Karnataka High Court
M. Arjundas vs State Of Karnataka And Ors. on 28 August, 2002
Equivalent citations: 2002CRILJ4785, 2002 CRI. L. J. 4785, 2002 AIR - KANT. H. C. R. 2871
Author: A.V. Srinivasa Reddy
Bench: A.V. Srinivasa Reddy
ORDER A.V. Srinivasa Reddy, J.
1. This writ petition is filed under Articles 226 and 227 of the Constitution of India praying for quashing of the order passed by respondent No. 3 in No. COMPT/ LOK/ BCD-127/99-2000 dated 21st May, 2001, produced as Annexure-A.
2. The petitioner is a Government Servant working as Deputy Commissioner of Excise, Kolar District. Formerly, he was working as the Addl. Deputy Commissioner of Excise, Bangalore District (Urban), Bangalore. While he was working as the Addl. Deputy Commissioner of Excise, Bangalore District (Urban), Bangalore a complaint was lodged by the fourth respondent to the Inspector General of Police attached to Lokayuktha alleging that the petitioner demanded Rs. 20.000/- by way of illegal gratification for reducing the excise duty to Rs. 44.000/- from the original levy of Rs. 91,389/-. The fourth respondent taking exception to the demand approached the Deputy Superintendent of Police, Police Wing, Karnataka Lokayuktha Police Station and lodged his complaint. On the strength of the complaint the Deputy Superintendent of Police, Lokayuktha, Bangalore City registered a case on 2-6-1999 at about 5-15 p.m. in LAC Crime No. 17/99 under Section 77 of the Prevention of Corruption Act, 1988 against the petitioner and took up investigation. After investigation a trap was set on the next day i.e., 3-6-1999 and the petitioner was trapped. A trap mahazar was drawn. After the trap, a notice was sent on 30-1-2001 to the petitioner calling upon him to show cause why departmental action should not be taken against the petitioner. Upon receipt of notice the petitioner submitted his reply on 24-2-2001 along with same enclosures and requested for dropping of the proceedings. On perusal of the reply, the Director General of Police (Lokayuktha) requested the Government to accord sanction under Section 19 of the Prevention of Corruption Act, 1988 ('P. C. Act' for short) to file a charge sheet in the court against the petitioner. This request was turned down by the Government by Government Order No. FD 110 EPS 99 dated 14-11-2000 and it was directed that an enquiry under Section 7(2A) of the Karnataka Lokayuktha Act, 1984 ('K. L. Act' for short) be held against the petitioner. After receipt of the letter dated 14-11-2000, the Lokayuktha sent a report wherein it was stated that there is a prima facie case to hold departmental enquiry under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 ('K.C.S. Rules' for short) and to impose major penalty and therefore, a request was made to the Government to permit conducting of departmental enquiry by Lokayuktha under Rule 14-A of the KCS Rules, 1957. Following this letter, the Government after examining the proposal of the Karnataka Lokayukta passed the Government Order dated 3rd July, 2001 by making over the conduct of the enquiry under Rule 11 of the K.C.S. (C.C.A.) Rules, 1957 to the Lokayukta. That enquiry is still pending before the Lokayuktha.
3. When things stood thus, the Lokayuktha has passed the impugned order (Annexure-A) under Section 14 of the Act on 21st May, 2001 in proceedings No. COMPT/ LOK/BCD127/99-2000. This order is now challenged by the petitioner oil various grounds, including the ground that the Lokayukta has no jurisdiction to make (sic) an order.
4. I have heard the learned Counsel Mr. G. S. Visweswara, Sr. Counsel for the petitioner, learned Government Pleader Smt. Suman Hegde for respondents 1 to 3 and Mr. Manikappa Patil for the Fourth Respondent.
5. It is the contention of learned Sr. Counsel Mr. G. S. Visweswara in the light of the recitals contained in Section 14 of the Act that the Lokayuktha has no jurisdiction to pass an order under Section 14 of the Act as has been now done. Without prejudice to the said submission it is also his contention that even if it were to be held that the Lokayuktha has powers to direct the prosecution of the petitioner for criminal offence, the power is available subject to the liberty provided under Section 9(3) of the Act to the public servant to rebut the complaint or allegation made against him. In the present case, according to him, as there was no complaint filed under Section 9 of the L.A. Act and no enquiry was held by the Lokayuktha in terms of Section 9(3) of the Act, an order under Section 14 could not have been passed by the Lokayuktha. He contends that even assuming for the sake of argument that the Lokayuktha has the power to make an order under Section 14 even In pursuance of an enquiry held under Section 7(2A) of the Act, still, the enquiry not having been completed yet, the order could not have been passed as it would be violative of the principles of natural justice.
6. Learned Govt. Pleader Smt. Suman Hegde appearing for respondents 1 to 3, apart from filing the statement of objections, has also produced the records seeking to sustain the impugned order passed by the Lokayuktha. It is not in dispute by the learned Counsel for respondents that no complaint has been lodged to the Lokayuktha under Section 9 of the K.L. Act. The complaint by the fourth respondent was only to the Lokayuktha police under the Code of Criminal Procedure.
7. On the other hand learned Counsel Mr. Manikappa Patil has contended that the power available to the Lokayuktha to direct the public servant to face criminal trial is not limited to cases in which a complaint has been made to the Lokayuktha and they extend even to cases which have been investigated into by the Lokayuktha under Section 7(2A) of the Act. It is his contention that the essential ingredient for making an order under Section 14 is the satisfaction to be derived by the Lokayuktha on investigation that the public servant has committed an offence having criminal consequences and once this satisfaction is arrived at by the Lokayuktha there is no impediment for him to proceed under Section 14 of the Act. According to him, it is immaterial whether the investigation is taken up by the Lokayuktha pursuant to the complaint by a complainant or in pursuance of a reference made to him by the State Government. It is his submission that the constitutional validity has been upheld by several decisions of the Apex Court and there is no justification for any one, driven to face criminal trial by an order made under Section 14, to come up before this Court under Article 226 of the Constitution of India and contend that Lokayuktha has no jurisdiction to pass such an order. His submission is that the entire thing must be looked at in the larger perspective from the point view of the object sought to be achieved by the Act. If, according to him, looked at in such light the petitioner who can always defend his cause at the trial can make no grievance about the impugned order and, therefore, his challenge to the impugned order cannot be sustained in law. On the other hand, it is the submission of learned Sr. Counsel Mr. Visweswara that it is no solace to tell the petitioner to go and face the trial when he is not, in law, bound to face it.
8. Therefore, the question that arises for my consideration in this case is :
When the competent authority permitted the Lokayuktha to proceed under Section 7(2A) of the K.L. Act, can the Lokayuktha make an order under Section 14 of the said Act initiating criminal prosecution under P.C. Act?
9. Let me now consider the rival contentions with reference to the provisions contained in the K.L. Act. Section 7 lists out the matters into which the Lokayuktha could investigate. Section 7(2) treads :
Notwithstanding anything contained in Sub-sections (1) and (2), the Lokayukta or an Upalokayukta may investigate any action taken by or with the general or specific approval of a public servant, if it is referred to him by the State Government.
The Act defines 'action' as follows :
"action" means administrative action taken by way of decision, recommendation or finding or in any other manner and includes wilful failure or omission to act and all other expressions relating to such action shall be construed accordingly.
In the present case, it is an admitted fact that the matter has been referred to Lokayuktha by the State Government under Section 7(2A) of the Act.
10. The learned Sr. Counsel Mr. Visweswara appearing for the petitioner submits that Section 14 only caters to the aftermath of an investigation into a complaint given under Section 9 and the power under Section 14 could not be exercised by the Lokayuktha in the case of a reference made to him under Sub-section (2A) of Section 7. He banks heavily on the wordings, 'if after investigation into any complaint' contained in Section 14 to emphasis that the power under Section 14 could be exercised only in respect of a complaint and not in respect of a reference made under Sub-section (2A) of Section 7 of the Act and, therefore, the impugned order directing prosecution of the petitioner is bad in law. Therefore, the decision on the question would depend entirely on interpretation of Section 14. If, on interpretation of Section 14, it could be said that the power to order prosecution also extends to the investigation conducted under Section 7(2A), then the petitioner can make no grievance about the impugned order. If, on the other hand, the court were to come to the conclusion that the power under Section 14 is available exclusively in respect of an investigation done pursuant to a complaint under Section 9 then the impugned order has to go and the criminal proceedings initiated in pursuance of the impugned order would stand vitiated.
11. The challenge in the present case being to the order passed under Section 14, it is imperative to interpret Section 14 of the Act. To facilitate its interpretation I quote Section 14 :
14. Initiation of prosecution.- If after investigation into any complaint the Lokayuktha or an UpaLokayuktha is satisfied that the public servant has committed any criminal offence and should be prosecuted in a court of law for such offence, then, he may pass an order to that effect and initiate prosecution of the public servant concerned and if prior sanction of any authority is required for such prosecution, then, notwithstanding anything contained in any law, such sanction shall be deemed to have been granted by the appropriate authority on the date of such order.
12. The Act has been promulgated to check abuse by a public servant of his position to obtain any gain or favour for himself or to cause harm or hardship to any other person and to prevent corruption, favouritism, nepotism etc.
13. As stated by me earlier an investigation by Lokayukta can begin under Section 7{2A) on reference by Government or/and under Section 9 on a complaint by any person. While Section 12 refers in general to an 'investigation of any action,' Section 14 refers in particular to an 'investigation into any complaint. Section 7(2A) empowers Lokayukta to 'investigate any action.' Section 12(3) speaks of the next course of action after 'investigation of any action' by Lokayukta. It is important to note that the Legislature has employed the phrase, 'investigate any action' in Section 7(2A) and has followed it up in Section 12(3) with the phrase, 'after investigation of any action' which means the procedure prescribed under Section 12 ought to be followed by the Lokayuktha in every investigation of any action be it on a reference under Section 7(2A) or on a complaint under Section 9. While the powers under Section 12 is available for Lokayuktha to carry out an 'investigation into any action' be it on a complaint or on reference made to him, the power provided under Section 14 to order initiation of criminal proceedings is provided exclusively in respect of an 'investigation into a complaint' as there is reference only to an 'investigation into a complaint' in Section 14 of the Act and not to 'an investigation into any action'. The emphasis in Section 14 of the Act is on complaint as the said section begins with the words, if after investigation into any complaint'. It is relevant to note here that the legislature has not thought it fit to employ the words, after investigation into any action anywhere in Section 14. If it were to be the intention of the legislature to empower Lokayuktha to also act under Section 14 in respect of 'any action' in respect of which there is no complaint to it, in addition to 'any complaint' under Section 9 of the Act, Section 14 would have certainly contained a recital to that effect. But the glaring omission in Section 14 brings out the intention of the legislature to prescribe the power to order initiation of criminal proceedings as a follow-up action pursuant to a common intention under Section 9 of the Act, only in respect of matters arising from 'investigation into any complaint' and to limit the scope of enquiry by the Lokayuktha in respect of 'investigation into any action' to the procedure provided for under Section 12 of the Act alone. A complaint in the present context would necessarily mean a complaint made under Section 9 directly to the Lokayuktha as no other provision is provided in the Act for making of any complaint. Under Rule 4 of the Karnataka Lokayuktha Rules, 1985 every complaint shall be made in Form 1, signed by the complainant and shall be supported by his affidavit in Form II duly sworn to before any Judicial Magistrate First Class, Notary Public or any Gazetted Officer duly authorised to administer oaths. It is not the case of the respondents that a complaint as prescribed under Rule 4 of the Rules has been given in the present case. So, we can safely conclude that the investigation done by the Lokayukta in the present case is not one done in pursuance of a complaint made to it under Section 9 of the Act and that it is one made in pursuance of the reference made under Section 7(2A) of the Act. I need not spend much time on this because Annexure-J itself makes specific reference to Section 7(2A) of the Act, extract the relevant portion which reads as under :
...In the background of the aforesaid circumstances stated in the Preamble, Government has approved, as required under Section 7{2A) of the Karnataka Lokayuktha Act, 1984 to conduct an enquiry against Sri M. Arjundas, Deputy Commissioner of Excise....
14. Section 14 of the Act enjoins on the Lokayuktha that he should satisfy himself of two pre-requisites before proceeding to pass an order under Section 14 of the Act. The first prerequisite is that there has to be an 'investigation into the complaint' and the second prerequisite is that he should be satisfied, 'after such investigation', that the public servant has committed a criminal offence and should be prosecuted in a court of law. Section 9(3) provides the manner in which an investigation has to be done by the Lok Ayuktha. It reads :
Where the Lokayukta or an Upalokayukta proposes, after making such preliminary inquiry as he deemed fit, to conduct any Investigation under this Act, he-
(a) shall forward a copy of the complaint to the public servant and the competent authority concerned;
(b) shall afford to such public servant an opportunity to offer his comments on such complaint:
(c) may make such order as to the safe custody of .documents relevant to the investigation, as lie deems fit.
(Emphasis by me) While Sub-sections (1) and (2) of Section 9 relate exclusively to a complaint, Sub-section (3) of Section 9 speaks of 'any investigation' under this Act which means even an investigation in respect of a matter referred to it under Section 7(2A) of the Act. Therefore, it is clear that before holding an investigation in pursuance to a complaint under Section 9 or in pursuance of a reference under Section 7(2A) of the Act, Lokayuktha should adhere to the provisions contained in Section 9 of the Act.
15. Now let me examine the impugned Annexure-A in the light of the above discussion to find out whether it could be sustained in law. Under Section 7(2A) the power is provided to Lokayuktha to 'investigate any action' referred to him by the State Government. After such reference by Government the Lokayuktha should proceed under Section 9(3) of the Act and investigate the matter. After such 'investigation into any action' if the Lokayuktha is satisfied that the allegation in respect of which the reference is made to him is substantiated, he could proceed under Sub-section (3) of Section 12 by sending a report in writing to the competent authority along with all the documents, materials and other evidence with his recommendations. It may be noted that Section 12 of the Act does not provide for imposing any punishment by the Lokayuktha and the power is limited to submission of the report with his recommendations under Section 12 of the Act to the competent authority viz., the Govt. Thus, under Section 12 the Lokayuktha only functions as an Enquiry Officer with no power to visit the delinquent public servant with any punishment. The competent authority may or may not act on the recommendations made by the Lokayuktha after receipt of the report sent by Lokayuktha under Section 12. Lokayuktha is provided only with the residual power under Sub-section (5) of Section 12 to make a report to the Governor and also inform the competent authority and the complainant about the fact of making such report to the Governor. On the other hand, in case of a complaint presented to the Lokayuktha under Section 9 with reference to an action by the public servant and which is investigated into by him in terms of sub-sees. (2) and (3) of Section 9 of the Act. Lokayuktha is vested with the power to make an order under Section 14 directing the errant public servant to face trial in a criminal court if the Lokayuktha is of the opinion that the act complained of as having been committed by the public servant has criminal implications. But, then the question arises whether the Lokayuktha could proceed under Section 14 of the Act in a matter referred to him under Section 7(2A) to Investigate any action of the public servant, if he is satisfied that the offence committed by the public servant will have criminal ramifications and direct his trial before a criminal court. The statute, in my considered opinion, does not empower the Lokayuktha to proceed under Section 14 even if he finds that the offence committed by the public servant will have criminal ramifications in a matter referred to him under Section 7(2A) of the Act. Such a course is open to him only in a case investigated by him on a complaint made to him under Section 9 of the Act by any aggrieved person. This is because the Act reserves the right to make the final order against the delinquent public servant with the competent authority in a matter referred by it to the Lokayuktha under Section 7(2A) of the Act. The Lokayuktha is however, empowered with the power to order initiation of criminal proceedings only in respect of a complaint made to him under Section 9 of the Act and the power available to the Lokayuktha under Section 14 in respect of a complaint made to him under Section 9 of the Act is not available in respect of a matter referred to him under Section 7(2A) of the Act. The deliberate use of the words, 'investigation into any complaint' in Section 14 and following it up later on by providing for the power to order initiation of criminal proceedings after investigation leave nothing to doubt that the power available under Section 14 cannot be invoked by Lokayuktha in a matter referred to him under Section 7(2A). Therefore, it is clear that Lokayuktha has ho jurisdiction to pass an order under Section 14 of the Act in a matter referred to him under Section 7(2A) of the Act even if it involves criminal implications and the only option open to him is to proceed under Section 12(3) of the Act.
16. Section 7(2A) has been inserted into the K.L. Act, 1984 by Act 31 of 1986 with effect from 16-6-1986. If really it were to be the intention of the Legislature to even to delegate the powers of imposing punishment on finding the errant public servant guilty of the charge levelled against him, I have no doubt in my mind that the legislature would have provided for it in no uncertain terms either in Section 12 or in Section 14 of the Act with specific reference to the reference under Section 7(2A). The omission to suitably amend the (sic) provisions and leaving them unaltered even after insertion of Section 7(2A) goes to show that the legislature never intended to forego its prerogative of imposing the punishment on the public servant to the Lokayuktha. Even if I were to go a step forward and resort to purposive interpretation rather than literal interpretation of the provisions having a bearing on the question in issue, keeping in view the object sought to be achieved by the Act, in my considered opinion the provisions limit the power and jurisdiction of the Lokayuktha by prescribing that he shall act only in a certain manner in certain given situations.
17. The conclusions reached by me as above are substantiated when we examine Rule 14-A of the K.C.S. Rules, 1957. When the Lokayuktha acts under Section 7(2A) of the Act he merely performs the function of the Enquiry Officer under Rule 14-A of the K.C.S. Rules, 1957. The enquiry to be conducted by the Lokayuktha consequent upon such reference should be in consonance with sub-rule (2) of Rule 14-A of the K.C.S. Rules, 1957. Sub-clause (c) of sub-rule (2) of Rule 14-A enjoins on the Lokayuktha that the enquiry to be conducted by him on such reference should be consistent with the provisions of Rule 11 of the K.C.S. Rules. Sub-clause (d) states that after enquiry, the record of the case along with the findings of the inquiring officer and the recommendation of the Lokayuktha shall be sent to the Government. Sub-clause (e) makes it obvious that in all such cases the Government shall be the Disciplinary Authority competent to impose any of the penalties listed in Rule 8 of the K.C.S. Rules, 1957. Directing prosecution of the errant public servant under the Prevention of Corruption Act, 1988 is not one of the penalties listed in Rule 8 of the K.C.S. Rules, 1957. Therefore, it can be safely held that once the matter is referred to Lokayuktha under Section 7(2A) of the Act the proceedings that are conducted by the Lokayuktha thereafter take the colour of an enquiry under Rule 11 of the K.C.S. Rules, 1957 and he would act as the authority in place of the authority prescribed in Rule 10-A of the K.C.S. Rules, 1957. Therefore, the power available to the Lokayuktha in a matter referred to him under Section 7(2A) of the Act would not exceed or go beyond the powers made available "to an authority under Rule 11 of the K.C.S. Rules, 1957. Thus, having interpreted the provisions of the Act in conjunction with Rule 14-A of the K.C.S. Rules, 1957 with the sobriety, reserve and spirit of moderation called for while interpreting punitive legislations, I am of the considered view that the power to make an order under Section 14 is vested in the Lokayuktha only in a matter investigated by him on a complaint filed to him by the aggrieved person against the action of a public servant and investigated by him under Section 9 of the Act. But, in a case referred to him under Section 7(2A) his powers are limited to that of an enquiring officer and after completion of the enquiry he can only make a report along with his recommendations under Section 12 of the Act and the power to punish is vested in the competent authority.
18. From the proceedings before the Lokayuktha it becomes clear that there was no complaint made to him under Rule 4 of the Karnataka Lokayuktha Rules, 1985. The proceedings have begun on reference from the State Government under Section 7(2A) of the Act. The Lokayuktha on receipt of the reference under Section 7(2A) has called upon the petitioner to offer his comments on the reference made to him. The petitioner has also given his reply as per Annexure-L to it and the matter is pending enquiry before the Lokayuktha. The enquiry is not yet complete and there is no order made under Section 12 of the Act. While things stood thus, the Lokayuktha has made the impugned order under Section 14 of the Act which order, in the light of the interpretation of the relevant provisions of the Act, could not have been passed as the enquiry that is pending before the Lokayuktha under Section 7{2A) is not complete and in pursuance of an enquiry held under Section 7(2A), the Lokayuktha is empowered to only make a report under Section 12(3) of the Act. The proceeding that is now pending before Lokayuktha essentially being one under Section 7(2A) and the Lokayuktha having proceeded under Section 12 of the Act, he had no jurisdiction to make the impugned order under Section 14 of the Act. Hence, the impugned order dated 21st May, 2001 passed in proceedings No. COMPT/LOK/BCD-127/99-2000 is liable to be quashed.
19. Learned counsel for respondent No. 1, Mr. Manikappa Patil relied on several decisions in support of his submissions made in the course of hearing. In Dr. K. Chowdappa v. State of Karnataka this Court held that no complaint about the tenability of a reference made under Section 7(2A) of the Act by the State Government can be entertained. This is not a case where a challenge is made regarding the reference of the State Government under Section 7(2A) of the Act. In S. Ranganarasaiah v. State of Karnataka and in C.K. Venkatasubba Rao v. B.K. Ranganath the constitutional validity of Section 14 of the Act has been upheld. In the present case, the constitutional validity of Section 14 of the Act is not under challenge. In Satya Narayan Sharma v. State of Rajasthan the Apex Court held that in cases under the Prevention of Corruption Act there can be no stay of trials. The challenge herein is to the order passed by the Lokayuktha initiating criminal prosecution against the petitioner on the ground that he had no jurisdiction to pass such order. Therefore, the decision of the Apex Court against grant of stay orders has to bearing to the facts of the ease though the trial of the petitioner may have been brought to a halt because of the stay of the order passed sanctioning the trial of the petitioner under the Prevention of Corruption Act.
20. In the result, for the reasons stated above, I allow the petition and quash the impugned order Annexure-A. Consequently, Special Case No. 125/2001 on the file of Additional City Civil and Sessions Judge at Bangalore (CCH-24) stands quashed. It is made clear that this order would not come in the way of the matter being enquired into by Lokayuktha in terms of Section 12 of the Act and Rule 14-A of the Karnataka Civil Service Rules, 1957.