Karnataka High Court
Sri K M Nataraj vs Smt Theresamma on 26 June, 2013
Author: H.S.Kempanna
Bench: H.S.Kempanna
1 ®
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 26TH DAY OF JUNE, 2013
BEFORE
THE HON'BLE MR. JUSTICE H.S.KEMPANNA
WRIT PETITION NO.41823/2012 (GM-RES)
BETWEEN:
SRI K M NATARAJ
S/O SRI G K MAHABALESWARA BHAT
AGED ABOUT 44 YEARS
ADDITIONAL ADVOCATE GENERAL
R/A NO.2116, 2ND CROSS
JUDICIAL LAYOUT
BANGALORE - 560065 ... PETITIONER
(BY SRI.B.L.ACHARYA - SR. ADV AND
SRI. MANMOHAN P N - ADV.)
AND:
1. SMT THERESAMMA
W/O LATE SRI YAGAPPA
AGED 77 YEARS
2. SRI AROGYASWAMY
S/O YAGAPPA
AGED 54 YEARS
3. SRI CHINNAPPA
S/O YAGAPPA
AGED 52 YEARS
4. SMT JAYAMMA
D/O YAGAPPA
AGED 50 YEARS
2
5. SRI MARISWAMY
S/O LATE SRI YAGAPPA
AGED 46 YEARS
6. RI CHOWRAPPA
S/O LATE YAGAPPA
AGED 45 YEARS
7. SRI ANTHONY SWAMY
S/O LATE YAGAPPA
AGED 43 YEARS
8. SRI JOSEPH
S/O LATE YAGAPPA
AGED 40 YEARS
RESPONDENTS 1 TO 8 ARE
R/A BINNAMANGALA VILLAGE,
KASABA HOBLI, DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT
BANGALORE
9. THE SUPERINTENDENT OF POLICE
KARNATAKA LOKAYUKTA
M S BUILDING
BANGALORE-1 ... RESPONDENTS
(BY SRI.GOWTHAMDEV C ULLAL - ADV. FOR R-9,
R-1 TO R-8 ARE SERVED- UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA R/W SEC.482
OF THE CODE OF CRIMINAL PROCEDURE, PARYING TO
QUASH THE ORDER DT.29.9.12, PASSED BY THE
LEARNED PRL. DIST. & SESSIONS JUDGE, BANGALORE
RURAL DIST. BANGALORE PASSED IN PCR.NO.7/12
PRODUCED AT ANN-A & ALL FURTHER PROCEEDINGS
PURSUANT THERETO IN SOFAR AS THE PETITIONER IS
CONCERNED AND ETC.,.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING :
3
ORDER
Respondents 1 to 8 in this petition have been served. They have remained unrepresented. Respondent No.9 is represented by counsel.
2. Though this petition is listed for preliminary hearing with consent of the learned counsel for the parties, it is taken up for final disposal.
3. The petitioner in this petition has sought for quashing the order dated 29.9.2012 passed in PCR No.7/2012 by the District and Sessions Judge/Special Judge, Bangalore Rural District, Bangalore, all further proceedings initiated pursuant to the said order and also the private complaint filed by respondents 1 to 8 which are at Annexures 'A' and 'B' respectively.
4. The brief facts of the case are :-
Respondents 1 to 8 herein filed a private complaint against this petitioner and 14 others u/s.200 of Cr.P.C. r/w. Section 7 of the Karnataka Lokayuktha 4 Act 1984 alleging that they have committed the offences punishable under Sections 7 to 13 and 15 of the Prevention of Corruption Act, 1988. The petitioner is arrayed as A6 in the said complaint.
5. It is the case of the complainants that they are all farmers in Binnamangala Village of Devanahalli Taluk, Bangalore Rural Dist. They are cultivating their common lands measuring 11 acres 10 guntas comprised in S.Nos.23,24,25,29,30,34, 35 and 41 of the said village. Their common ancestor one late Yagappa s/o.Chinnappa had purchased the above lands under 3 sale deeds dated 16.5.1991. Revenue records had been mutated in his name as per the proceedings of the Tahsildar in M.R.Nos.8/91-92, 9/91-92 and 10/91-92. It is their case that the lands purchased by the complainants' ancestor was part of total land measuring 152 acres 27 guntas situated in Binnamangala village which was initially regranted in favour of one Bali Reddy and Sri.Adinarayana Reddy on 6.1.1961. These original regrantees disposed of the said lands immediately after 5 the re-grant. The complainants' ancestor is the third purchaser in title of his part of the lands situated in Binnamangala village. It is their further case that A8 and A9 with the common intention of knocking off their property and other extent of land measuring 152 acres 27 guntas including the complainants property measuring 11 acres 10 guntas, prepared frivolous and collusive documents including the land exchange agreement dated 3.3.1993 and produced the same in O.S.NO.1785/2005 before the Senior Civil Judge, Devanahalli, Bangalore rural district and they also preferred an appeal before the Asst. Commissioner in R.A.NO.62/2006 challenging the mutation entries in respect of the lands purchased by their common ancestor. The said appeal came to be allowed. Aggrieved by the said order they preferred revision petition before the Deputy Commissioner which also came to be dismissed confirming the order of the Asst. commissioner. Thereafter, they filed writ petition in W.P.NO.5612/2010 challenging the orders of the Asst. 6 Commissioner and the Deputy Commissioner. The learned Single Judge of this Court after satisfying about the serious illegalities and offences committed by A1 to A5 and by making serious observations allowed the writ petition by order dated 23.2.2011. It was further pointed out in the writ petition that there is a need to hold impartial and independent enquiry regarding the manner of functioning of the revenue officials, who are definitely guided by irrelevant considerations by misusing and abusing statutory powers and by abusing their position as public servant to obtain gain/favour to A8 and A9 and also to cause undue harm and hardship to complainants. Accordingly issued directions to investigate into the matter by Lokayuktha.
6. It is further the case of the complainants that A7 had appeared for A8 and A9 in the revenue proceedings and also in the writ petition filed by them. The said A7 initially was working as a clerk in the office of the petitioner and later after enrolling himself as an advocate started practicing with the petitioner in his 7 office run under the name and style Dharshree Associates. A8 and A9 have not taken steps to challenge the order of the learned Single Judge by preferring an appeal. However, A8 and A9 along with A7 by misusing the office of the Addl. Advocate General got filed W.A.4727/2011 challenging the correctness and legality of the order passed by the learned Single Judge through A1 to A3 hoping by obtaining a stay order in the appeal, the mutation entries can be illegally transferred in the name of either A8 or A9 and the property can be easily encumbered. That criminal motive can further be elicited in an illegal order made by A3 dated 30.7.2010 after the disposal of the writ petition and during the pendency of the writ appeal directing to mutate the entries in the name of A9 despite there being no interim order of stay in the writ appeal. Shockingly A6 himself appeared for the State and A7 appeared for A9. The Division Bench of the High Court headed by the Chief Justice was pleased to confirm almost the entire order of the learned Single Judge, but 8 only made certain clarifications to the effect that the observations and directions issued by the learned Single Judge to be treated as recommendation to the Government as per Section 7 of the Lokayuktha Act. Therefore it is alleged among other things in the complaint that this petitioner had appeared in his capacity as Addl. Advocate General and had argued the matter solely with an intention to knock off the land belonging to the complainant and also the Government to enrich themselves. Thereby the accused have acted against the interest of the complainant and the State in grabbing the Government land and the land owned by the complainant. Accordingly they prayed the Hon'ble Court to take cognisance of the offences alleged against the accused under the Prevention of Corruption Act or under any other provisions of law, try and punish them in accordance with law.
7. The learned Special Judge on presentation of the complaint passed the impugned order referring the complaint u/s.156 (3) of Cr.P.C. to the Superintendent 9 of Police - Lokayuktha, Bangalore Rural District for investigation and report by 30.11.2012. It is the said order of the learned Special Judge, all further proceedings initiated pursuant to the said order and the complaint filed by respondents 1 to 8 herein is sought to be quashed in this petition filed under Articles 226 and 227 of the Constitution of India r/w.Section 482 of Cr.P.C.
8. It is the case of the petitioner he was working as Addl. Advocate General at the relevant point of time. He has represented the State and its officials in the writ appeal in his capacity as an officer of the Government/Addl. Advocate General. According to him he has discharged his duty as a counsel and has not indulged in any act which is either against the interest of the State or any individuals. The Special Judge has referred the complaint for investigation u/s.156(3) of Cr.P.C. without application of mind to the facts of the case. The allegations in the complaint do not make out a prima facie case against him. There is nothing to 10 indicate that he had appeared for A8 or A9 either in the revenue proceedings or in the writ petition before this Court. A false complaint has been filed at the behest of persons who have vested interest to mar his reputation. The complaint has been filed without obtaining proper sanction issued from the competent authority. Therefore, the order referring the complaint for investigation u/s.156(3) of Cr.P.C., any action initiated pursuant to the said order and the complaint filed against him be quashed.
9. Sri.B.V.Acharya, learned Senior counsel appearing for the petitioner contended the order of the learned Special Judge referring the complaint for investigation u/s.156(3) of Cr.P.C. is a mechanical order passed without application of his mind. In this connection he contended the allegations in the complaint do not prima facie disclose the petitioner having any hand in the commission of the offences as alleged much less any cognizable offence. According to him the petitioner in his capacity as an Additional 11 Advocate General has appeared for the State in the writ appeal. There is nothing on record to show that he had appeared for the parties either in the revenue proceedings or in the writ petition before the learned Single Judge. The subject matter impugned in the writ appeal was in respect of a direction issued by the learned Single Judge in para 11 of his order, which has no nexus of whatsoever with the allegations made in the complaint.
10. The Division Bench of this Court in its order observed that such a direction which had been issued in para 11 of the order of the learned Single Judge could not have been issued as it is the prerogative of the State u/s.7(2-A) of the Lokayuktha Act. However, they have also made an observation that such direction can be issued under Article 226 of the Constitution to the State Government which in turn would refer the matter to the Lokayuktha, in which case Lokayuktha would investigate into the matter. With that clarification the writ appeal came to be allowed. It is to that extent the 12 petitioner had argued in the writ appeal. That does not indicate that he had any hand with the other accused in committing offences as alleged. He also submitted that the writ appeal had been preferred pursuant to the order passed by the Government which is at Annexure- C. In that view of the matter by no stretch of imagination it can be said this petitioner in connivance with the other accused has got the writ appeal filed by misusing his official position. He has only discharged his duty as an officer of the court. Therefore, it cannot be imputed to him that he had a criminal bent of mind to knock off the property hand-in-glove with the other accused. He also contended the allegations in the complaint as against this petitioner is, A7 who was his junior had appeared for A8 & A9 and therefore, the petitioner has connived with the other accused in preferring the writ appeal and argued the matter on behalf of the State. In this connection he submitted merely because A7 was his junior at one point of time, it is too far-fetched to imagine the petitioner in his 13 capacity as an Addl. Advocate General would have indulged in the acts as alleged by the complainants. He further submitted though the order in the writ appeal came to be passed on 10.8.2011, the complainants have filed this complaint before the Special Judge on 1.10.2012 nearly about a year after the order came to be passed in the writ appeal. That would indicate that the complaint has been filed with a malafide intention at the behest of the persons who have vested interest. He further contended by virtue of the office of the petitioner, he being a public servant, the complaints ought to have preferred the complaint by obtaining proper sanction from the competent authority which has not been done in the case. Therefore, the impugned order referring the complaint for investigation u/s.156(3), action initiated on the basis of the said order and the complaint filed by the complainants deserves to be quashed. In support of his submissions he relied on the following decisions :-
14
1. Asmathunnisa - vs - State of A.P reported in AIR 2011 (SC) 1905;
2) Central Bureau of Investigation, Hyderabad - vs - K.Narayana Rao reported in 2012 (9) SCC 512;
3) Gurudatt Prabhu and others - vs - M.S.Krishna Bhat and others reported in 1999 CRL.L.J.3909 (Karnataka High Court).
4) P.R.Venugopal - vs - S.M.Krishna, Chief Minister of Karnataka and others reported in 2003(6) Kar.L.J.507.
11. The original complainants who are respondents 1 to 8 in this petition though served neither have appeared in person nor through their counsel.
12. The learned counsel appearing for Respondent No.9 submits that after the complaint was referred for investigation u/s.156(3), respondent No.9 registered case in Crime No.17/12 and took up investigation, but 15 in view of the stay granted by this court in this petition, no further action has been taken thereafter.
13. Before dwelling on the merits of the case it will be useful to recall the broad principles of law laid down by the Apex Court on the scope and Ambit of the High Court power under Section 482 of the Code of Criminal Procedure. It has been laid down that inherent power u/S. 482 of Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such an exercise is justified by the test specifically laid down in the Section itself authority of the Court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the Court, the Court would be justified in preventing injustice by invoking inherent powers in the absence of specific provisions in the statute.
14. The Law has been crystallized more than half a century ago in the case of R.P. Kapur Vs. State of Punjab (AIR 1960 SC 866) where the Court has made 16 some categories of cases where inherent power can and should be exercised to quash the proceedings. In the said decision the following three broad categories where the High Court would be justified in exercise of its power u/S 482 are:-
(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings; (ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."
---
15. Nextly the Apex Court in Smt. Nagawwa V. Veeranna Shivalingappa Koujalgi and Others (1976) 3 SCC 736, has held, the process against the accused can be quashed or set aside under the following circumstances:
(1) where the allegations made in the complaint or the statements of the witnesses recorded in support 17 of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like".
---
16. Nextly the Apex Court in State of Haryana and Others Vs. Bhajan Lal and Others reported in (1992) Suppl. 1 SCC p. 335, has laid down the following rule:
"The sum and substance of the above deliberation results in a conclusion that the investigation of an offence is the field exclusively reserved for the 18 police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how the investigation is to be conducted. But if a Police Officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution".
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19In the aforesaid case the Apex Court has held:-
"in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure under Chapter XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 Cr.P.C., gave the following categories of cases by way of illustration wherein such powers could be exercised either to provent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or right formule and to give an exhaustive list to myriad kinds of cases wehrein such power should be exercised :
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.20
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.
3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient grounds for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned 21 Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge
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In addition to the law laid down by the Apex Court this Court in the case of Guruduth Prabhu and Others V. M.S. Krishna Bhat and others (1999 CRI.L.J. 3909) has held as under:
"Criminal P.C. (2 of 1974), Ss. 156(3), 482- Investigation-Powers of Magistrate-Complaint for offence under S. 167. Penal Code-Averments in complaint cryptic and not disclosing alleged offence-Order of Magistrate closing alleged offence- Order of Magistrate directing investigation under S.156(3) without applying his mind to allegations made in complaint - is without jurisdiction - High 22 Court either under S. 482 or under Art. 226 of the Constitution empowered to quash investigation.
Constitution of India. Art. 226.
If every complaint filed under Section 200 Cr.P.C. is referred to the Police under Section 156(3) without application of mind about the disclosure of an offence, there is every likelihood of unscrupulous complaints in order to harass the alleged accused named by them in their complaints making bald allegations just to see that the alleged accused are harassed by the police who have no other go except to investigate as ordered by the Magistrate. Therefore, it is mandatory for the Magistrate to apply his mind to the allegations made in the complaint and in only cases which disclose an offence, the Magistrate gets jurisdiction to order an investigation by the Police if he does not take cognizance of the offence. When the allegations made in the complaint does not disclose cognizable offence, the Magistrate has no jurisdiction to order police investigation under sub-section (3)."
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Further this Court in the case of P.R.Venugopal - vs - S.M.Krishna, Chief Minister of Karnataka and others reported in 2003(6) Kar.L.J.507 has also taken 23 the view that to make a reference to the police for investigation, the Magistrate has to apply its mind as to whether the allegations in the complaint are sufficient to make such order for investigation u/s.156(3) of Cr.P.C.
17. Bearing in mind the principles laid down in the aforementioned cases it is to be seen whether the impugned order of the learned Special Judge referring the complaint for investigation under Section 156 (3), all further steps taken pursuant to the said order and the complaint filed by the respondent nos.1 to 8 deserves to be quashed.
18. The material on record reveals that there were revenue proceedings pending between the complainant on the one hand and accused no. 8 and 9 on the other hand. The said revenue proceedings ended in favour of accused nos.8 and 9 in the appeal preferred before the Assistant Commissioner which came to be confirmed by the Deputy Commissioner in revision petition preferred 24 by the complainants. As against the said order the complainants preferred writ petition before this Court in W.P. No.5612/2010.
19. This Court in the said writ petition quashed the orders of the Assistant Commissioner and the Deputy Commissioner by issuing a writ of certiorari and directed the revenue authorities to change or effect any entry in the revenue records only in consonance with the determination made by the Civil Court in a properly instituted suit at the instance of one or the other party in favour of a party who is positively successful before the Civil Court. Further, at para no. 11 of the order it issued the following directions:
"11... Having regard to the manner of functioning, i.e., arbitrary manner of functioning of the 2nd respondent-Assistant Commissioner, it is necessary to direct the scrutiny of conduct of this official looked into by an independent agency of the Government and with the State Government officials not inspiring the confidence of this Court for holding an impartial enquiry and having regard to the manner of functioning of the officials belonging 25 to the revenue department, I deem it proper to refer this matter for a proper enquiry by the Karnataka Lokayuktha to examine the manner of functioning and performance of persons like the Assistant Commissioner who has passed the order at Annexure-Q and for such purpose the Registrar (General) of this Court is directed to forward a copy of this order along with the writ petition papers to the Karnataka Lokayuktha and with a further direction to the Karnataka Lokayuktha to cause a proper enquiry into the circumstances, under which the impugned order at Annexure-Q had come to be passed and if anything is found remiss, misconduct or any other malpractice to take action in accordance with law insofar as the conduct and integrity on the part of the 2nd respondent is concerned."
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20. The State being aggrieved by that portion of the order of the learned single Judge passed in para no. 11 preferred W.A. No.4727/2011 before this Court. The said appeal came to be preferred by the State by virtue of the Government Order dated 08.06.2011 issued by the Government authorizing the Government Advocate 26 to prefer the appeal which is at Annexure-'C'. After the said writ appeal came to be filed the petitioner who was the then Additional Advocate General appeared on behalf of the State and argued the appeal. In the said writ appeal this Court observed:
"Ordinarily reference for investigation to the Lokayuktha ought to be made only by the State Government. In exceptional circumstances, it may be open to a High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, to issue a direction similar to the one issued in this case. However, Courts would be well advised to make their recommendations for such investigation (at the hands of the Karnataka Lokayuktha) through the State Government, which inturn will refer the matter for investigation. Ordinarily, a recommendation made by this Court for investigation would be binding on the State Government, unless exceptional circumstances are available, which ought to be recorded in writing for not referring the matter for investigation to the Karnataka Lokayuktha."
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27Accordingly, it allowed the said writ appeal with the aforesaid clarification.
21. It is the case of the complainants that this petitioner appeared in the writ appeal and argued on behalf of the State hand-in-glove with the other accused with the sole intention to knock off the property belonging to them. Therefore, he has committed the offences alleged.
22. It is not in dispute that the petitioner was the Additional Advocate General at the time the writ appeal was filed, heard and disposed-off by the Division Bench of this Court. Petitioner having appeared for the State in the said writ appeal and having argued the matter is also not disputed. The allegations in the complaint is, accused No.7, an Advocate who was the junior of this petitioner had appeared for accused nos.8 and 9 in the revenue proceedings and the writ petition. Therefore, according to them the accused hand-in-glove with the petitioner have got preferred the writ appeal with the 28 sole intention of knocking of their land and the land belonging to the Government. There is nothing on record to indicate that this petitioner had appeared for either of the parties in the revenue proceedings that were pending between the complainant on the one hand and accused Nos.8 and 9 on the other hand. He has also not appeared for any of the parties in the writ petition before this Court even at which time he was Additional Advocate General. Therefore, the allegations that accused No.7 was his junior and as accused No.7 had appeared for accused Nos.8 and 9 in the revenue proceedings and in the writ petition before this Court the petitioner has connived with the accused to knock of the properties, is too farfetched and in my view by no stretch of imagination it can be accepted as no material is placed on record to indicate that A.7 was the junior of this petitioner at the relevant point of time. The role of this petitioner is only that he has represented the State in the writ appeal. He has discharged his duties as an official of the Government. What was challenged in the 29 writ appeal is only the observations made by the learned Single Judge at para no. 11 of his order. That direction of the learned Single Judge has been clarified by the Division Bench of this Court stating that this Court has no power to give such a direction by virtue of Section 7(2)(a) of the Karnataka Lokayuktha Act, 1984. On the other hand, ordinarily reference for investigation to the Lokayuktha ought to be made only by the State Government. It is also further observed in the said order in exceptional circumstances it may be open to the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India to issue a direction similar to the one issued in this case. However, Courts would be well advised to make their recommendations for such investigation (at the hands of Karnataka Lokayuktha) through the State Government, which in turn will refer the matter for investigation. Ordinarily a recommendation made by this Court for investigation would be binding on the State Government, unless exceptional circumstances are 30 available, which ought to be recorded in writing for not referring the matter for investigation to the Karnataka Lokayuktha.
23. In view of the above clarifications issued by the Division Bench of this Court in the writ appeal it would be too far-fetched to impute to this petitioner that he had connived with the other accused to knock off the property belonging to the complainants and the Government as alleged by them. If the allegations of the nature made in the complaint against the petitioner are to be accepted, then it would be unsafe for any legal practitioner to appear for the parties either in civil or criminal cases. An Advocate being a professional man is expected only to discharge his duties true to his conscious on behalf of his client in accordance with law and nothing more. In this case there is nothing on record to show the petitioner has any nexus with any of the accused except appearing for the State in the writ appeal. Therefore, as observed earlier it is too farfetched and unthinkable that this petitioner hand-in- 31 glove with the other accused has any hand in knocking of the property as alleged by the complainants.
24. Nextly, it is to be seen whether the learned Special Judge before passing the order of referring the complaint for investigation u/S 156(3) of Cr.P.C. has applied his judicial mind to the allegations made in the complaint to make such order for investigation u/s.156(3) of Cr.P.C. The impugned order has been produced at Annexure-A. A perusal of the same goes to show it is a mechanical order passed by the learned Special Judge referring the complaint filed by the respondent Nos.1 to 8 u/S 156(3) of Cr.P.C. to the S.P. Lokayuktha, Bangalore rural district for investigation and report by 30.11.2012.
25. The Apex Court and this court in the aforementioned decisions adverted to above have laid down that before referring the complaint for investigation it is incumbent upon the learned Special Judge/Magistrate as the case may be, to look into the 32 allegations made in the complaint, apply his mind to the allegations made in the complaint and in only cases which discloses a cognizable offence the Magistrate/ Special Judge gets the jurisdiction to order an investigation by the Police if he does not take cognizance of the offence. When the allegations made in the complaint does not disclose cognizable offence, the Court that is either the Special Judge or the Magistrate has no jurisdiction to order Police investigation under Sub-Section (3).
26. In this case a perusal of the complaint filed by respondent nos.1 and 8 which is produced at Annexure- B does not disclose any prima facie case as against this petitioner. There is no allegation indicating that this petitioner had any role in respect of the mutation entries made in the revenue records as against which the complainants on the one hand and A8 and A9 on the other hand were agitating before the appropriate forum. The allegations are bald and cryptic. Admittedly he has not appeared for the parties either in the revenue 33 proceedings or in the writ petition before this court. Merely, because he had appeared in the writ appeal on behalf of the State and had argued, it cannot be imputed to him that he has committed the offence as alleged in the complaint. The entire allegations in the complaint does not disclose commission of any cognizable offence insofar as this petitioner is concerned. In that view of the matter the impugned order of the learned Special Judge referring the complaint for investigation u/s 156(3) of Cr.P.C. cannot be sustained.
27. One more aspect which emerges from the material on record is, the complaint has been filed with a malafide intention to mar the reputation of the petitioner at the behest of persons who have vested interest. The order in the writ appeal came to be passed on 10.08.2011 and the complaint has come to be filed on 01.10.2012, more than year after the order came to be passed. If according to the complainants this petitioner has connived with the other accused in knocking - off the lands belonging to them and the 34 Government as alleged, they should have filed the complaint immediately after the order came to be passed in the writ appeal. As already pointed out the complaint has been filed more than an year after the order was passed in the writ appeal. This goes to show that the complaint has been filed with malafide intention to harass the petitioner at the behest of vested persons for the reasons best known to them. This is fortified form their conduct in not appearing in this case though they are served. From this angle also, the complaint does not deserve any merit.
28. Apart from the above there is yet another legal lacuna in the case. Admittedly the petitioner at the relevant point of time was Additional Advocate General. By virtue of his office he is a public servant. Therefore, the complainants before filing the complaint ought to have obtained necessary pre-requisite sanction for filing a complaint which is also not done in this case. 35
29. That requirement of pre-requisite sanction is only to ensure that the public servants discharging their official duties are not harassed by filing frivolous complaint. My view on this aspect is fortified from the principles laid down by the Apex Court in the case of Subramanian Swamy - vs - Manmohan Singh reported in 2012(3) SCC 64 and also of this Court rendered in W.P.NO.14047/2012 (GM-RES).
Therefore, in my view as the allegations in the complaint do not make out any prima facie case much less a cognizable offence, as the order of the learned Special Judge is a mechanical order passed without due application of mind and as the complaint has been filed without obtaining necessary sanction, no action more particularly criminal action could have been initiated against the petitioner. Therefore, the order at Annexure- A dated 29.09.2012, all further action initiated pursuant to the said order by respondent no.9 and the complaint filed by respondent nos.1 and 8 deserves to be quashed in so far as this petitioner is concerned. 36
30. Accordingly, I proceed to pass the following :-
ORDER
i) The Writ Petition is allowed;
ii) The order dated 29.9.2012 which is at Annexure-
A, all further proceedings initiated pursuant to the said order and the complaint filed by the respondents/ complainants 1 to 8 which is at Annexure-B are quashed.
Sd/-
JUDGE rs