Karnataka High Court
A.Shivaprakash S/O. A Shivayogappa vs Karnataka Lokayuktha Police on 11 March, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF MARCH, 2014
BEFORE
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION No.100205/2014 C/W
CRIMINAL PETITION No.100204/2014
IN CRIMINAL PETITION No.100205/2014
BETWEEN:
A.SHIVAPRAKASH S/O. A SHIVAYOGAPPA
AGED ABOUT 44 YEARS,
OCC: PROJECTOR MANAGER,
DRN INFRA-STRUCTURE ENGINEERS & CONTRACTORS,
NAYAKA HOUSE,
110, 3RD FLOOR, DOLLARS COLONY
GOKUL ROAD, HUBLI ... PETITIONER
(BY SRI. V M SHEELVANT, ADV.)
AND
1. KARNATAKA LOKAYUKTHA POLICE
HAVERI
2. BASAVARAAJ S/O.MALLAPPA MARKATTI
AGED ABOUT 52 YEARS,
R/O: NELLIBEED, TQ: HANGAL
3. NAGARAJ S/O BASAVARAJ HEBBAL
AGED ABOUT 29 YEARS,
R/O: NELLIBEED, TQ: HANGAL ... RESPONDENTS
(BY SRI. JAGADISH PATIL, ADV. FOR R1,
R2 & R3 SD)
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THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
SEEKING TO QUASH THE ORDER DATED 07.01.2014 PASSED
BY THE SPL. JUDGE, HAVERI AND PROCEEDINGS PURSUANT
THERETO AGAINST PETITIONER IN P.C.NO.1/2014 FOR
OFFENCES P/U/S 120(A), 409, 420, 465, 468 R/W SEC. 149 OF
IPC & 13(C) & (D) OF PREVENTION OF CORRUPTION ACT.
IN CRIMINAL PETITION No.100204/2014
BETWEEN:
1. R.V.KORAVAR (BHAJANTRI)
AGED ABOUT 35 YEARS,
OCC: REVENUE INSPECTOR,
R/O: BYADAGI, DIST: HAVERI,
AT PRESENT: BOMMANALLI,
TQ: HANAGAL.
2. RAMESH S/O PANDURANG KONAREDDY
AGED ABOUT 35 YEARS,
OCC: TAHASILDAR,
R/O: HOSPET,
TQ & DIST: BELLARY,
3. M.A.BANKAR
AGED ABOUT 59 YEARS,
OCC: R.F.O.,
R/O: HANGAL, DIST: HAVERI,
AT PRESENT: SOCIAL FORESTRY, SIRSI.
4. G.N.PATIL
AGED ABOUT 56 YEARS,
OCC: A.C.F.,
R/O: HANGAL, DIST: HAVERI, AT PRESENT:
WATERSHED DEVELOPMENT DEPT., DHARWAD.
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5. A.B.MORAPPANAVAR
AGED ABOUT 56 YEARS,
OCC: D.C.F.,
R/O: HAVERI, SUB-DVN, HAVERI.
6. M.M.NAZIRULLA
AGED ABOUT 54 YEARS,
OCC: SR.SCIENTISH, (MINES),
MINES AND GEOLOGY DEPT,
R/O: HAVERI.
... PETITIONERS
(BY SRI.: V M SHEELVANT, ADV.)
AND
1. KARNATAKA LOKAYUKTHA POLICE
HAVERI.
2. BASAVARAJ S/O MALLAPPA MARKATTI
AGED ABOUT 52 YEARS,
R/O.NELLIBEED, TQ: HANGAL.
3. NAGARAJ S/O BASAVARAJ HEBBAL
AGED ABOUT 29 YEARS,
R/O.NELLIBEED, TQ: HANGAL.
... RESPONDENTS
(BY SRI.JAGADISH PATIL, ADV. FOR R1,
SRI P.S.HEBBAL, ADV. FOR R3)
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO QUASH THE ORDER DATED
07.01.2014 PASSED BY THE SPL. JUDGE, HAVERI AND
ALSO QUASH ENTIRE PROCEEDINGS PURSUANT THERETO
AGAINST PETITIONERS IN P.C.NO.1/2014 FOR OFFENCES
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P/U/S 120(A), 409, 420, 465, 468 R/W SEC. 149 OF IPC &
13(C) & (D) OF PREVENTION OF CORRUPTION ACT.
These petitions coming on for admission this day,
the Court made the following:
ORDER
For the purpose of convenience of unnecessary repetition of facts, the above said two matters are taken up together for disposal.
2. In Crl. P. No.100204/2012 accused Nos. 1 to 6 are the petitioners and accused Nos.1 to 6. In Crl.P. No.100205/2014 petitioner arrayed as accused No.7. In private complaint No.1/2014 on the file of the Special Judge Haveri, registered for the offences punishable under Sections 120A, 409, 420, 465, 468 read with 149 of Indian Penal Code, 1860 and 13(C) and (d) of Prevention of Corruption Act.
3. The petitioners challenged the private complaint filed by respondent Nos.2 and 3 in the above said PCR on the ground that the entire allegations made in the complaint even if it is translating into evidence, they show that accused Nos.1 to 6 being the public servants, they have committed 5 the offences alleged while discharging their duties as such public servant. But, the said private complaint was filed without a valid sanction from the Government.
4. On filing the said private complaint, the learned Special Judge vide his order dated 7/1/2014 referred the matters under Section 156 (3) of Cr.P.C to Dy.S.P.Lokayukta Haveri, for investigation and report. The learned counsel for the petitioners submit that the matter is still under investigation, no final report is yet submitted.
5. The learned Counsel for the respondents-State Lokayukta police, Sri.Jagadish Patil and third respondent- Sri.Nagaraja Hebbar, are present before the Court. In fact, they have submitted before the Court, particularly, the respondent Nos.2 and 3 that they have made an application to the Government for grant of sanction to prosecute these accused persons before the competent Court. But, the Government has not yet granted sanction. The learned Special Judge in fact considered that at the stage of referring the matter to the police, the sanction need not to be 6 necessary, but, it is only necessary at the time of taking cognizance.
6. After hearing both the sides, the point that would arise for the consideration of this Court is that "whether the Special Judge has got any jurisdiction to entertain the complaint without there being a valid sanction accorded by the competent authority against the petitioners herein"?.
7. Before adverting to the said point, it is just and necessary to look into the brief factual aspects, which are adverted to in the complaint by the respondents herein. The allegations against the petitioners are that the petitioner Nos.1 to 6 are the public servants, who were working in the different departments, have in fact colluded together and helped the accused No.7 in securing the contract of stone quarrying in re-survey No.106/A1 to the extent of 14 acres. All the accused Nos.1 to 6 by using their influence as public servants, have been continuously abetting the commission of the offence by accused No.7. The said accused persons have 7 helped accused No.7 in securing the licence in a reserved forest area, which is not fit for the purpose of quarrying, but, it is only a place which is meant for cattle grazing. On the basis of the false reports by accused Nos.1 and 2, sent to accused No.6, it appears the licence has been issued to accused No.7. The accused Nos.1 to 6 have not in fact examined nature of the land, whether it is reserved forest area or deemed forest etc. But, submitted a false report in order to facilitate the accused No.7. The accused Nos.3 to 5 have also submitted a false report with regard to the western portion of the land situated by the side of Guddadabasaveshwara temple in Nellibeedu, though it is a reserved forest area. On the basis of the said false report, the Government has granted a licence to accused No.7. The complainants have informed all these misdeeds of accused Nos.1 to 6 and 7 to the Deputy Commissioner and other competent authorities. But, all his efforts went in vain and nobody has taken any action because of the influence 8 brought by accused Nos.1 to 6. Therefore, it appears he has filed a private complaint against the petitioners herein.
8. Looking to the above said facts and circumstances of the case, this Court has to inevitably come to the conclusion that allegations made against accused Nos.1 to 6 are that they have been creating a false documents in order to facilitate accused No.7 in getting licence for quarrying in different places. When such being the case, whether the public servant can be prosecuted particularly, under the provision of Prevention of Corruption Act, without there being a valid sanction. It is worth to note a decision of the Apex Court, which is the latest one reported in 2013
9. 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."
10. 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.
11. 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.
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.
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13. In view of the above said factual aspects and law laid down by the Hon'ble Supreme Court, I do not find any strong reasons to sustain the orders passed by the Special Judge. The petitioner No.7 of course is not a public servant. He is a contractor. Though the complaint is maintainable against accused No.7, but, the acts of accused Nos.1 to 7 are appears to be inseparable in nature. Unless the accused Nos.1 to 6 are held guilty. for any offences alleged against them in the complaint, the accused No.7 cannot be independently brought into books. Moreover when the complaint was filed before the Special Judge, the complaint itself is not maintainable so far as accused No.7 is concerned, unless accused Nos.1 to 6 are also made as a party in the complaint, in order to attract the provision of the Prevention of Corruption Act. When such being the case, the Special Judge gets no jurisdiction unless a valid sanction accorded by the competent Authority. In view of the above said facts and circumstances, I proceed to pass the following order:
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The order passed by the Special Judge in PCR No.1/2014 dated 7/1/2014 in a registering the case for the offences punishable under Sections 120(A), 409, 420, 465, 468 r/w Section 149 of Indian Penal Code, 1860 & 13(c) & (d) of Prevention of Corruption Act, and referring the matter to Lokayukta Police for investigation under Section 156 (3) without a valid sanction order is hereby quashed.
Consequently, all further proceedings to be taken on said referal order are also quashed. This order is passed only on the legal issues raised by the learned Counsel. However, the respondents are at liberty to prosecute the accused persons, if necessary and advice after obtaining a valid sanction from the competent authority in accordance with law. Accordingly, these two petitions are disposed of.
Sd/-
JUDGE Rms/Vmb