Karnataka High Court
Mr. G Jagadeesha vs State Of Karnataka on 1 December, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
CRL.P. No.3868 OF 2020
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO.3868 OF 2020
BETWEEN:
MR. G. JAGADEESHA
S/O MR. GANAPATHIYAPPA
AGED 45 YEARS
FORMER CHIEF EXECUTIVE OFFICER
ZILLA PANCHAYATH
KOLAR.
AND PRESENTLY WORKING AS
DEPUTY COMMISSIONER
UDUPI DISTRICT
UDUPI-576101 ... PETITIONER
(BY SRI.I.S. PRAMOD CHANDRA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ANTI CORRUPTION BUREAU
KOLAR
REPRESENTED BY THE
SPECIAL PUBLIC PROSECUTOR
OFFICE OF THE DIRECTOR GENERAL
OF POLICE (ACB)
ANTI CORRUPTION BUREAU
KHANIJA BHAVAN
BANGALORE-560001
2. MR. G. NARAYANA SWAMY
S/O MR. SRIRAMA
AGED 53 YEARS
RESIDENT OF MASTI BADAVANE
NEAR SHANKAR VIDYALAYA
KOLAR TOWN-563132 ... RESPONDENTS
(BY SRI. MANMOHAN P.N, ADVOCATE FOR
MANMOHNA P.N. ASSOCIATES FOR R1;
SRI. SHANKARAPPA, ADVOCATE FOR R2)
CRL.P. No.3868 OF 2020
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.PC., PRAYING TO SET ASIDE THE ORDER DATED
19.06.2020 PASSED BY THE LEARNED PRINCIPAL DISTRICT AND
SESSIONS JUDGE, AT KOLAR IN P.C.R.NO.3/2020 REFERRING
THE PRIVATE COMPLAINT FILED BY THE RESPONDENT NO.2 FOR
INVESTIGATION U/S 156 (3) CR.P.C. AND ETC.
*****
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
AND HAVING BEEN RESERVED FOR ORDERS ON 17.11.2020,
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking to set-
aside the order dated 19.06.2020 passed by the Prl. District and Sessions Judge, Kolar in PCR No.3/2020 referring the private complaint filed by 2nd respondent for investigation under Section 156(3) of Cr.P.C. and to quash the complaint in PCR No.3/2020, as also FIR in Crime No.5/2020 registered for the offences punishable under Section 13(1) and (2) of the Prevention of Corruption Act ('P.C. Act' for short) and Section 465, 467, 468 and 471 of IPC.
2. A private complaint came to be filed by 2nd respondent in PCR No.3/2020 alleging that on CRL.P. No.3868 OF 2020 3 24.08.2019 he has seen the photo and read the news about the farewell function arranged by Accused Nos.2 to 11 and others in order to give illegal gratification to accused No.1 who is the petitioner herein.
3. It is alleged that accused No.1 being the then Chief Executive Officer at Kolar Zilla Panchayat from 15.9.2018 to 20.8.2019 being an IAS officer had taken illegal gratification from accused Nos.2 to 11 during the said send of/farewell function being a silver mace, silver crown and gold rings.
4. It is alleged that during the period that the accused No.1 was CEO at Kolar from 15.9.2018 to 20.8.2019, he had protected accused No.2 to 11 in their illegal activities as regards which there were several complaints which had been filed, FIRs registered and investigation undertaken and thus to express the gratitude and to share the amounts received by them they had gifted the CRL.P. No.3868 OF 2020 4 above items to accused No.1 during the said send of.
5. On filing of the complaint, the Magistrate referred the matter to investigation to the ACB police vide his order dated 19.6.2020. Aggrieved by the same, the petitioner is before this court seeking the above relief.
6. Sri.I.S.Pramod Chandra, learned counsel for the petitioner would submit that the above proceedings are vitiated inasmuch as:
6.1. The procedure prescribed by the Hon'ble Apex Court in Mrs.Priyanka Srivastava -
v- State of U.P. [AIR 2015 SC 1758] has not been followed inasmuch as there is no complaint lodged with the jurisdictional police or on the failure of jurisdictional police to take action no complaint has been filed with the Superintendent of police, no affidavit has been filed by the complainant CRL.P. No.3868 OF 2020 5 along with the PCR and as such, the Magistrate should have noticed these factors and not referred the matter for investigation under Section 156(3) of the Act;
6.2. That the entire proceedings vitiated inasmuch as there is no prior sanction obtained under Section 19 of the P.C.Act since the offences which have been alleged against the accused are with regard to corruption.
7. Per contra Sri.Shankarappa, learned counsel for 2nd respondent submits that:
7.1. there is no sanction which is required insofar as the petitioner is concerned since the gratification which has been accepted by the petitioner was as regards action taken by him when discharging his duties as CEO of Zilla Panchayat at Kolar whereas CRL.P. No.3868 OF 2020 6 when action was sought to be initiated he was functioning as Deputy Commissioner of Udupi.
7.2. In this regard he relies upon the decision of L.Narayanasway -vs- State of Karnataka reported in [2016]9 SCC 598 more particularly para 18 and 23 thereof which are reproduced hereunder for easy reference:
"18. The aforesaid judgments referred to by the appellants state the general proposition of law and purpose behind Section 19 of the P.C. Act. On the other hand, the question that needs to be answered is concerned, we find that it had same very question came up for consideration in Abhay Singh Chautala v. Central Bureau of Investigation[5]. In that case, the appellants were MLAs when charges under the P.C. Act were framed against them. However the charges pertained to wrongdoing committed during earlier periods of time during which they had also been MLAs or MPs. The charges did not pertain to their current tenure as MLAs during which the charges were framed and trial initiated. On the date when charges were framed no sanction under Section 19, P.C. Act was obtained. An objection regarding the absence of sanction was raised before the Special Judge, who in the common order held that the charge-sheet did not contain the allegation that the appellants had abused their current office as MLAs and, therefore, no sanction was necessary. The High Court by the impugned order under Section 482 Cr.P.C. did not interfere CRL.P. No.3868 OF 2020 7 with the said prosecution. This Court put its imprimatur to the aforesaid view of the High Court thereby dismissing the appeals. After discussing catena of judgments, it was held that even when the appellants in that case held more than one offices during the check period which they are alleged to have abused; however, there will be no requirement of sanction if on the date when the cognizance is taken, they are not continuing to hold that very office. It was held that the relevant time is the date on which the cognizance is taken. If on that date, the appellant was not a public servant, there was no question of any sanction. It was also held that even if he continues to be a public servant but in a different capacity or is holding a different office than the one which is alleged to have been abused, still there would be no question of sanction. This can be found from the reading of paragraphs 54 and 56 of the judgment which we reproduce below:
"54. The learned Senior Counsel tried to support their argument on the basis of the theory of "legal fiction". We do not see as to how the theory of "legal fiction" can work in this case. It may be that the appellants in this case held more than one offices during the check period which they are alleged to have abused; however, there will be no question of any doubt if on the date when the cognizance is taken, they are not continuing to hold that very office. The relevant time, as held in S.A. Venkataraman v. State [AIR 1958 SC 107 : 1958 Cri LJ 254], is the date on which the cognizance is taken. If on that date, the appellant is not a public servant, there will be no question of any sanction. If he continues to be a public servant but in a different capacity or holding a different office than the one which is alleged to have been abused, still there will be no question of sanction and in that case, there will also be no question of any doubt arising because the doubt can arise only when the sanction is necessary. In case of the present appellants, there was no question of there being any doubt because basically there was no question of the appellants' getting any protection by a sanction.
CRL.P. No.3868 OF 2020 8 xx xx xx
56. Thus, we are of the clear view that the High Court was absolutely right in relying on the decision in Prakash Singh Badal v. State of Punjab to hold that the appellants in both the appeals had abused entirely different office or offices than the one which they were holding on the date on which cognizance was taken and, therefore, there was no necessity of sanction under Section 19 of the Act as held in K. Karunakaran v. State of Kerala and the later decision in Prakash Singh Badal v. State of Punjab. The appeals are without any merit and are dismissed.
23. In the case of the present appellants, there was no question of the appellants' getting any protection by a sanction. The High Court was absolutely right in relying on the decision in Prakash Singh Badal to hold that the appellants in both the appeals had abused entirely different office or offices than the one which they were holding on the date on which cognizance was taken and, therefore, there was no necessity of sanction under Section 19, P.C. Act. Where the public servant had abused the office which he held in the check period but had ceased to hold "that office" or was holding a different office, then a sanction would not be necessary. Where the alleged misconduct is in some different capacity than the one which is held at the time of taking cognizance, there will be no necessity to take the sanction.
7.3. Learned counsel further submits that the requirement of the dicta laid down in Priyanka Srivastava's case (supra) has also been followed. 2nd respondent-
CRL.P. No.3868 OF 2020 9 complainant had lodged a complaint with the Addl. Director General of Police, Bangalore who had referred it to Addl.
Director General of Police, ACB. Thus he submits that it is in compliance with the dicta laid down by the Apex Court in Priyanka Srivastava's case (supra).
7.4. that along with the complaint an affidavit has been filed by the complainant which would indicate that steps taken by him in approaching the Addl. Director General of Police and thereafter ACB, Kolar, which is in compliance of the dicta laid down by the Hon'ble Apex Court in Priyanka Srivastava's case (supra).
8. Heard Sri.I.S.Pramod Chandra, learned counsel for the petitioners, Sri.Manmohan.P.N, learned counsel for respondent No.1 and Sri.Shankarappa, CRL.P. No.3868 OF 2020 10 learned counsel for respondent No.2. Perused papers.
9. Having heard the learned counsel for the parties, the points that would arise for determination of this court are:
9.1. Whether the requirements of the dicta laid down in Priyanka Srivastava's case (supra) is applicable to the private complaint filed regarding corruption?
9.2. Whether any sanction is required to be obtained to initiate action against a person who is a public servant when he is no longer functioning in the capacity where an illegal gratification obtained by him? 9.3. What order?
10. ANSWER TO POINT No.1: Whether the requirements of the dicta laid down in CRL.P. No.3868 OF 2020 11 Priyanka Srivastava's case (supra) is applicable to the private complaint filed regarding corruption?
10.1. The procedure which had been laid down in Priyanka Srivastava's case (supra) is to protect private citizens from being unnecessarily harassed by another private citizen on account of a private complaint being filed without having approached the jurisdictional police, it is in that background that the Hon'ble Apex Court has held that before approaching the magistrate by filing a PCR under section 200 of Cr.P.C, the complainant is required to approach the jurisdictional Magistrate with a request to register the FIR, only in the event of jurisdictional police not registering the complainant as requested, then the complainant could approach the Superintendent of police seeking for necessary action. In the event the CRL.P. No.3868 OF 2020 12 Superintendent of police not taking any action, the complainant could approach the jurisdictional magistrate under Section 200 of Cr.P.C. The flow of events and sequence of events is to protect a private citizen from unnecessary harassment. 10.2. In the present case, what is to be seen is that the complaint which is filed against the petitioner though by a private complaint is as regards the allegation of corruption for receipt of illegal gratification by the petitioner from certain officers of Kolar who the petitioner is stated to have protected and/or encouraged when he was the CEO of Zilla Panchayat of Kolar.
10.3. A private citizen cannot file a complaint with jurisdictional police as regards the said offence. The jurisdictional police can also not entertain or investigate into the matter CRL.P. No.3868 OF 2020 13 relating to corruption on the basis of the private complaint filed by a person. It is only the concerned authority viz., the authority prescribed under the Prevention of Corruption Act or the Delhi establishment Act, who could investigate into the matter. 10.4. In the present case, the complainant as stated in the private complaint at para 11 thereof had approached the Director General of Police (Anti Corruption Bureau), Bangalore about the illegal activities of the accused.
10.5. The Addl. DGP had directed the complainant to the Anti Corruption Bureau for proper enquiry and report. It is on account of no proper action taken by the ACB, Kolar that the petitioner had approached the magistrate with a private complaint.
CRL.P. No.3868 OF 2020 14 10.6. Thus, the petitioner has approached the concerned police i.e. ACB requesting action to be taken insofar as the petitioner and other accused are concerned. However, the ACB had not taken any action. It is in this background the 2nd respondent left with no option had to approach the magistrate with a private complaint. It therefore cannot be said that the requirement by a private complaint has not been followed. Be that as it may, as referred to and stated above, the requirement laid down by the Hon'ble Apex Court in Priyanka Srivastava's case (supra) is as regards a private complainant filing a private complaint against a private individual for offences which the said private individual is stated to CRL.P. No.3868 OF 2020 15 have committed against a private individual.
10.7. In the present case the complaint has been filed though by a private complainant. The same has been filed by a public spirited individual seeking for the jurisdictional police i.e. ACB in respect of corruption matters to take action against the petitioner and others.
10.8. The said jurisdictional police in terms of corruption offences viz., ACB not having taken any action, the complainant was compelled to approach the jurisdictional magistrate. I therefore do not find any error in the said process followed by the complainant since the complainant has discharged his obligation insofar as approaching the ACB, but ACB has not CRL.P. No.3868 OF 2020 16 taken any action, thus the complainant has approached the jurisdictional magistrate. 10.9. In view of the above discussion, I answer the point no.1 by holding that in matters relating to corruption, the dicta laid down by ha in Priyanka Srivastava's case (supra) is not applicable to a complaint filed as regards corruption since the jurisdictional police are not empowered and authorized to investigate under the Prevention of Corruption Act. It is only the authorised Agency which can investigate with regard to offences under the Prevention of Corruption Act. Hence, the complaint has been itself filed before the ACB which is the authorised agency. In the event the said authorized agency not taking any action, the private complainant can CRL.P. No.3868 OF 2020 17 approach the jurisdictional magistrate to take necessary action.
11. ANSWER TO POINT No.2: Whether any sanction is required to be obtained to initiate action against a person who is a public servant when he is no longer functioning in the capacity where an illegal gratification obtained by him?
11.1. The petitioner in the present facts is alleged to have received illegal gratification during his send off ceremony/farewell ceremony. The petitioner who was earlier the CEO of Zilla Panchayat, Kolar was transferred as Deputy Commissioner, Udupi district on 20.8.2019 and immediately thereafter the petitioner is stated to have handed over charge in Kolar and accepted charge in Udupi on 20.8.2019. It is clear from the documents which have been produced by the petitioner himself that he had handed over and taken charge on 20.8.2019 at Udupi.
CRL.P. No.3868 OF 2020 18 11.2. The function relating to the farewell/send off was held on 23.08.2019 i.e. after the petitioner had taken charge as Deputy Commissioner, Udupi. He came back to attend the said function, it is during the said function, it is alleged that the petitioner is stated to have received silver crown, silver mace and gold rings as illegal gratification in the presence of Deputy Commissioner, Kolar.
11.3. It is alleged that the illegal gratification was received by him in kind towards the favours made by the petitioner to the other accused, as such amounting to offences under Section 13 of Anti Corruption Act under the KCS Conducts Rules, CCA Rules and under the IPC.
CRL.P. No.3868 OF 2020 19 11.4. The 2nd respondent in his complaint is stated to have produced photographs of the function which was widely reported including in the newspapers. He therefore had filed a petition with a Public Information Officer, Joint Secretary, Kolar under Right to Information Act seeking vouchers of the silver mace, silver crown and gold rings which had been received by the petitioner from accused Nos. 2 to 11 and the said authority has given an endorsement stating that such type of vouchers were not available with the authority. Thereafter the respondent No.2- complainant is stated to have approached the Principal Secretary, Department of RDPR about the illegal receipts in the function, in turn the said Secretary had directed the DPAR, Vidhana Soudha, Bangalore for proper enquiry and action, CRL.P. No.3868 OF 2020 20 but no action was taken. Thereafter the complainant had approached the additional Director General of Police, Anti Corruption Bureau, Bangalore about the illegal activities of the accused, who had in turn directed the complaint to the ACB, Kolar for proper enquiry, but no action was taken by the ACB, Kolar.
11.5. The petitioner is before this court urging that in terms of section 19 of the Prevention of Corruption Act, prior sanction is required to be taken by the respondent No.2 before initiating any action or investigation as against the petitioner who is a public servant.
11.6. It is further contended that without the sanction by a competent authority which is mandatory, no court can take cognizance of such complaint or refer the complaint for CRL.P. No.3868 OF 2020 21 any investigation for any of the offences punishable under the Prevention of Corruption Act.
11.7. It is alleged that in the present case the petitioner was working as the chief executive officer of Kolar Zilla Panchayat when the petitioner is stated to have bestowed favours on the other accused, however thereafter he was transferred as Deputy Commissioner, Udupi and after such transfer he came back to attend his farewell function in Kolar and it is at that time that the alleged illegal gratification is stated to have been received by the petitioner. Thus, he submits that the alleged illegal gratification being received on account of the alleged favours extended by the petitioner in favour of the other accused while he was working as a Chief CRL.P. No.3868 OF 2020 22 Executive Officer of the Zilla Panchayat, Kolar, necessary sanction under section 19 of the Prevention Of Corruption Act had to be obtained before initiating any action. This submission is made on the basis of the decision of the Apex Court in Anil Kumar - vs- M.K. Appaiah reported in (2013) 10 SCC 705 which is claimed to be reiterated in L.Narayana Swamy's case (supra). 11.8. Sri.Pramod Chandra, learned counsel for the petitioner relying on the above said decision would submit that without sanction the proceedings cannot be continued and/or investigation not be completed. 11.9. Per contra, Sri.Manmohan.P.N, learned Counsel for the respondent No.1 has contended that there is no such sanction which is required to be taken insofar as the offences alleged against the petitioner is CRL.P. No.3868 OF 2020 23 concerned for the simple reason that the offences when committed when the petitioner was the CEO of Zilla Panchayat, but prosecution is being initiated against the petitioner when he is discharging another official function as Deputy Commissioner, Udupi. He relies on the decision in L.Narayanaswamy's case (supra), more particularly at paragraph 18 thereof which is extracted hereinabove. 11.10. A perusal of the said decision rendered by Apex Court in L.Narayana Swamy's case (supra) would indicate that where a public servant had abused his office which he held in the check period ( i.e. when favours were made), but had ceased to hold that office or was holding a different office, then a sanction would not be necessary, the CRL.P. No.3868 OF 2020 24 different office in the present case being that of the Deputy Commissioner, Udupi. 11.11. The contention urged by Sri.Pramod Chandra, learned counsel is that during the check period the petitioner was CEO, Zilla Panchayat, but when proceedings were initiated against the petitioner, he was Deputy Commissioner, Udupi, the gratification, if any, is alleged to have been taken on 23.8.2019 when the petitioner was functioning as a Deputy Commissioner, Udupi. Thus if at all any gratification is taken, it is when the petitioner was functioning as Deputy Commissioner, Udupi, therefore sanction has to be obtained under Section 19 of the P.C.Act since proceedings are being initiated against the petitioner while he was occupying a public position.
CRL.P. No.3868 OF 2020 25 11.12. The above aspect would have to be considered in light of the proceedings which have been initiated, the cause, genesis and the impact thereof. Petitioner is stated to have bestowed favours on the accused during the time he was the CEO of Zilla Panchayat, Kolar, thereafter he was transferred as Deputy Commissioner, Udupi, the petitioner came back to Kolar to attend his farewell function, in this farewell function the petitioner is stated to have received illegal gratification of silver crown, silver mace and gold rings, the question would be whether this illegal gratification has been received by the petitioner during the course of discharge of his function as a Deputy Commissioner, Udupi or was it received during the course of discharging his duties as a CEO, Zilla Panchayat, Kolar.
CRL.P. No.3868 OF 2020 26 11.13. On the facts of the matter, it is clear that accused No.2 to 11 who had bestowed the illegal gratification on the petitioner were officers in Kolar and had no relation with the functioning of the petitioner as a Deputy Commissioner in Udupi, thus the allegation which has been made is that the petitioner having bestowed personal favours on the said accused while he was the CEO of Zilla Panchayat, Kolar, the said accused had provided illegal gratification to him for the favours bestowed by the petitioner on them at the time that the petitioner was a CEO of the Zilla Panchayat, Kolar.
11.14. The illegal gratification has not been received by the petitioner for favour made during the time he was discharging his function as the Deputy Commissioner, CRL.P. No.3868 OF 2020 27 Udupi. Thus it cannot be said that there needs to be any permission or sanction which is required to be taken under the P.C. Act for the purpose of initiating prosecution against the petitioner since in terms of the decision of the Hon'ble Apex Court in L.Narayana Swamy's case (supra), the permission is only required if action is proposed to be taken, investigation is conducted or cognizance is taken as regards the officer who is discharging his duties in the very same office where he is stated to have committed the offences under the Prevention of Corruption Act.
11.15. In the present case, the investigation is sought to be conducted as regards the corrupt activities of the petitioner during the time that he was a CEO of the Zilla CRL.P. No.3868 OF 2020 28 Panchayat, Kolar and since now the petitioner is a Deputy Commissioner, Udupi, as per the laid down in para 23 of the decision in L.Narayana Swamy's case (supra), there is no requirement to obtain any sanction since the alleged misconduct is in a different official capacity than the one which is held by the petitioner at the time of taking cognizance.
11.16. In view thereof, I answer point No.2 by holding that there is no sanction which is required to be taken for the corrupt practice alleged against the public functionary during the course of the discharge of his duties in a post which he no longer occupies and/or if he occupies a post other than the one in which he is stated to have indulged in corruption.
CRL.P. No.3868 OF 2020 29
12. ANSWER TO POINT No.3: What order ?
In view of the above discussion, having held that the dicta of the Hon'ble Apex Court in Priyanka Srivatsava's case (supra) is not applicable to a complaint filed as regards corrupt activities and having held that there is no requirement for obtaining prior sanction in respect of the petitioner who is holding a different post than that in which he is alleged to have committed corrupt practices, the petition does not survive and the petition is therefore dismissed.
Sd/-
JUDGE ln