reputation of public servants by motivated,
reckless and unsubstantiated allegations of criminal misconduct.
Thus, the order issued under the second proviso must be made
upon a comprehensive scrutiny of the source information report.
29. In view of decisions of the Apex Court and of this
Court in cases alluded to above, the ratio enunciated is
summarized as follows:
1) The second proviso is mandatory, not merely
directory. Investigation by the designated police
officer is the Rule, while the investigation by an
officer of a lower rank is an exception.
2) It is imperative that the reasons for granting
permission to a lower rank officer to conduct the
investigation be disclosed. The requirement
ensures transparency and accountability in the
investigative process.
3) The order under second proviso must demonstrate
the application of mind even if it is in a proforma
format.
30
4) The decision in Ram Singh case should be confined
to its specific facts, and the ratio enunciated in
Bhajanlal case remains authoritative.
5) The order under second proviso must disclose that
the material forming the basis of the source report
was verified and there was prima facie satisfaction
that the case is made out for investigation.
30. In light of the above precedents and findings
enunciated above, the true meaning of an order made under the
second proviso to the Section 17 of the Act, 1988 requires to be
considered.
31. An order means a conclusive opinion supported by
reasons. A person affected by an order has an opportunity to
understand the reasons behind it and therefore, aligns with
principles of natural justice. Moreover, it ensures transparency,
accountability and fairness. Requiring reasons acts as a
safeguard against arbitrary or abusive use of investigative
powers. It prevents authorities from conducting investigations
based solely on speculation or personal bias, thereby protecting
individuals from unwarranted intrusion into their privacy or
affairs.
32. The Hon'ble Supreme Court in the case of Steel
Authority of India Ltd. v. Sales Tax Officer, Rourkela I
Circle and Ors. (2008) 9 SCC 407 referencing the
observations made in the case of Raj Kishore Jha v. State of
Bihar (2003) 11 SCC 519 held that reasons are the heartbeat
of every conclusion as it introduces clarity in the order. It
further continued to underscore the importance of reasons in an
order as an objective expression of an opinion that stands the
tests of judicial review. Furthermore, it evidences application of
mind, and is in congruence with the time honored principles of
natural justice.
33. In the case of Assistant Commissioner,
Commercial Tax Department, Works Contract & Leasing,
Kota v. M/s Shukla & Brothers (2010) 4 SCC 785, where
an appeal was preferred against the dismissal of a revision
petition by the High Court in a one line cryptic order, the
Hon'ble Supreme Court expounded the doctrine of 'audi alteram
31
partem' into 3 essential ingredients - firstly, a person against
who an order is required to be passed or whose rights are likely
to be adversely affected must be granted an opportunity of
being heard; secondly, the concerned authority should provide a
fair and transparent procedure; and lastly, the authority must
apply its mind and dispose of the matter by a reasoned order.
34. It further held that "reasons are the soul of
orders", and "non-recording of reasons could lead to dual
infirmities; firstly, it may cause prejudice to the affected party
and secondly, more particularly, hamper the proper
administration of justice." It further held that these principles
were applicable not only to administrative and executive actions
but also to judicial pronouncements.
35. In Birla Corporation Ltd. v. Adventez
Investments and Holdings Ltd. and Ors (2019) 16 SCC
610, where the Apex Court was arrested with the subject of
issuance of process under Section 204 of Cr.P.C., it observed
that "to be summoned / to appear before the criminal court as
an accused is a serious matter affecting one's dignity and
reputation in the society" and that a criminal case cannot be
registered as a matter of course on a complaint filed otherwise
than on a police report, but on application of mind as to whether
the allegations in the complaint constitute essential ingredients
of the offense and whether there are sufficient grounds for
proceeding against the accused.
36. It further observed that the Magistrate before
taking cognizance must on application of mind, be prima facie
satisfied on scrutiny and assessment of the allegations in the
complaint, the statement of the complainant and other materials
along with the record of the case as to whether there exists
sufficient ground for proceeding against the accused.
37. In the present cases, the orders passed under
second proviso to Section 17 are extracted as follows.
WP.NO.22483/2023:
PROCEEDINGS OF THE SUPERINTENDENT OF POLICE KARNATAKA
LOKAYUKTA, KOLAR DIVISION, KOLAR.
32
I have gone through the source report submitted by Smt.
Renuka.A.V, P.I, KLA, Kolar, relating to her receipt of credible
information that Sri.N.Venkatesh, E.O, Bangatpet Taluk panchayath,
kolar district, has acquired properties disproportionate to his known
source of income to the extent of Rs.1,09,52,291/- with extent of
108% and thereby committed an offence U/s 13(1) (b) R/W 13(2) of
Prevention of Corruption Act-1988. (Amendment-2018).
From the material placed before me and with the application
of my mind, I am satisfied that a prima facie case is made out
against Sri. N.Venkatesh, E.O, Bangarpet Taluk panchayath,
warranting a statutory investigation for and offence U/s 13(1)(b)R/W
13(2) of Prevention of Corruption Act-1988 (Amendment-2018).
ORDER NO.LOK/INV(G) KLR/SP/01/2023,
DATED:21/04/2023.
Therefore by virtue of the powers vested in me under the
provisions of section 17(c) of the prevention of corruption Act-1988,
(Amendment-2018), I B.K.Umesh, Superintendent of Police,
Karnataka Lokayukta, Kolar, order that Sri.V. Suryanarayana Rao
DySP, KLA, Kolar to register a case under section 13(1)(b) r/w 13(2)
of Prevention of Corruption Act-1988(amendment-2018) against
AGO Sri. N.Venkatesh, E.O, Bangarpet Taluk panchayath and to
investigate the said case. I know Sri. V. Suryanarayana Rao, Deputy
Superintendent of police and he 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 of
asset cases.
Further, I authorise Sri. V.Suryanarayana Rao, Dy.SP, KLA,
Kolar, under the Provisions of section 18 of the P.C.Act-1988 to
inspect the banker books in so for as it relates to the accounts of the
persons suspected to be holding money on behalf the said. AGO
Sri.N.Venkatesh E.O, Bangar pet taluk panchayath, and 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.V.Suryanarayana Rao, KLA Kolar in the powers under the said
section of law.
Given under my Signature and seal of this Office on
21/04/2023.
Crl.p.No.514/2024:
Source Report submitted by Sri.RAVIKUMAR.A, Police
Inspector, Karnataka Lokayukta, Mysuru P.S. Dated: 08.05.2023
33
I have gone through the source report submitted by Sri.
RAVIKUMAR.A, Police Inspector, Karnataka Lokayukta, Mysuru.
relating to his receipt of credible information that Sri A.Nagesh,
Assistant Executive Engineer, Mysuru Urban Development Authority,
Mysuru has acquired properties disproportionate to his known source
of income to the extent of Rs. 1,38,50,000-00 and thereby
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 A.Nagesh, Assistant Executive Engineer, Mysuru urban
development authority, Mysuru 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/MYS/SP/INV/MYSURU/03/2023, DATED
30.05.2023.
Therefore by virtue of the power 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 Lokayukta, Mysuru Division, Mysuru order that Sri
Malteesh S.K. Deputy Superintendent of Police-2, Karnataka
Lokayukta, Mysuru 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 A.Nagesh, Assistant Executive
Engineer, Mysuru Urban Development Authority, Mysuru, and to
investigate the said case. I know Urban Desh S.K. Deputy
Superintendent of Police-2 and he is having the knowlegde 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 Malteesh S.K. Deputy Superintendent
of Police-2, Karnataka Lokayukta, Mysuru Station Mysuru, under the
provision of the section 18 of the Prevention of Corruption Act 1988,
(Amendment Act 2018) 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 A.Nagesh, Assistant Executive Engineer,
Mysuru Urban Development Authority, Mysuru 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 Malteesh S.K. Deputy Superintendent of
Police-2, Karnataka Lokayukta, Mysuru Station Mysuru in the
exercise of the power under the said section of law.
34
WP.no.19512/2022:
PROCEEDINGS OF THE SUPERINTENDENT OF POLICE,
ANTI CORRUPTION BUREAU, BANGALORE CITY
Sub: Possession of properties disproportionate to known
source of income by Sri Shivakumar B.K, Additional Director, of
commerce and Industry, Department, Khanija bhavan Bengaluru.
Ref: Source Report submitted by Sri Nayaz Baig. Police
Inspector, Anti Corruption Bureau, Bangalore City P.S, Dated 08-03-
2022.
I have gone through the source report submitted by Sri Nayaz
Baig, Police Inspector, Anti Corruption Bureau, Bangalore City P.S,
relating to his receipt of credible information that Sri Shivakumar.B
K. Additional Director, commerce and Industry Department, Khanija
bhavan Bengaluru has acquired properties disproportionate to his
known source of income to the extent of Rs. 3,42,76,000-00 and
there by committed an offence under section 13(1)(b) r/w 13(2) of
Prevention of Corruption Act 1988.
From the material placed before me and with application of
my mind I am satisfied that a prima-facie case is made out Sri
Shivakumar B.K, Additional Director, commerce and Industry
Department, Khanija bhavan Bengaluru, Warranting a statutory
investigation for an offence under section 13(1)(b) r/w 13(2) of
Prevention of Corruption Act 1988.
ORDER NO.ACB/INV/B.CITY/SP/16/2022, DATED 15.03.2022
Therefore by virtue of the powers vested in me under
provisions of Section 17 of the Prevention of Corruption Act 1988, I,
Yatish chandra.G.H. IPS, Superintendent of Police, Anti Corruption
Bureau, Bangalore City Divison, Bangalore order that Sri K.Ravi
Shankar, Deputy Superintendent of Police, Anti Corruption Bureau,
Bangalore City Police Station, Bangalore to register a case under
Section 13(1)(b) r/w 13(2) of Prevention of Corruption Act 1988
against Sri Shivakumar.B.K. Additional Director, commerce and
Industry Department, Khanija bhavan Bengaluru and to investigate
the said case. I know Sri. K Ravi Shankar, Deputy Superintendent of
Police and he 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.
35
Further I authorize Sri K.Ravi Shankar, Deputy
Superintendent of Police, Anti Corruption Bureau, Bangalore City
Police Station, Bangalore, under the provisions of the section 18 of
the Prevention of Corruption Act 1988 to inspect the bank accounts
in so far as it relates to the accounts of the persons suspected to be
holding money on behalf of the said Sri Shivakumar.B.K, Additional
Director, commerce and Industry Department, Khanija bhavan
Bengaluru 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 K. Ravi
Shankar, Deputy Superintendent of Police, Anti Corruption Bureau,
Bangalore City Police Station, Bangalore, in the exercise of the
powers under the said section of law.
Crl.p.No.9086/2023:
PROCEEDINGS OF THE SUPERINTENDENT OF POLICE
KARNATAKA LOKAYUKTA, KOLAR DIVISION, KOLAR.
Sub: Possession of property disproportionate to the known
Source of income by AGO Sri. N.Venkatesh, E.O, Bangarpet Taluk
panchayath, Kolar District. R/O of Bangarpet Town.
Ref: 1)Source Report submitted by Smt. Renuka A.V, PI,
KLA Kolar, dated: 24/03/2023.
2) Lok/IGP/MEMO/SIR-08/2023 Dated: 20.04.2023
I have gone though the source report submitted by Smt
Renuka A.V, P.I. KLA, Kolar, relating to her receipt of credible
information that Sri. N. Venkatesh, E.O, Bangatpet Taluk
panchayath, kolar district, has acquired properties disproportionate
to his known source of income to the extent of Rs.1,09,52,291/- with
extent of 108 % and thereby committed an offence U/s 13(1) (b)
R/W 13(2) of Prevention of Corruption Act-1988. (Amendment-
2018).
From the material placed before me and with the application
of my mind, I am satisfied that a prima facie case is made out
against Sri. N.Venkatesh, E.O, Bangarpet Taluk panchayath,
warranting a statutory investigation for an offence U/s 13(1)(b)R/w
13(2) of Prevention of Corruption Act-1988 (Amendment-2018).
ORDER NO.LOK/INV(G) KLR/SP/01/2023,
DATED:21/04/2023.
36
Therefore by virtue of the powers vested in me under the
provisions of section 17(c) of the prevention of corruption Act-1988,
(Amendment-2018), I B.K.Umesh, Superintendent of Police,
Karnataka Lokayukta, Kolar, order that Sri.V. Suryanarayana Rao
DySP, KLA, Kolar to register a case under section 13(1) (b) r/w
13(7) of Prevention of Corruption Act-1988 (amendment-2018)
against AGO Sri. Venkatesh, E.O, Bangarpet Taluk panchayath and
to investigate the said case. I know Sri. V Suryanarayana Rao,
Deputy Superintendent of police and he 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 of
asset cases.
Further, I authorise Sri. V. Suryanarayana Rao, Dy SP, KLA,
Kolar, under the Provisions of section 18 of the P.C.Act-1988 to
inspect the banker books in so for as it relates to the accounts of the
persons suspected to be holding money on behalf of the said. AGO
Sri.N.Venkatesh E.O, Bangar pet taluk panchayath, and 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. V. Suryanarayana Rao, KLA Kolar in the powers under the said
section of law.
Given under my Signature and seal of this Office on
21/04/2023.
wp.no.19662/2023:
PROCEEDINGS OF THE SUPERINTENDENT OF POLICE-2
KARANATAKA LOKAYUKTA, BANGALORE CITY.
Sub: Possession of properties disproportionate to known
source of income by Sri Shivaraju 5/o Basavegowda, Tahasildar
Grade-2, Revene Department, M.S Building, Bengaluru
Ref: Source Report submitted by Smt.Umadevi R, DYSP,
Kamataka Lokayuktha, Bangalore City P.S, Dated 14.08.2023.
I have gone through the source report submitted by Smt
Umadevi. R. Deputy Superintendent of Police, Karnataka Lokayukta,
Bangalore City P.S. relating to her receipt of credible information
that Sri Shivaraju S/o Basavegowda, Tahasildar Grade-2, Revenue
Department, M.S Building. Bengaluru has acquired properties
disproportionate to his known source of income to the extent of
Rs.2.95,55,000/- and thereby committed an offence under section
13(1)(b) r/w 13(2) of Prevention of Corruption Act 1988.
37
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 Shivaraju S/o Basavegowda, Tahasildar Grade-2. Revenue
Department, M.S Building. Bengaluru warranting a statutory
investigation for an offence under section 13(1)(b) r/w 13(2) of
Prevention of Corruption Act 1988.
ORDER NO.KLA/INV/BCD/SP-2/08/2023, DATED
16.08.2023.
Therefore by virtue of the powers vested in me under
provisions of Section 17 of the Prevention of Corruption Act 1988. I,
Ashok K.V., Superintendent of Police-2, Karnataka Lokayukta.
Bangalore City Division, Bangalore order that Sri. Manjunath G
Hugar, Police Inspector-05, Karnataka Lokayukta, Bangalore City
Police Station, Bangalore to register a case under Section 13(1)(b)
r/w 13(2) of Prevention of Corruption Act 1988 against Sri Shivaraju
S/o Basavegowda. Tahasildar Grade-2. Revene Department, M.S
Building. Bengaluru and to investigate the said case
Further I authorize Sri Manjunath G Hugar. Police Inspector-
05, Karnataka Lokayukta, Bangalore City Police Station, 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 Shivaraju S/o Basavegowda, Thasildar Grade-2 Revenu
Department, M.S Building, 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
Manjunath G Hugar, Police Inspector- 05. Karnataka Lokayukta,
Bangalore City Police Station, Bangalore in the exercise of the
powers under the said section of law.
WP.No.20697/2023:
PROCEEDINGS OF THE SUPERINTENDENT OF POLICE
KARNATAKA LOKAYUKTHA, DAVANAGERE.
Subject: Prossession of Properties Disproportionate to the
known sources of income by Sri N.J.Nagaraj, Takashildar, Holalkere
Taluk office, Chitradurga District.
38
Reference: Source Report submitted by Sri. Anjaneya. N.H.
Police Inspector. Lokayuktha Police Station, Davanagere,
No:Lok/DVG/PI-2/ SOURCE REPORT/02/2023 Dtd.:01/04/2023
I have gone through the source report submitted by Sri.
Anjaneya.N.H, PI, Lokayuktha Police Station, Davanagere, relating to
his receipts of credible information that one Sri N.J.Nagaraj,
Tahashildar, Holalkere Taluk office, Chitradurga District, has acquired
properties Disproportionate to his known sources of income to the
extent of Rs 1,27,49,000/- and there by committed an offence under
section 13(1)(b), 13(2) the 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 N.J.Nagaraj, Tahashildar, Holalkere Taluk office, Chitradurga
District, warranting a statutory investigation for an offence under
section 13(1)(b), 13(2) the prevention of corruption Act-1988
(amendment Act-2018). 1, Superintendent of Police Karnataka
Lokayuktha, Davanagere have been specially authorised to
investigate cases under the Prevention of Corruption Act-1988
(amendment Act-2018).
ORDER NO: Lok//SP/DVG/02/2023, Date: 21.04.2023.
Therefore by virtue of the powers vested in me under section
17 of the prevention of Corruption Act-1958 (amendment act-2018),
1, M.S.Koulapure, Superintendent of Police, Karanakta Lokayuktha
Davanagere order that Sri. Rashtrapathi.IL.S, PI, Lokayuktha Police
Station, Davanagere, to register a case under section 13(1)(b),
13(2) PC Act-1988 (Amendment act- 2018) against Sri N.J.Nagaraj,
Tahashildar, Holalkere Taluk office, Chitradurga District. and to
investigate the said case.
Further I authorize Sri. Anjaneya.N.H, PI, Loakayuktha Police
Station, Davanagere under the Prevention of Corruption Act-1988 to
inspect the Bankers books in so for as relates to the accounts of
persons suspected to be holding money on behalf of the said Sri Sri
N.J.Nagaraj, Tahashildar, Holalkere Taluk office, Chitradurga District,
and to take or cause to be taken certified copies of the relevant
entries there from and to freeze the bank accounts as per section
102 of Cr.P.C if necessary, the bankers concerned shall be bound to
assist the Police Officer Sri. Rashtrapathi.H.S, PI, Lokayuktha Police
Station, Davanagere to exercise the powers under the P.C Act-1988
(Amendment Act-2018)
39
WP.No.22626/2023:
The Certified Copy of the Order dated 21.08.2023 passed by
the Superintendent of Police under Second proviso of the Section 17
PC Act, 1988:
Rest is in kannada untranslatable.
Wp.No. 27760/2023:
PROCEEDINGS OF THE SUPERINTENDENT OF POLICE,
KARNATAKA LOKAYUKTA, BANGALORE CITY DIVISION
Sub: Possession of properties disproportionate to the known
sources of income by S. Nataraja, Revenue inspector, Hoodi Ward
No.54, Mahadevapura, B.B.M.P., Bengaluru.
Ref: Source report submitted by Shri Basavaraja. G. Pulhari
PI-10, KLA, Bengaluru City on 09.08.2023
With respect to the above cited subject and reference, it is
ascertained that S. Nataraja, Revenue inspector, Hoodi Ward No.54,
Mahadevapura, B.B.M.P., Bengaluru, has acquired properties
disproportionate to his known sources of income to the extent of Rs.
3,05,01,000.00/-i.e., 338.90% and thereby committed an offence
punishable under Sec. 13(1)(b) r/w 13(2) of the Prevention of
Corruption Act-1988.
From the material placed before me and with the application
of my mind, I am satisfied that a prima facie case has been made
out against S.Nataraja, Revenue inspector, Hoodi Ward No.54,
Mahadevapura, B.B.M.P., Bengaluru warranting a statutory
investigation for an offence punishable under Sec. 13(1)(b) r/w
13(2) of the Prevention of Corruption Act-1988.
Hence I pass the following Order.
ORDER NO. LOK/INV(G)/CITY/38/2023, DATED:16/08/2023
Therefore, by virtue of the powers vested in me under the
provisions of Sec. 17 of the Prevention of Corruption Act 1988, I,
Ashok.K.V., IPS., Superintendent of Police-2, Karnataka Lokayukta,
Bengaluru City hereby authorize Sri Srikanth.S Police inspector-01
Karnataka Lokayukta, Bengaluru City to register a case under Sec.
13(1)(b) r/w 13(2) of the Prevention of Corruption Act-1988 against
S.Nataraja, Revenue inspector, Hoodi Ward No.54, Mahadevapura,
B.B.M.P., Bengaluru and to investigate the said case.
40
Further, I authorize Sri Srikanth.S Police inspector-01
Karnataka Lokayukta, Bengaluru City under the provisions of
Sec. 18 of the Prevention of Corruption Act -1988 to inspect the
Banker Books in so far as it relates to the accounts of the
persons suspected to be holding money on behalf of the accused
and his family members and benami persons and take or cause
to be taken certified copies of the relevant entries there from,
the bankers concerned shall be bound to assist the said Police
Officer in the exercise of the powers under the said section of
law.
38. In the present cases, all orders issued by the
Superintendent of Police under the second proviso are in a
standardized, cyclostyled format. The only variations are the
names of the accused, the name of the Superintendent of
Police, and the amounts of the disproportionate assets. These
orders reveal that, in some instances, the Superintendent of
Police has not reviewed the source report. In other instances,
the Superintendent of Police has reviewed the source report,
considered the materials presented, and has concluded
thereafter that a prima facie case warranted investigation.
39. However, the orders do not indicate whether the
information that formed the basis of the source report was
reviewed. Furthermore, no reasons are provided for forming the
opinion that a prima facie case exists, necessitating a statutory
investigation against the petitioners. As a result, the orders
authorizing police inspectors to conduct investigations are not in
compliance with the second proviso to Section 17. They also fail
to align with the legal principles established by the Supreme
Court and this Court concerning the provision. Consequently,
the registration of the First Information Reports (FIRs) is
invalidated.
Point No.(ii):
40. The conducting of the preliminary enquiry in the
corruption case was considered by the Apex Court in the cases
of Lalitha Kumari v. Govt of U.P. 2013 14 SCR 713, P.
Sirajuddin Etc. v. State of Madras 1971 AIR SC 520,
Charan Singh v. State of Maharashtra (2021) 5 SCC 469,
and it was ruled that an enquiry at a pre-FIR stage is held to be
permissible but not only permissible but desirable, more
41
particularly in cases where the allegations are of misconduct of
corrupt practice acquiring asset disproportionate to his known
source of income. However, It was clarified in the case of CBI
v. H T Vijayalakshmi (supra) that the preliminary *enquiry
cannot be demanded by the accused as a matter of right, but is
desirable if the information received does not disclose a
cognizable offense but indicates the necessity for enquiry, a
preliminary enquiry may be conducted to ascertain whether
cognizable offense is disclosed or not. It was also observed that
as to what type and in which cases the preliminary *enquiry is
to be conducted will depend upon the facts and circumstances of
the cases. Referencing the case of State of Telangana v.
Manajipet alias Mangipet Sarveshwar Reddy (2019) SCC
OnLine SC 1559, the Apex Court in the case of Vijayalakshmi
upheld the ratio that the object of the preliminary enquiry was
to not vest the right to a preliminary enquiry in the accused but
to ensure there is no abuse of the process of law in order to
target public servants. Moreover, the Apex Court has
periodically held referencing the ACB, CBI and the Lokayuktha
Manuals that "even when a preliminary enquiry is initiated, it
has to stop as soon as the officer ascertains that enough the
material has been collected which discloses the commission of a
cognizable offense."
41. In the instant cases, on perusal of the source
information reports produced, although properties standing in
the name of the public servant or the family members are
purchased out of loans borrowed from Banks/financial
institutions etc., the same is not reflected in the source report.
42. Furthermore, the assets standing in the names of
the parents, spouses, major children, married sisters and
brothers, who are employed, are also erroneously included in
the source report without mentioning the dates of acquisition
thereof.
43. The source report must reveal the date and nature
of acquisition of assets and not merely state the assets standing
in the name of the public servant, his spouse, children and
relatives. The valuation of the immovable properties is
imaginary and not based on any objective assessment with
reference to their market value at the time of their acquisition.
42
44. The source report should reveal the petitioner's
income from actual salary drawn during the period of the check
period. For instance, in WP No.19512/2022, the petitioner was
appointed as an Assistant Director, Department Industries and
Commerce, Government of Karnataka on 4.5.1994 and at
present he is working as Additional Director. The income of the
petitioner from the date of joining into service till date is taken
as Rs.30,00,000/- as against Rs.1,79,79,000/-. Although, the
net salary of the petitioner as on February, 2022 is taken as
Rs.1,71,427/- and gross salary at Rs.1,09,600/- For thirty
years in service, the income of the petitioner has been
inaccurately calculated to a mere Rs.30,00,000/-.
45. Conducting a preliminary *enquiry is
advisable under the following circumstances:
1. When movable or immovable properties are
registered in the name of the spouse, major children, or any
other family members of the accused, it is imperative to verify
whether these acquisitions align with their respective legitimate
earnings from professions or employment.
2. When properties have been acquired by spouses,
children, or other family members through inheritance or as
gifts from individuals who are not public servants, a thorough
*enquiry is necessary to confirm the legitimacy of such transfers
and their compliance with legal provisions.
3. In cases where there is a significant miscalculation
or discrepancy in the reported income of the public servant
during the specified check period, a detailed examination is
required to accurately determine the actual income earned
during that period, ensuring a fair assessment.
4. When alleged assets are registered in the names of
unrelated strangers or entities, it is crucial to investigate any
potential hidden connections or proxies acting on behalf of the
public servant.
5. Verification of the timing of asset acquisitions is
essential, especially concerning assets listed in the source
information report acquired before the commencement or after
43
the expiry of the check period, ensuring they fall within the
relevant scrutiny period.
6. When the source report lacks specific details such
as the specified check period, items marked as 'Nil' during the
check period, or non-consideration of loans in the income
column, a preliminary *enquiry is essential to clarify and obtain
precise information regarding the period under investigation and
the specific assets involved.
46. By conducting a preliminary *enquiry under these
circumstances, investigators can ensure that any further actions
are based on well-founded suspicions and accurate information,
thereby upholding the principles of fairness and justice.
47. However, it may be pertinent to add that the above
guidelines are merely illustrative of circumstances in which a
preliminary *enquiry may be conducted and and that it may not
be possible for Courts of Law to envisage and define precisely
the exhaustive gamut of circumstances in which such an enquiry
must be conducted. It is incumbent upon the investigators to
conduct due verification and scrutiny of the record of the case
and the materials submitted therewith, prior to the setting the
criminal law into motion.
48. In view of the facts of the instant cases, the
petitioners have objectively made out a case for the desirability
of conducting a preliminary enquiry.
Point No.(iii):
49. Section 17 is a non-obstante clause and states that
notwithstanding anything contained in the Code of Criminal
Procedure, no police officer below the rank specified in clauses
(a) to (c) shall investigate any offense punishable under this Act
without the order of the jurisdictional Magistrate.
50. The first proviso states that an officer not below
the rank of police inspector, who is authorized by the State
Government, may also investigate any such offense without the
order of the jurisdictional Magistrate.
44
51. The second proviso states that in respect of an
offense referred to in clause (b) of sub-Section (1) of Section
13, the police inspector shall not investigate without the order of
a police officer not below the rank of a Superintendent of Police.
52. A reading of the above provisions indicates that
there is no bar on registering the FIR by the investigating police
officer without obtaining an order of authorization to investigate.
In other words, the additional safeguard inherent in the second
proviso of Section 17 is attracted only when the stage of
investigation is reached. Therefore, the question before us is
whether an FIR may be registered for alleged offenses
punishable under the Act of 1988 before obtaining an order of
authorization under the second proviso of Section 17 of the Act,
with reference to the provisions contained in Sections 154, 156,
and 157 of the Code of Criminal Procedure.
53. Therefore, what is to be considered is whether the
procedural safeguards outlined in Section 17 apply strictly to the
investigation phase, thereby allowing the registration of an FIR
to proceed independently of the need for prior authorization.
The relationship between the provisions of the Act of 1988 and
the Code of Criminal Procedure must be examined to determine
if the initiation of an FIR can precede the investigative
authorization stipulated by the second proviso of Section 17.
54. Section 154 of Cr.P.C. places an obligation on a
police officer in charge of a police station to record or cause to,
the substance of every information relating to the commission of
a cognizable office.
55. Section 156 of Cr.P.C. grants plenary powers to the
police officer in-charge of a police station to investigate any
cognizable case within the limits of such station, without the
order of the jurisdictional Magistrate. The Section employs the
word 'may,' indicating the according of discretion to the
concerned police officer so as to examine from the ascertained
facts and circumstances of the case, as to whether there exists
sufficient ground to enter on an investigation.
56. Section 157 of the Code provides for where it
appears to the investigating officer that there is no sufficient
ground to enter on an investigation, the said officer may in the
45
exercise of his discretion choose not to investigate the case,
with reasons to be recorded in the report to be sent to the
jurisdictional Magistrate. Furthermore, in the interest of
transparency and accountability, the Code also compels the said
officer to forthwith notify the informant of the fact that he will
not investigate the case.
57. Sri Sandesh J Chouta, learned senior counsel
argued that the Supreme Court in the Kailash Vijayvargiya case
clearly distinguished between the responsibilities of the police to
register an FIR and to investigate it, treating them as separate
functions under the law. In the Lalita Kumari case, the Court
underscored the mandatory nature of Section 154(1) of the
Criminal Procedure Code (Cr.P.C.). This section mandates that
the police must register an FIR whenever they receive
information about the commission of a cognizable offense, with
no discretion to ignore or delay this process.
58. The rationale behind this mandate is to prevent any
information about such offenses from being ignored, which could
otherwise protect the accused unjustly. By removing police
discretion in this matter, the law aims to curb arbitrary actions
by the police and protect the liberty of individuals. This
mandatory registration serves as a crucial right for those
seeking justice, ensuring timely investigations and preventing
any potential manipulation in criminal proceedings.
59. The Apex Court has ruled that "Section 157
requires more stringent criteria than Section 154 of the Cr.PC,"
giving the investigating officer discretion to determine whether
there is sufficient ground to begin an investigation. Additionally,
the Court emphasized that "the Magistrate is involved at all
stages of the investigation process."
60. Moreover, in the case of Shivashankara Murthy
(Crl.P No.10109/2024 : DD 25.4.2024), a coordinate Bench
of this Court referenced a Circular dated 11.05.2023 issued by
the Director General of Police, Karnataka Lokayukta. The Bench
stated that an FIR must be registered first, and then the
Superintendent of Police must authorize the investigation under
Section 17 of the Prevention of Corruption Act, 1988.
46
61. In the case of G. M. Shivakumar (supra), an FIR
was immediately registered following the presentation of the
source report. Subsequently, upon the issuance of the order
under the second proviso of Section 17 of the Prevention of
Corruption Act, 1988, a coordinate bench of this Court quashed
the order of cognizance taken by the Trial Court, despite the
prior exoneration of the accused in the departmental *enquiry.
62. The Court remarked that the Superintendent of
Police's directive to register an FIR immediately upon receiving
the source report, based solely on suspicions of asset
accumulation allegedly disproportionate to known sources of
income, clearly demonstrated a lack of verification of the
contents of the source report. The Court further held that such
circumstances unequivocally necessitate the conduct of an
*enquiry to verify the allegations before proceeding with the
registration of an FIR.
63. A similar issue was considered by the High Court of
Bombay in the case of Ram Rijhumal Kriplani v. The State,
1957 SCC Online Bom 54. This case examined Section 5A of
the Prevention of Corruption Act, 1947, which corresponds to
Section 17 of the Prevention of Corruption Act, 1988. The court
made a distinction between the stages of filing the first
information report (FIR), conducting an investigation, and taking
cognizance of the offense.
64. The Court held that the provisions of Section 5A of
the 1947 Act only apply once the investigation stage is reached.
These provisions do not apply at the stage of filing the FIR. The
Court noted that the stage of registering the FIR comes before
the stage of investigation and that the FIR is the basis upon
which the investigation under Chapter XIV of the Code of
Criminal Procedure (Cr.P.C.) begins. It further noted that an FIR
represents the informant's initial case.
65. The Court further explained that an investigation
into the facts and circumstances of a case can only start once
the FIR has been filed and the officer in charge of the police
station has sent a report of the suspected offense to the
jurisdictional Magistrate. Therefore, the provisions of Section 5A
of the 1947 Act (corresponding to Section 17 of the 1988 Act)
do not affect or override the provisions related to filing of an FIR
47
for cognizable offenses under Section 154 of the Cr.P.C., which
has universal application.
66. Furthermore, this Court in the case of Babu Rao
Chinchansur (supra) has duly recognised the distinction
between the two stages, wherein the Court ultimately concluded
that whilst a private complaint under Section 200 of the Cr.P.C
against an offense punishable under Section 13(1)(e) of the Act,
1988 was maintainable, however, sanction under Section 19 of
the Act, 1988 was a condition precedent to entertain the said
complaint.
67. The established legal principles enunciated by the
Hon'ble Supreme Court and High Courts can be summarized as
follows:
1) Registration of FIR vs. Authorization of Investigation:
Second Proviso to Section 17 of the Prevention of
Corruption Act, 1988 mandates that for offenses under
the Act, no investigation can proceed without
authorization from a Superintendent of Police. However,
this authorization requirement applies at the stage of
investigation and not to the initial registration of an FIR.
2) Mandatory FIR Registration: Section 154 of the Code of
Criminal Procedure (CrPC) mandates that police must
register an FIR upon receiving information about a
cognizable offense, with no discretion to delay or ignore
unless the information is non-cognizable.
3) Discretion in Investigation: Section 156 of CrPC grants
discretion to the police officer in charge of a police station
to investigate any cognizable offense based on the facts
and circumstances known to them.
4) Judicial Interpretation: The Apex Court and the High
Court/s have clarified that the requirement for
investigation authorization under Section 17 of the
Prevention of Corruption Act comes into play only after
the FIR is registered. The initial step of FIR registration is
not contingent upon obtaining prior investigation
authorization.
48
5) Separation of Powers: The judiciary has upheld the
distinction between FIR registration and the subsequent
investigation stage, emphasizing that the mandatory
registration of FIRs is aimed at preventing any
information about offenses from being overlooked or
delayed.
68. In essence, while Section 17 imposes strict
procedural safeguards for the investigation stage of offenses
under the Prevention of Corruption Act, it does not hinder the
police from registering an FIR promptly upon receipt of
information about such offenses.
69. Based on the principles established in decisions by
the Apex Court and High Courts, when an FIR is mandatorily
registered for an alleged offense under Section 13(1)(b) of the
PC Act, 1988, the police officer must submit the report to the
Magistrate under Section 157 of the Cr.P.C. Additionally, the
police officer should forward it to the Superintendent of Police
along with the source information report and other materials
that form the basis for preparing a credible source report. This
is to request an order of investigation under the second proviso
of Section 17 of the Act. The right to register an FIR stands
independently and is not affected by any statutory bar,
specifically in cases involving offenses described in clause (b) of
sub-section (1) of section 13 under the 1988 Act.
70. In these cases, the authorization granted to
investigate preceded the registration of FIRs and is thus,
impermissible and is nullified.
71. Accordingly, I pass the following:
ORDER
i) The petitions are allowed.
IN WRIT PETITION NO. 22483 OF 2023:
The impugned proceedings In Crime No.14/2023 pending on the file of the learned District and Sessions and Special Court, Davanegere stands quashed.
49IN CRIMINAL PETITION NO. 9086 OF 2023:
The impugned proceedings in Cr.No.03/2023 dated 21.04.2023 vide Annexure-A registered in Lokayuktha Police Kolar District, Kolar pending on file of the Principal District and Sessions Judge, Kolar, stands quashed.
IN CRIMINAL PETITION NO. 514 OF 2024:
The impugned proceedings in Crime No.8/2023 registered by the Lokayuktha Police, Mysuru, pending on the file of the III Addl. District and Sessions and Spl. Court, Mysore, stands quashed.
IN WRIT PETITION NO. 19512 OF 2022:
The impugned proceedings in Crime No.21/2022 pending on the file of XXXIII Additional City Civil and Sessions Judge, Bengaluru, stands quashed.
IN WRIT PETITION NO.19380 OF 2023:
The impugned proceedings in Crime No.35/2023 pending on the file of 23rd City Civil and Sessions Judge Bangalore stands quashed.
IN WRIT PETITION NO.19662 OF 2023:
The impugned proceeding in Crime No.36/2023 registered by the respondent pending in the file of XXIII Addl. City Civil and Session Judge at Bangalore produced -B stands quashed.
IN WRIT PETITION NO. 20697 OF 2023:
The impugned proceedings in Crime No.11/2023 registered by the respondent (Annexure-A) stands quashed.
IN WRIT PETITION NO. 22626 OF 2023:50
The impugned proceedings in Crime No.39/2023 registered by the respondent No.1 pending on the file of XXIII Addl. City Civil and Sessions Judge for prevention of Corruption Act at Bengaluru (CCH-24) stands quashed.
IN WRIT PETITION NO. 27760 OF 2023:
The impugned proceedings in Crime No.38/2023 pending on the file of 23rd Addl. City Civil and Session Judge Bengaluru registered by the respondent police stands quashed." The dicta of coordinate Benches is binding on this Bench. Therefore, I deem it appropriate to follow the judgments rendered by the coordinate Benches, which have granted relief to those petitioners in identical circumstances, by quashing FIRs based on either faulty source report or the order permitting investigation did not bear application of mind. It would be contrary to settled principle of law, if judicial decisions of coordinate Benches are not followed, if the issue is identical.
11. It is an admitted fact that the issue is identical in the case at hand. Therefore, without any independent analysis, I deem it appropriate to follow the said decisions and grant the same relief to the petitioner in the case at hand as well, however, observing that hands of Lokayukta are not tied due to the quashment of the 51 impugned proceedings. It is always open to it to independently register a FIR, as is observed by the coordinate Benches in the course of the orders.
12. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) FIR in Crime No.8 of 2023 registered against the petitioner by the Karnataka Lokayukta on 27-06-2023 stands quashed.
Sd/-
(M. NAGAPRASANNA) JUDGE bkp CT:SS