Karnataka High Court
Manohar H Tahsildar B E vs Karnataka Lokayuktha Police on 7 February, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 07TH DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION No.11702/2013
C/w
CRIMINAL PETITION No.11777/2013
IN CRIMINAL PETITION No.11702/2013
BETWEEN
MANOHAR H TAHSILDAR B E
AGE: 66 YEARS,
S/O. HANUMANTHAPPA
MEMBER
KARNATAKA LEGISLATIVE ASSEMBLY
PRESIDENT OF THE PREMISES
SITUATED COVER TALUK OFFICE ROAD,
HANGAL, DIST:HAVERI
... PETITIONER
(BY SRI. C.V. NAGESH, SR. COUNSEL FOR
SRI. V.M.SHEELVANT, ADVS.)
AND
1. KARNATAKA LOKAYUKTHA POLICE
HAVERI
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2. P S HEBBAL
MAJOR IN AGE,
FATHER'S NAME NOT KNOWN
ADVOCATE BY PROFESSION
R/O. NELLIBEEDA VILLAGE
HANGAL TALUK,
HAVERI DISTRICT. ... RESPONDENTS
(BY SRI. JAGADISH PATIL, ADV. FOR R-1)
(SRI P.S. HEBBAL - R-2 PARTY-IN PERSON)
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED
26.11.2013 PASSED IN THE CASE REFERRING THE
COMPLAINT OF THE SECOND RESPONDENT TO THE FIRST
RESPONDENT-POLICE FOR INVESTIGATION AND REPORT
U/S 156(3) OF CR.P.C. AND FURTHER BE TO QUASH THE
FIR FILED BY THE FIRST RESPONDENT-POLICE PURSUANT
TO THE ORDER OF REFERENCE MADE BY THE SPL.
JUDGE, HAVERI, IN KLPF CR. NO.9/2013.
IN CRIMINAL PETITION No.11777/2013
BETWEEN
TIPPANNA S/O. HULAGAPPA GEJJIHALLI
AGE: 42 YEARS, OCC: GOVERNMENT
PRIMARY SCHOOL ASSISTANT
TEACHER AND LITERATE
CO-ORDINATOR TALUK PANCHAYAT
HANGAL, DIST: HAVERI
... PETITIONER
(By Sri. M S HARAVI, ADV.)
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AND
1. THE DEPUTY SUPERINTENDENT OF POLICE,
STATE OF KARNATAKA LOKAYUKTA
HAVERI DIVISION, HAVERI
DIST:HAVERI
2. P S HEBBAL
AGE: MAJOR, FATHER NAME NOT KNOWN
OCC: ADVOCATE BY PROFESSION
R/O. NELLIBEED VILLAGE,
TQ:HANGAL, DIST: HAVERI. ... RESPONDENTS
(By SRI. JAGADISH PATIL, ADV. FOR R-1,
SRI. P.S. HEBBAL - R-2 - PARTY-IN-PERSON)
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO REVERSE AND SET ASIDE THE
ORDER DATED 26.11.2013 PASSED IN P.C.NO.2/2013 ON
THE FILE OF THE SPL. JUDGE & DIST. & SESSIONS
JUDGE, HAVERI, REFERRING THE COMPLAINT OF THE
2ND RESPONDENT TO THE 1ST RESPONDENT-POLICE
FOR INVESTIGATION AND REPORT UNDER SECTION 156(3)
OF CR.P.C. AND FURTHER BE TO QUASH THE FIR FILE BY
THE 1ST RESPONDENT-POLICE PURSUANT TO THE
ORDER OF REFERENCE MADE BY THE SPL. JUDGE,
HAVERI, IN KLPF, CR,NO.9/2013 AGAINST THIS
PETITIONER.
THESE PETITIONS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
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ORDER
For the purpose of convenience and to avoid repetition of facts and legal points, both the above said matters are taken together and common order is passed.
2. The petitioners in the above said cases challenging the orders passed by the Special Judge, Haveri in PCR No.2/2013 in referring the private complaint filed by Sri.P.S. Hebbal against the petitioners herein for the offences punishable under sections 120(a), 166, 409, 420, 465, 468, 471 read with Section 149 of IPC and Sections 8, 9, 10,11,15 read with Section 13(1)(c) and (d) of Prevention of Corruption Act, 1988. Making certain allegations against the petitioners that while discharging their duties as public servant, they have committed offences as noted above.
3. On submitting the private complaint, the Special Judge, Haveri, has passed the following order:
"The petitioner/complainant is present. He requests for referring the complaint to Lokayuktha Police. Hence, acting under 5 Section 156(3) of the Code of Criminal Procedure, the complaint is referred to Lokayuktha Police, Davanagere, for enquiry and report"
4. In Crl.P. No.11702/2013 notice was ordered to the complainant, Sri.P.S.Hebbal, who appeared in the said case. In Crl.P.No.11777/2013 also he is arrayed as respondent. The respondent is personally present before the Court and submitted that he would like to file his statement of objections and sought time to argue the case. However, the learned Counsel for the petitioners submitted that the entire case revolves round the question of law. Therefore, there is no need to file any statement of objections on factual aspects of the matter. After hearing both sides, the Court accepted the said arguments and heard the learned counsel for the petitioners herein and also the respondent Sri.P.S.Hebbar, who is present before the Court, on merits of the petitions.
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5. The learned Counsel challenged the said order of the Special Judge only on the main count that the Special Judge has no jurisdiction to entertain any complaint without there being a valid sanction accorded by the competent authority against the petitioners herein.
6. The brief facts of the case are that:
The respondent No.2 Sri. P.S. Hebbal filed a private complaint against the petitioners herein stating that the accused No.1 T.H. Gejjihalli was working as Primary School Teacher at Balambeeda, petitioner Sri. Manohar H. Tahsildar is a Sitting MLA elected from the Congress Party in the year 2013. It is alleged that the petitioner Monohar H. Tahsildar after becoming MLA by using his influence got Government Officers of his choice who would work according to his direction. In that background he got one Mr. S.R. Angadi, who was working as Literate Co-ordinator at Taluk Panchayath, Hanagal and brought the petitioner T.H. Gejjihalli to 7 that place. It is further alleged that both the petitioners by misusing their power as public servants misused the funds allotted to the Taluk Panchayath, Hanagal with the active assistance of another accused by name Arun Kulkarni. It is also stated that there are cases pending against accused No.3. It is further alleged that petitioner Gejjihalli has been collecting money from the contractors and sharing the said money with the petitioner Mr. Manohar and having misused their position as such public servants. The petitioner Mr. Manohar is also using his influence got the licence and necessary certificates in favour of 3rd accused to start illegal mining at Nellibeeda. Accused No.1 also involved himself in all the illegal activity of the accused No.2. Alleging the above said factual aspects, it is specifically stated that the petitioners working as public servants misused their office and while discharging their duty as public servants have committed the offences as noted above. 8
7. On perusal of the complaint averments, the first accused is working as literate Coordinator at Taluk Panchayat, Hangal and another petitioner Sri. Manohar H Tahashildar is a Sitting MLA. When the public servants are made as a parties and it is specifically alleged that they have committed the offences as such public servants while discharging their duties as public servants, the learned Counsel submit that the sanction to prosecute is an absolute legal requirement to enable the Court either to take cognizance or to refer the matter for investigation under Section 156 (3).
8. In this connection, the learned counsel for the petitioner relied upon a ruling of the Hon'ble Supreme Court which is reported in 2013 (6) Karnataka Law Journal page 1 (between Anil Kumar and others Vs. M.K.Aiyappa and Another, wherein the Hon'ble Supreme court at paragraph 11 of its judgement held that:
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"11. A Special Judge is deemed to be a Magistrate under Section 5(4) of the PC Act and, theref!ore, clothed with all the magisterial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options. He may take cognizance of the offence under Section 190 Cr.P.C. or proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) Cr.P.C. The Magistrate, who is empowered under Section 190 to take cognizance, alone has the power to refer a private complaint for police investigation under Section 156(3) Cr.P.C."
9. It is crystal clear from the said decision, whether at the stage of pre-cognizance stage or post- cognizance stage, the Magistrate has to apply his mind to the contents of the complaint and find out whether sanction is necessary for the purpose of proceeding against the accused.
10. In the above said case, it is clear that even for referring the matter under Section 156(3) of Cr.P.C. the sanction is absolutely necessary, when the public 10 servant is made as a party with an allegation that he has committed an offence while discharging his public duty.
11. Looking to the above said ruling of the Hon'ble Supreme Court, admittedly, the respondent who is present before the court submits that he has not obtained any sanction order from the Government. However, he strenuously contends that he has made an application to the Government for issuance of sanction order, to prosecute these two persons. However, the Government has not yet issued any sanction order. The filling of the application to the Government for issuance of sanction order is not sufficient to hold that on that ground any Court can refer the matter for investigation to the police or take cognizance of the matter, as the law requires that the complaint shall be accompanied by a valid sanction order. It is therefore condition precedent for the purpose of entertaining the complaint itself.
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12. In view of the above said factual aspects as well as the legal aspects, I do not find any strong reasons to sustain the order passed by the Special Judge and the same deserves to be quashed. Before parting with this order, it is also necessary to observe that, the order passed by the Special Judge, has passed the order impugned even without looking into the contents of the complaint and finding out whether any offence is made out against the petitioner, it appears merely on the request of the complainant, the matter appears to have been referred to the Lokayukta Police under Section 156(3) of Cr.P.C. for investigation. Such a casual order passed by the Special Judge, in my opinion is also not tenable and the same requires to be quashed on that ground also.
13. Under the above said circumstances, the following order is passed:-
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The order passed by the Special Judge in PCR No.2/2013 dated 26/11/2013 in referring the matter to Lokayukta Police, Davangere, under Section 156(3) for investigation and report without a valid sanction order is hereby quashed. Consequently, all further proceedings to be taken on the said referral order are also quashed. This order is passed only on the legal issue raised by the learned Counsel. The respondent is at liberty to prosecute the accused persons if necessary and if advised after obtaining a valid sanction from the competent authority. This order is only restricted to the legal point raised and not on merits.
Sd/-
JUDGE Vmb