Karnataka High Court
R Ashoka vs The State Of Karnataka on 25 September, 2018
Equivalent citations: AIRONLINE 2018 KAR 915
Author: R.B Budihal
Bench: R.B Budihal.
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
WRIT PETITION NO.1775/2018 (GM-RES)
C/W
WRIT PETITION NOS.6464-6467/2018
WRIT PETITION NO.2028/2018
WRIT PETITION NO.11404/2018
&
CRIMINAL PETITION NO.912/2018
IN W.P. NO.1775/2018
BETWEEN:
R.ASHOKA
AGED ABOUT 60 YEARS
SON OF LATE MR.RAMAIAH,
RESIDING AT NO.123,
JALAHALLI VILLAGE
BANGALORE - 560 013. ...PETITIONER
(BY SRI B.V.ACHARYA, SENIOR COUNSEL A/W
SRI MANU KULKARNI, ADV.)
AND:
1. THE STATE OF KARNATAKA
HOME DEPARTMENT
VIDHANA SOUDHA
BENGALURU - 560 001
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY
2. THE ANTI CORRUPTION BUREAU
KHANIJA BHAVANA
RACE COURSE ROAD
BENGALURU- 560 001
REPRESENTED BY THE
2
SUPERINTENDENT OF POLICE
3. A.ANAND S/O ARASAPPA
AGE: MAJOR
NO.117, 5TH MAIN ROAD
LAKSHMANAPPA GARDEN
BANASHANKARI 3RD STAGE
BENGALURU - 560 085.
4. KARNATAKA LOKAYUKTA
REPRESENTED BY ITS REGISTRAR
DR.B.R.AMBEDKAR ROAD
MS BUILDING,
BENGALURU - 560 001. ...RESPONDENTS
(BY SRI CHETAN DESAI, HCGP FOR R1;
SRI B.N.JAGADEESH, ADV. FOR R2;
SRI K.GOVINDARAJ, ADV. FOR
SRI P.NEHRU, ADV. FOR R3;
SRI B.S.PRASAD, ADV. FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, 1950 R/W UNDER SECTION
482 OF CR.P.C., 1973, PRAYING TO QUASH THE COMPLAINT
DATED 3.1.2018 AT ANNEX-A FIR IN CRIME NO.5 OF 2018
DATED 8.1.2018 REGISTERED BY R-2 AT ANNEX-B AND ALL
FURTHER PROCEEDINGS IN PURSUANCE OF FIR DATED
8.1.2018 AND ETC.
IN W.P. NOS.6464-6467/2018
BETWEEN:
1. RAMCHANDRA @ RAMCHANDRAIAH
S/O LATE MARIYAPPA
AGED ABOUT 62 YEARS
R/AT 1209, 2ND B CROSS
2ND STAGE, J P NAGAR
BENGALURU - 560 078.
2. GAVIGOWDA
S/O TIRUMALAGIRIGOWDA
AGED ABOUT 67 YEARS
R/AT NO.53/26
5TH MAIN ROAD, SARAKI
BENGALURU - 560 078.
3
3. CHOWDAREDDY
S/O LATE VENKATARAMANAREDDY
AGED ABOUT 67 YEARS
R/AT NO.369, 4TH AVENUE
TEACHERS COLONY
KORAMANGALA
BENGALURU
4. K.T.SHASHIDHAR
S/O LATE TIMMEGOWDA
AGED ABOUT 65 YEARS
R/AT NO.651/94
5TH CROSS, 10TH MAIN ROAD
BSK 1ST STAGE, 2ND BLOCK
BANSHANKARI
BENGALURU. ...PETITIONERS
(BY SRI PRASANNA D.P., ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS ADDL. CHIEF SECRETARY
DEPARTMENT OF HOME
VIDHANA SOUDHA
BENGALURU - 560 001.
2. THE ANTI-CORRUPTION BUREAU
KHANIJA BHAVANA
RACE COURSE ROAD
BENGALURU - 560 001
REP. BY SUPERINTENDENT OF POLICE
3. A.ANANDA
S/O ARASAPPA
AGED ABOUT MAJOR
NO.117, 5TH MAIN
LAKSHMANAPPA GARDEN
BANASHANKARI 3RD STAGE
BENGALURU - 560 085.
4. KARNATAKA LOKAYUKTA
REP. BY ITS REGISTRAR
DR. B.R.AMBEDKAR ROAD
M S BUILDING
BENGALURU - 560 001. ...RESPONDENTS
4
(BY SRI CHETAN DESAI, HCGP. FOR R1;
SRI B.N.JAGADEESH, ADV. FOR R2;
SRI K.GOVINDARAJ, ADV. FOR
SRI P.NEHRU, ADV. FOR R3;
SRI B.S.PRASAD, ADV. FOR R4)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA R/W UNDER
SECTION 482 OF CR.P.C., PRAYING TO QUASH THE ALL
FURTHER PROCEEDINGS IN CRIME NO.5/2018 DATED
8.1.2018 OF THE R-2 FOR THE ALLEGED OFFENCE UNDER
SECTION 13 (1) (C), AND 13 (1) (D) R/W 13(2) OF THE
PREVENTION OF CORRUPTION ACT AND UNDER SECTIONS
420, 120(B) OF IPC NOW PENDING ON THE FILE OF THE 23RD
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE, BENGALURU CITY (CCH-24) AS PER
ANNEXURE-D AND ETC.
IN W.P. NO.2028/2018
BETWEEN:
KARTHIK B.
AGED ABOUT 34 YEARS
S/O SRI V.BALAKRISHNA @ SUGANA BALAKRISHNA
RESIDING AT NO.25/6
"KARTHIK NILAYA"
YELACHANAHALLI
KANAKAPURA MAIN ROAD
BANGALORE - 560 078. ...PETITIONER
(BY SRI K.SUMAN, ADV.)
AND:
1. THE STATE OF KARNATAKA
HOME DEPARTMENT
VIDHANA SOUDHA
BENGALURU - 560 001.
REPRESENTED BY ITS ADDITIONAL
CHIEF SECRETARY
2. THE ANTI-CORRUPTION BUREAU
KHANIJA BHAVANA
RACE COURSE ROAD
5
BENGALURU
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
3. SRI A.ANANDA
MAJOR IN AGE
NO.117, 5TH MAIN ROAD
LAKSHMANAPPA GARDEN
BANASHANKARI 3RD STAGE
BENGALURU - 560 085. ...RESPONDENTS
(BY SRI CHETAN DESAI, HCGP. FOR R1;
SRI VENKATESH P.DALWAI, ADV. FOR R2;
SRI K.GOVINDARAJ, ADV. FOR
SRI P.NEHRU, ADV. FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, 1950 R/W SECTION 482 OF
CR.P.C., 1973, PRAYING TO QUASH THE FIR IN CRIME
NO.5/2018 DATED 8.1.2018 REGISTERED BY R-2 I.E.,
ANNEX-A AND ALL FURTHER PROCEEDINGS IN PURSUANCE
OF THE SAID FIR DATED 8.1.2018 IN SO FAR AS IT RELATES
TO THE PETITIONER AND ETC.
IN W.P.11404/2018
BETWEEN:
H.V.SATHYANARAYANA
S/O LATE H.R.VENKATARAYA
AGED ABOUT 50 YEARS
R/AT NO.141, SAPTHAGIRI NILAYA
6TH CROSS, BILEKAHALLI
B.V.S.LAYOUT,
BANNERGHATTA ROAD
BENGALURU - 76. ...PETITIONER
(BY SRI PRASANNA D.P., ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS ADDL. CHIEF SECRETARY
DEPARTMENT OF HOME
6
VIDHANA SOUDHA
BENGALURU - 560 001.
2. THE ANTI-CORRUPTION BUREAU
KHANIJA BHAVANA
RACE COURSE ROAD
BENGALURU - 560 001
REP. BY SUPERINTENDENT OF POLICE
3. A.ANANDA
S/O ARASAPPA
AGED ABOUT MAJOR
NO.117, 5TH MAIN
LAKSHMANAPPA GARDEN
BANASHANKARI 3RD STAGE,
BENGALURU - 560 085.
4. KARNATAKA LOKAYUKTA
REP. BY ITS REGISTRAR
DR. B.R.AMBEDKAR ROAD
M.S. BUILDING
BENGALURU - 560 001. ...RESPONDENTS
(BY SRI CHETAN DESAI, HCGP FOR R1;
SRI VENKATESH P. DALWAI, ADV. FOR R2;
SRI K.GOVINDARAJ, ADV. FOR
SRI P.NEHRU, ADV. FOR R3;
SRI B.S.PRASAD, ADV. FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA R/W UNDER
SECTION 482 OF CR.P.C., PRAYING TO QUASH THE
COMPLAINT DATED 03.01.2018 (ANNEXURE-B), FIR CRIME
NO.5/2018 DATED 08.01.2018 REGISTERED BY
RESPONDENT NO.2 (ANNEXURE-A) AND ALL FURTHER
PROCEEDINGS IN PURSUANCE OF FIR DATED 08.01.2018
AND ETC.
IN CRL.P.NO.912/2018
BETWEEN:
C.SANDEEP BABU
S/O MR G.CHANARAYAPPA
AGED 38 YEARS
OCCUPATION: AGRICULTURE
7
RESIDENT OF THAGACHAGUPPE VILLAGE
KENGERI HOBLI
BENGALURU SOUTH TALUK
BENGALURU - 560 039
ALSO AT: NO.21,
PANTARAPALYA
MYSORE ROAD
BENGALURU - 560 039. ...PETITIONER
(BY SRI PRASANNA KUMAR P., ADV.)
AND:
1. STATE OF KARNATAKA
ANTI-CORRUPTION BUREAU
BENGALURU CITY
REPRESENTED BY ITS
SPECIAL PUBLIC PROSECUTOR
KHANIJA BHAVAN
RACE COURSE ROAD
BENGALURU - 560 001.
2. MR.ANANDA
S/O ARASAPPA
AGED 47 YEARS
NO.117, 5TH MAIN ROAD
LAKSHMANAPPA GARDEN
BANASHANKARI 3RD STAGE
BENGALURU - 560 085. ...RESPONDENTS
(BY SRI VENKATESH P. DALWAI, ADV. FOR R1;
SRI K.GOVINDARAJ, ADV. FOR
SRI P.NEHRU, ADV. FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO QUASH THE FIR IN CRIME
NO.5/2018 REGISTERED ON 08.01.2018 BY THE
RESPONDENT NO.1/ACB POLICE, BENGALURU ALLEGING
COMMISSION OF OFFENCE UNDER SECTIONS 13(1)(C),
13(1)(D) AND 13(2) OF PREVENTION OF CORRUPTION ACT
AND SECTION 420, 120B OF IPC PENDING BEFORE XXIII
ADDITIONAL C.C. AND S.J., SPECIAL JUDGE, BENGALURU
CITY IN SO FAR AS THE SAME RELATES TO THE ACCUSED
NO.9/PETITIONER HEREIN.
8
THESE WRIT PETITIONS AND CRIMINAL PETITION
HAVING BEEN HEARD AND RESERVED FOR ORDERS ON
06/07/2018, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The writ petitions are filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure praying to issue writ of certiorari or any other appropriate writ, order or direction and Criminal Petition is filed under Section 482 of the Code of Criminal Procedure., both by the petitioners- accused seeking to quash the complaint dated 3.1.2018 and FIR in Crime No.5/2018 dated 8.1.2018 registered by the respondent - Anti Corruption Bureau and all further proceedings in pursuance to FIR dated 8.1.2018.
Since the factual and legal aspect involved in all the above writ petitions are one and the same, they are taken together to dispose of them by this common order in order to avoid repetition of facts and law.
2. The sum and substance of the case of the petitioner-accused No.1 in W.P.No.1775/2018 is that one A.Anand, S/o Arasappa has filed a complaint on 3.1.2018 9 before the respondent-Anti Corruption Bureau alleging that there were illegalities in regularization orders passed between 1998 and 2007 by the Committee for regularization headed by the petitioner-accused No.1. It is alleged that between 18.8.1998 and 2007, petitioner- accused No.1 was a Member of the Legislative Assembly and consequently, was the chairman of the Committee for regularization of unauthorized occupation. The Committee consisted of Member of the Legislative Assembly as its Chairman, the Tahsildar as its Secretary and three other members nominated by the Congress Party which was the Government in power, for regularization of unauthorized occupation. It is alleged that in the period between 18.8.1998 to 2007, applications have been considered and orders were passed without applying the applicable rules and regulations. In order to benefit others, applications of financially well placed persons and those owning agricultural lands have also been considered. From 1998-2007, those who have considered the applications as well as those whose applications have been allowed are leaders, workers or 10 members of BBMP, all of whom belong to the Bharatiya Janatha Party. In paragraph No.13 of the complaint, it is further alleged that the then revenue officers named in paragraph 13, have not correctly examined the documents and have deliberately provided wrong information to the Committee. Complaint was received on 3.1.2018; a preliminary enquiry was conducted between 3.1.2018 and 6.1.2018 and that report of the preliminary investigation was submitted to higher authorities on 6.1.2018 and that as per the order of the higher authorities, the FIR is registered at 11.00 a.m. as Crime No.5/2018 under Sections 13(1)(c) and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 further read with Sections 420 and 120B of the Indian Penal code, 1860. Pursuant to the registration of FIR, some of the accused namely, Sri.Ramachandraiah-the then Tahsildar, Sri.Gavigowda the then Revenue Inspector, Sri.Chowdareddy, the then Revenue Inspector and Sri.Shashidhar - the then Village Accountant were arrested and remanded to police custody. Press release dated 9.1.2018 issued by respondent No.2 containing the 11 information with regard to the registration of FIR as well as arrest of the accused is as per Annexure 'C'. The allegations in the complaint are false, frivolous and vexatious. The complaint has been filed with an oblique motive to harass the petitioner and obtain undue political advantage. The complaint is engineered by the ruling Congress Party with ulterior motives and for extraneous considerations as will be clear from the subsequent averments. Congress Party of the State which came to power in May 2013 has been trying to malign the petitioner -accused No.1 since he is one of the top leaders of the BJP who held the position of Deputy Chief Minister of the State when the BJP was in power. It is learnt that on 27.5.2013, T.R.Srinivas, President, Bangalore Metropolitan District Congress Committee filed a complaint before the Hon'ble Lokayuktha alleging irregularities in the orders passed by the above mentioned Committee headed by accused No.1. It is further learnt that Lokayuktha commenced an investigation and the same is in progress. It is reliably learnt that the allegations in the aforementioned complaint are similar to 12 ones made in the present complaint. When an application under the Right to Information Act, 2005 was made to the Lokayukta for supply of copy of the said complaint dated 27.5.2013 and connected records, Lokayukta has issued the endorsement dated 22.11.2017 stating that the investigation is still in progress and that the documents are confidential, copies of the same cannot be granted and the request was rejected referring to Section 8 (1) (h) and Section 8(1)(g) of the Right to Information Act, 2005. It is further alleged in the petition filed by accused No.1 that before the present complaint dated 3.1.2018, an earlier complaint dated 9.11.2017 was filed by one Sri.M.A.Saleem, Member of the Karnataka Pradesh Youth Congress (I), Committee before respondent-Anti Corruption Bureau. Said complaint has been signed both by Sri.M.A.Saleem as well as the complainant A.Anand. The contents of the complaint dated 9.11.2017 are almost on the same lines as the present complaint dated 3.1.2018 resulting in the FIR. Respondent-Anti Corruption Bureau does not appear to have taken any further action on the complaint dated 9.11.2017. Having failed to take action 13 on the complaint dated 9.11.2017, surprisingly, on filing of the present complaint not only is an FIR registered in a hurry, but also further action is taken to arrest some of the petitioners-accused. The complaint dated 3.1.2018, signed only by the complainant-A.Anand appears to have been filed in order to hide the earlier complaint dated 9.11.2017 which is on the letterhead of the Karnataka Pradesh Youth Congress (I) Committee. Thus, it is apparent that the present complaint has also originated only from the congress party.
Regularization of unauthorized occupation of government lands is inter alia governed by sections 94-A, 94-B and 94-C and 94-CC of the Karnataka Land Revenue Act, 1964. In particular, Sections 94A and 94B deal with grant of land and Section 94A deals with regularization by constituting the Committee. Chapter XIII-A of the Karnataka Land Revenue Rules, 1966 prescribed the procedure to be adopted. Rules 108-CC(3) and 108-D provide that the Deputy Commissioner or other officer authorized under Section 94-B shall make spot inspection, examine the documentary and circumstantial 14 evidence, determine the eligibility or otherwise make a recommendation to the Committee (Committee has been defined under Rule 108-B to mean a Committee constituted under Section 94-A of the Karnataka Land Revenue Act). Under Rule 108-CC Eligibility is (finally) determined by the Deputy Commissioner or other officer authorized under Section 94-B. Under Rule 108-D, the Committee is required to determine the extent of land to which the applicant is entitled. In the circumstances, the role of the Committee is limited and it is the authorized officer/Deputy Commissioner who is tasked with the principal responsibility of determining eligibility. Even the limited jurisdiction vested in the Committee has to be exercised by it only on the basis of information furnished by the officials. The petitioner-accused No.1 as Chairman of the Committee will have no personal knowledge and he has to act only on the basis of information furnished by the officials. In fact the complaint itself concedes this position and blames the officials for furnishing incorrect information. The petitioner-accused No.1 and the Committee have taken decisions on the basis of records 15 available. The accused No.1 cannot be held responsible even if there is any incorrect information and at any rate there cannot be any criminal liability on his part. The decisions in all cases have been taken by the Committee unanimously and the same is based on merits of the case without reference to any political affiliations of the applicants. It is significant to note that three members of the Committee were appointed by the then ruling Congress Party and in the complaint none of the members of the then Committee have been accused and all the blame is sought to be put on the accused No.1 alone. The petitioner-accused No.1 has not committed any offence. The complaint is false with unfounded allegations. The Anti Corruption Bureau is not a police station within the meaning of Section 2(s) of the Code of Criminal Procedure, 1973 and is thus not authorized or empowered to accept the present complaint and register the first information report dated 8.1.2018. The Congress Government deliberately constituted Anti Corruption Bureau with a view to have full control over the investigating agency dealing with corruption cases. By executive action, the 16 power of Lokayuktha police is deliberately taken away and the said power is invested with the State Government so as to secure full control. This action of transfer of powers from Lokayuktha police to respondent - Anti Corruption Bureau is itself illegal and mala fide. Hence, petitioner- accused No.1 has approached this Court by filing the above writ petition.
3. W.P.Nos.6464-6467/2018 are filed under Articles 226 and 227 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure by accused Nos.2, 3, 4 and 5 challenging the initiation of criminal proceedings by registering the FIR, on the grounds as mentioned at ground Nos.14 to 25 of the writ petition.
4. W.P.No.2028/2018 is filed by petitioner-accused No.10 stating that in the year 2012, the Tahsildar, Bangalore South Taluk gave a report to the Assistant Commissioner, Bangalore South Sub-Division that the annual income of the petitioner as disclosed in Form No.53 was Rs.10,000/- and therefore, he was not eligible 17 to seek regularization of his unauthorized occupation. The Assistant commissioner initiated proceedings under Rule 108-K of the Karnataka Land Revenue (Amendment) Rules for cancellation of the grant/order made regularizing the unauthorized occupation in favour of the petitioner. On 7.8.2012, the Assistant Commissioner passed an illegal order setting aside the order of regularization of unauthorized occupation of the petitioner-accused No.10 on the ground that as per Rule 108F of the Amended Rules, petitioner was not eligible for grant of land as his annual income was more than Rs.8,000/-. The said order of the Assistant Commissioner was challenged by the petitioner-accused No.10 before the Deputy Commissioner, Bangalore District and the Deputy Commissioner rightly came to the conclusion that as Rule 108F (ii) has been deleted with effect from 27.9.1994 as per notification issued on 20.09.1994, the order passed by the Assistant Commissioner was unsustainable in law and that the Assistant Commissioner has failed to notice the deletion of the relevant provisions from the rules. The Deputy Commissioner, though set aside the order of the 18 Assistant Commissioner, however, strangely remanded the matter for fresh consideration to the Assistant Commissioner. Being aggrieved by the said order of remand petitioner-accused No.10 approached this Court challenging the same in W.P.No.25144/2016(KLR-RES). On 7.9.2017, this court allowed the writ petition upholding the contention of the petitioner that there was no other controversy left to be decided by the Assistant Commissioner and therefore, the question of remanding the matter by the Deputy Commissioner to the Assistant Commissioner for fresh consideration does not arise and accordingly, allowed the writ petition upholding the order of grant made in favour of the petitioner. Hence, petitioner-accused No.10 has also challenged the registration of the FIR on the grounds as mentioned in the writ petition.
5. W.P.No.11404/2018 is filed by one of the beneficiaries of the grant under Articles 226 and 227 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure. He also made similar allegations as 19 narrated above and sought for quashing of the FIR on the grounds as mentioned at ground No.13 to 22 of the said writ petition.
6. Crl.P.No.912/2018 is filed by accused No.9 under Section 482 of the Code of Criminal Procedure seeking to quash the FIR on the grounds as mentioned at ground Nos.16 to 23 of the said petition.
7. The respondent-Anti corruption Bureau filed the objection statement to the above petitions as under:
After receipt of the impugned complaint dated 3.1.2018 with the documents attached thereto, the respondent-Anti Corruption Bureau conducted preliminary inquiry into the same and found that the allegations in the complaint after looking at the document discloses the commission of cognizable offence, therefore, an FIR was registered against the petitioners-accused.
After the registration of the case against the petitioners, the Investigation officer conducted mahazar at the office of the petitioners and recovered documents pertaining to the 20 grant of land by the Committee headed by accused No.1. The said documents disclose that due to the action of accused No.1 lands have been granted to persons even in the absence of applications for the same, which amply disclosed in the proceeding of the Committee for which the accused No.1 himself is the chairman and the signatory. Section 94A of the Karnataka Land Revenue Act, 1964 mandates that the Government constitute the Committee for the purpose of grant of land under sub-Section (4) and it further mandates to include the Member of the Legislative Assembly. Chapter XIII-A of the Karnataka Land Revenue Rules, 1966 enables process for regularization of unauthorized occupation of land. More specifically, Rule 108-D mandates that the Committee should hold such enquiry as it may consider necessary after the verification of any application received for the regularization of unauthorized occupation of land. The Committee of which the accused No.1 was the Head/Chairman was entrusted with carrying out of executive function within the frame work of the law. As such, the procedures specified by the Karnataka Land 21 Revenue Act, 1964 and the Karnataka Land Revenue Rules, 1966 are binding on any action taken by the accused No.1 and the same must be in strict compliance of the said law and procedure. The accused No.1 along with other members of the Committee has acted in gross violation of the applicable legal rules to grant benefit to applicants arbitrarily and has misused his office to cause wrongful gains to several applicants towards whom he was favourably inclined. The accused No.1 and others have knowingly and deliberately not followed the procedure specified in Rules 108B, 108CC and 108D of the Karnataka Land Revenue Rules, 1966 to grant illegal benefit to applicants and also in many cases even without such application being submitted legally. The accused No.1 and other accused have gone to the extent of granting regularization of lands even to those people as well. The petitions are not maintainable and the same are liable for dismissal for the following reasons;
After the registration of the case, the Investigation Officer has conducted the mahazar and recovered the documents pertaining to grant of lands. The investigation 22 discloses that though there are no applications in certain cases, lands have been granted to the people. Further, it was also discovered during the investigation that certain beneficiaries of the accused No.1's actions already possessed land and title in their own names or in the names of their families. However, lands have been granted to such persons as well without any verification or inquiry being conducted by the Committee as contemplated under law headed by the accused No.1. In the case of grant of land to accused No.10-Karthik, it can be seen from perusal of the documents recovered by the Anti Corruption Bureau that land was granted to him despite there being no application to the said effect and no mention made in the inward register maintained at the office to receive any such application in the past. The distance of this land from BBMP limits was within 18 kms. and therefore, such land was ineligible for regularization. To consider the application favourably, the Committee considered the distance from the BBMP office, which is impermissible under law. The accused No.1 and others in the Committee are well aware of such rule more 23 so when the same Committee has presided over the rejection of several other applications, which are similar in all respects, to the ones they have granted. Therefore, a prima facie case of the misuse of public office is made out against the petitioner and others which is the subject matter of the impugned complaint and FIR registered by Anti Corruption Bureau, which is required to be investigated fully and speedily.
Accused No.10-Karthik has also filed writ petition challenging the registration of the FIR against him and he has mentioned his age as 34 years as on 2018. If taken at the face value, his age though there is no application available still going by the requirement of law that prior to 1990, the applicant must be cultivating three years indicates that in 1987 at least the applicant must be in cultivation to be eligible. Considering the age, the age of accused No.10 was around three years in 1987. Hence, on the face of it, allotment of land is fraudulent, which act was possible by only abusing the office of the accused No.1 and others in the Committee. The requirement of law under Rule 108F of Karnataka Land Revenue Rules, 24 1966, for being eligible for applying for such land, he should be 18 years and above. Further, he has to be a bonafide agriculturist cultivating the land personally and cultivating such land. He must be in authorized occupation of land for at least a continuous period of not less than three years prior to 14th day of April 1990. Corollary of his age discloses that he started cultivating the regularized land when he was three years old. It prima facie appears to be abuse and false. Under the Land Grant Rules, there is object and purpose to be achieved to grant for eligible persons in the larger public interest. The accused No.1 by overlooking the element of public interest, granted the land to accused No.10 herein who alleged to have started cultivating land when he was three years old and whose application even as per note sheet of accused No.1 was not found. Hence, these facts prima facie indicates that the petitioners have committed the offences.
The accused No.1 has also recommended the grant of land in cases where both applicants, who are a married couple and are residing together, have made separate 25 applications at the same time for the grant of land. In such cases, land has been granted to both of the persons separately and in violation of rules.
In certain cases, the files obtained by Anti Corruption Bureau discloses that lands have been granted to applicants in violation of the distance requirements specified in Section 94A(4) of the Karnataka Land Revenue Act, 1964 by grant of land within 18 kms. from Bangalore city limits. In certain other cases, the accused No.1 rejected the applications for grant of land on this ground in the past. Therefore, the documents clearly show that the exercise of the functions of accused No.1 has occurred and is continuing to occur on a purely illegal /extraneous basis and contrary to the rule of law. Accused No.1 has acted arbitrarily in exercise of his authority by violating the procedures and rules specified for the grant of lands.
It is amply clear that there exists prima facie case to investigate under the Prevention of Corruption Act, 1988 and the impugned FIR is based on reasonable and well grounded allegations against accused No.1. The petitioners have not raised any substantive grounds 26 challenging the institution of the proceedings against them by the respondent, but has raised irrelevant and inconsequential grounds, which should be rejected. There exists strong prima facie basis to fully investigate the petitioners for the offences under Sections 13(1)(c), 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 420, 120B of the Indian Penal Code, 1860.
The averments made by accused No.1 and other petitioners regarding the former complaints made to the Anti Corruption Bureau dated 9.11.2017 and before the Karnataka Lokayukta dated 27.5.2013 are submitted to be immaterial to the legality and vires of the present FIR and investigation against the petitioners and the present FIR is fully in compliance with law and procedural requirements. With effect from 19.3.2016, the powers vested with the Police Wing attached to the Karnataka Lokayuktha was withdrawn in so far it relates to investigation under Prevention of Corruption Act, 1988. Hence, as on date, the respondent-Anti Corruption Bureau is the agency vested with powers to investigate the 27 offences. Even if any enquiry is pending before Karnataka Lokayuktha under the Karnataka Lokayuktha Act, operation of the Prevention of Corruption Act, 1988 and Indian Penal Code will not get eclipsed as Section 28 of the Prevention of Corruption Act, 1988 takes care of situation.
Accused No.10 placed reliance of order passed by this Court in W.P.No.25144/2016 dated 7.9.2017. However, it is submitted that act of fraud and abuse of office by the petitioners being the beneficiary of such fraudulent exercise of powers was not the issues considered in the writ petition. Dealing the matter on civil jurisdiction will not wipe out offences committed by the petitioners nor such order can be used as shield to cover up patently fraudulent grants. Even though grant is restored still the facts and the process leading to grant adopted by the accused herein cannot be brushed aside. It is the law of the land that fraud vitiates everything obtained.
8. Heard the arguments of learned counsel appearing for the petitioners in the respective petitions, 28 arguments of the learned Special Public Prosecutor for the respondent-ACB and the learned counsel appearing for the complainant.
9. Sri.B.V.Acharya, learned Senior Counsel appearing for accused No.1 submitted that the FIR registered against the petitioner will not make out any prima facie case as well as cognizable offence. He submitted that registration of FIR is mainly because of political reasons since assembly elections were forthcoming and only with an intention to tarnish the image of accused No.1 before the public such a false case has been foisted against accused No.1. Learned Senior Counsel further submitted that the alleged offences are said to have been committed during the period between 1998 to 2006-2007 i.e., nearly 20 years back and the FIR came to be filed after a long unreasonable delay, only with an intention to harass accused No.1. He drew the attention of this Court to the relevant provisions of Karnataka Land Revenue Act and Rules and submitted that in case if there are any illegalities or irregularities in 29 the allotment of the lands by the Committee, there is a remedy available in the very Act itself and before whom they are to be corrected and challenged and there is arrangement under the Karnataka Land Revenue Act and Rules. Without approaching the said authorities like the Assistant Commissioner and thereafter the Deputy Commissioner, directly they cannot file such complaint before the ACB Police. He made further submission that even earlier also such a complaint was filed before the Lokayuktha in the year 2013, which is still under investigation and not yet concluded. Keeping the said matter pending, registration of present FIR does not arise at all. Though in this case they have applied for all the copies of the documents, but the same were not furnished to them and after such a long time, if the proceedings are permitted to be initiated, the writ petitioner will not be in a position to oppose the same by producing relevant documents. The Committee constituted is in the nature of recommendary body which is assisted by other Members of the Committee and it is also assisted by the Tahsildar, Deputy Commissioner and other Members and after 30 obtaining information from all those persons, Committee granted the lands to the persons who were eligible. Therefore, the learned Senior Counsel submitted that no illegality has been committed nor there are any irregularities in the allotment of the lands and there is no merit in the case registered. He also submitted that in the writ petitions filed by some of the persons before this Court, the learned Single Judge holding that no illegality has been committed in the allotment of lands has allowed the said writ petitions. Accordingly, he submitted to allow the writ petitions and to quash the proceedings.
In support of his contentions, learned Senior Counsel has relied upon the following decisions:
(1) State of Punjab -vs- Kailash Nath with State of Punjab and others -vs- Mangal Singh Minhas and others reported in (1989) 1 SCC 321 (2) M/s N.M.Goel and Co. -vs- Sales Tax Officer, Rajnandgaon and another reported in (1989) 1 SCC 335 (3) Abdul Rehman Antulay and Others -vs- R.S. Nayak and Another reported in (1992) 1 SCC 225 (4) R.S.Nayak -vs- A.R.Antulay and Others reported in (1992) 1 SCC 279 31
10. Sri.K.Suman, learned counsel appearing for petitioner-accused No.10 in W.P.No.2028/2018 submitted that there were proceedings before the Assistant Commissioner and the report of the Tahsildar seeking cancellation of the allotment made in favour of petitioner- accused No.10. As per the report of the Tahsildar, the Assistant Commissioner cancelled the grant made in favour of the petitioner-accused No.10 and the said order was challenged by filing a revision petition before the Deputy Commissioner wherein the order of the Assistant Commissioner was set aside observing that provision under Rule 108F (ii) was deleted much earlier i.e., in 1994 which was not conceded by the Assistant Commissioner and the Deputy Commissioner though set aside the order of the Assistant Commissioner, but wrongly remanded the matter back to the Assistant Commissioner. Dissatisfied with the remand order passed by the Deputy Commissioner, petitioner-accused No.10 preferred writ petition before the learned Single Judge of this Court in W.P.No.25114/2016(KLA-RES) and by order dated 7.9.2017 it came to be allowed and order of the Deputy 32 Commissioner, remanding the matter to the Assistant Commissioner for fresh consideration was set aside. In the said order, it is also made clear that the rest of the order of the Deputy Commissioner remains undisturbed. Learned counsel submits that the very same contentions as raised in the present FIR were raised before the Assistant Commissioner, which has attained finality by the order passed in the writ proceedings. Hence, the respondent-police are not permitted, at this stage, again to register the FIR and to proceed with the investigation of the matter. It is also his submission that as per Section 300 of the Cr.P.C. the present proceedings are also hit by the principles of res judicata and in this connection learned counsel relied upon the decision of this Court reported in ILR 1993 KAR 1430 rendered in the case of State of Karnataka Vs. G.Lakshman. Accordingly, submitted that respondent-police are not permitted again to register the FIR. He submitted that when the validity and legality of the FIR has been challenged before the Court, the Court has to see only the allegations made in the FIR and not to refer to any other materials collected by 33 the respondent-police. He also drew the attention of the Court to the contents of the complaint and submitted that so far as the petitioner-accused No.10 is concerned, the only allegation at paragraph No.12 on page No.2 of the complaint is made applicable. Except this averment there is no other allegation is made against the petitioner- accused No.10 and even in paragraph No.12 also there are no allegations that accused No.10 committed any of the offences alleged. So far as the offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act is concerned, though the said offences are also mentioned in the FIR, so far as accused No.10 is concerned, such offences are not applicable as he is not a public servant. He also made the submission when the matter has attained finality as the order of the learned Single Judge was not challenged and again the matter cannot be opened as against the petitioner-accused No.10 by the respondent-police. So far as the eligibility criteria as stated in Section 108F of the Karnataka Land Revenue Act is concerned he submitted that person in occupation is entitled for the grant of the land and he need not 34 necessarily be the cultivator or cultivating the land and he also submitted that even he may be a minor. All these things were already considered by the competent Court in the proceedings, hence, submitted that there is no merit in the complaint filed against petitioner-accused No.10.
In support of his contentions, learned Counsel has relied upon the following decisions:
(1) Pratibha -vs- Rameshwari Devi and others reported in (2007) 12 SCC 369 (2) State of Karnataka -vs- G.Lakshman reported in I.L.R. 1993 KAR 1430 (3) M.L.Bhatt -vs- M.K. Pandita reported in LAWS(SC) 2002 2 129
11. Sri.Prasanna Kumar.P., learned counsel appearing for petitioner-accused No.9 in Crl.P.No.912/2018 submitted that that he will adopt the arguments advanced by the learned Senior Counsel for accused No.1 and also the learned counsel for accused No.10. In addition to that, he submitted that when the allegations are general in nature and pertaining to the transaction which took place nearly about 20 years back, 35 FIR cannot be registered. It is also the submission of the learned counsel that the matter is not investigated by competent Investigation Officer as prescribed under Section 17 of the Prevention of Corruption Act. He further submitted that when the earlier complaint filed before the Lokayuktha is still pending consideration and the investigation is still going on, the present proceedings which are parallel in nature, are not at all maintainable.
The learned counsel also drew the attention of this Court to the documents at Annexure 'D', Grant Certificate, Annexure 'L' order dated 5.4.2016 passed in W.P.No.5985/2016 and other connected matters and also to Annexures N, P, Q, R and S and submitted that even in the complaint there are no averments with regard to the earlier complaint filed. Hence, he submitted to allow the petition and to quash the proceedings initiated against the accused.
12. Sri.Prasanna.D.P, learned counsel appearing for accused Nos.2 to 5 in W.P.Nos.6464-6467/2018 and in W.P.No.11404/2018 submitted that he will adopt the arguments advanced by learned Senior Counsel 36 Sri.B.V.Acharya. He made further submission that other members of the committee are not made as a party and hence, initiating proceedings only against some of the persons is not permissible. He submitted that the said grant is of the year 2004 and complaint filed by one Srinivas before the Lokayuktha in the year 2013 is still pending and in the said complaint names of these petitioners are not at all forthcoming and no saguvali chit is issued in favour of the accused Nos.2 to 5. Narayanaswamy, the subsequent Secretary of the committee is not made an accused person in the complaint and the regularization order made is on the basis of survey report. He also submitted that as per Rule 179 of the Karnataka Land Revenue Rules, there is a bar for prosecution and as such, the complaint filed against the petitioners is clear abuse of process of law and is with malafide intention.
13. Sri.B.N.Jagadeesh, learned Special Public Prosecutor appearing for Anti-Corruption Bureau in W.P. No.1775/2018 and W.P. Nos.6464-6467/2018 submitted that 37 after registration of the case, the investigation officer conducted mahazar at the office of the accused No.1 and recovered documents pertaining to grant of land by the Committee headed by accused No.1. The said documents discloses that due to the action of accused No.1 lands have been granted to persons even in the absence of applications for the same which amply displaced in the proceeding of the Committee for which accused No.1 himself is the Chairman and signatory. He also submitted that Section 94A of the Karnataka Land Revenue Act, 1964 mandates that the government constitute the Committee for the purpose of grant of land and under Sub-Section (4) and it further mandates to include the member of the Legislative Assembly. He submitted that Chapter XIII A of the Karnataka Land Revenue Rules, 1966 enables process for regularization of unauthorized occupation of land. Rule 108-D mandates that the Committee should hold such enquiry as it may consider necessary after the verification of any application received for the regularization of unauthorized occupation of land. The petitioner-accused No.1 being the Head/Chairman 38 was entrusted with carrying out of executive function within the framework of law. As such, the procedure specified by the Karnataka Land Revenue Act, 1964 and the Karnataka Land Revenue Rules, 1966 are binding on any action taken by the petitioner and the same must be in strict compliance of the said law and procedure. He submitted that accused No.1-petitioner along with other members of the Committee has acted in gross violation of the applicable legal rules to grant benefit to the applicants arbitrarily and misused his office. He also submitted the petitioners have not followed the procedure specified in Rules 108-B, 108-CC, 108-D of the Karnataka Land Revenue Rules, 1966. In the case of grant of land to accused No.10-Karthik, from the perusal of documents recovered by the Anti Corruption Bureau it is seen that land was granted to him despite there being no application and no mention made in the inward register maintained at the office to receive any such application in the past. The distance of this land from the BBMP limits was within 18 kms. and therefore, such land was ineligible for regularization. A prima facie case of misuse of public 39 office is made out against the petitioners which is the subject matter of the impugned complaint and FIR registered by the Anti Corruption Bureau, which is required to be investigated. If the age of accused No.10 Karthik is taken into consideration, as on the date of grant of said land in his favour, he was just 3 years old in the year 1987. Hence, on the face of it, allotment of land is fraudulent which act is possible only by abusing the office of petitioners and others in the Committee. As per Rule 108-F of the Karnataka Land Revenue Rules, 1966 for being eligible to apply for such land, he should be 18 years and above. He has to be a bonafide agriculturist cultivating the land personally. He also made the submission that accused No.1 and other members of the Committee also recommended grant of land in cases where both the applicants are married couple, residing together and have made separate applications. In such cases, lands have been granted to both persons separately in violation of the Rules. In certain cases, it discloses that lands have been granted to applicants in violation of the distance requirements specified in Section 94A(4) of the 40 Karnataka Land Revenue Act, 1964, whereas, in certain other cases, accused No.1 has rejected the applications for grant of land on these grounds in the past. Therefore, the said exercise of functions by accused No.1 is illegal and arbitrarily violating the procedures and rules specified for grant of lands. There is prima facie material to investigate the case as against accused No.1 under the Prevention of Corruption Act, 1988. So far as the bar of res judicata that some of the accused persons have approached this Court including accused No.10-Karthik wherein the writ petitions were allowed by the learned Single Judge of this Court and as such, now the matter cannot be agitated by the Anti Corruption Bureau, he submitted that no such principle is made applicable to the facts of the present case. The annexure produced to claim and indicate as if 3.1.2018 is the second complaint is factually incorrect, the complaint dated 9.11.2017 does not bear the signature of the complainant herein. Under Rule 108-D of the Karnataka Land Revenue Rules, 1966, the Committee headed by accused No.1 was under legal obligation to conduct verification and inquiry into all applications prior 41 to the grant of land to the applicants. The Committee cannot avoid the responsibility under the Act. Petitioners have not made out the grounds for approaching this Court under its extraordinary writ jurisdiction coupled with Section 482 of Cr.P.C. in the present cases.
Sri.B.N.Jagadeesh, learned Special Public Prosecutor appearing for Anti-Corruption Bureau, in support of his contentions, has relied upon the following decisions:
(1) State of M.P. -vs- Awadh Kishore Gupta and others reported in (2004)1SCC 691 (2) Taramani Parakh -vs- State of Madhya Pradesh reported in (2015) 11 SCC 260 (3) State of Telangana -vs- Habib Abdullah Jeelani reported in (2017)2 SCC 779 (4) King Emperor -vs- Khawaja Nazir Ahmad reported in AIR 1945 PC 18 (5) State of Karnataka -vs- G.Lakshman reported in ILR 1993 KAR 1430 (6) K.G.Premshanker -vs- Inspector of Police reported in (2002)8 SCC 87 42 (7) Iqbal Singh Marwah -vs- Meenakshi Marwah reported in (2005) 4 SCC 370 (8) State (NCT of Delhi) -vs- Ajay Kumar Tyagi reported in (2012) 9 SCC 685 (9) Yellappa Veerappa Maddikarr -vs- State of Karnataka reported in 2016(5) Kar.L.J 76 (10) State of Karnataka -vs- Selvi J.Jayalalitha reported in (2017) 6 SCC 263.
(11) HDFC Securities Ltd., Vs. State of Maharashtra reported in (2017)1 SCC 640
14. Sri.Venkatesh.P.Dalwai, learned Special Public Prosecutor appearing for Anti Corruption Bureau in Writ Petition Nos. 2028/2018, 11404/2018 and Crl.p.No. 912/2018 has submitted that accused No.10- Karthik was born in the year 1984 and in the year 1987 he was three years old. Therefore, at any stretch of imagination it cannot be imagined that he was cultivating the said land as an agriculturist. He also submitted that there is no application filed by accused No.10 and even the Committee accepted that there is no such application. The 43 name of the petitioner is shown as S/o V Balakrishna @ Suguna Balakrishna. In the land records Balakrishna's name is not at all found. He drew the attention of this Court to Section 28 of the Prevention of Corruption Act and submitted that the alleged offences under the provisions of Sections 13(1)(c), 13(1)(d) (i) and (ii) are also attracted.
15. Sri.P.Nehru, learned counsel appearing for the complainant-A.Anand submitted that there is abuse of power by the Chairman and Members of the Committee in regularization and allotment of lands. He submitted that in the year 2012, land granted to the Corporator and his wife was taken back, which is not sufficient and that for violating the rules and regulations they are to be punished. It is also his submission that the income limit prescribed under the Rules for grant of lands is also not scrupulously followed by the Committee. When an alternative remedy is available, the writ petitions filed for quashing of the proceedings are not sustainable in law.
Regarding the submission of the other side that there is a 44 long delay in challenging the proceedings, learned counsel submitted that no limitation period is prescribed for challenging the same.
16. I have perused the averments made in all the petitions, objections statement filed by the respondents, documents produced by both sides and the decisions relied upon by learned counsel on both sides and also considered the oral submissions made by learned Senior Counsel/Counsel on both sides at the bar.
17. It is the contention of the petitioners that with regard to the same subject some of the accused persons have approached this Court and the learned Single Judges of this Court in the writ jurisdiction have considered those cases and disposed of the same holding that regularization of agricultural lands and their allotment to the accused persons is valid, as such, the respondent-State cannot again challenge the same in the criminal proceedings since it is hit by Section 300 of Cr.P.C. under the principle of res judicata. In this connection, petitioners' counsel 45 has drawn my attention to paragraph Nos.31 and 33 of the decision of the learned Single Judge of this Court reported in ILR 1993 KAR 1430 in the case of State of Karnataka Vs. G.Lakshman, decision of the learned Single Judge dated 7.9.2017 rendered in W.P.No.25144/2016 in the case of Karthik i.e., accused No.10 herein Vs. State of Karnataka, Represented by its Principal Secretary, Revenue Department, M.S.Building, Bangalore and four others and also to another decision of the learned Single Judge dated 5.4.2016 rendered in W.P.No.5985/2016 (KLR-RES) c/w W.P.Nos.5986-5987 and 5988/2016(KLR-RES) in the case of A.Lakshmidevamma Vs. State of Karnataka and two others.
18. In this regard, respondents have relied upon the decision of the Full Bench of Hon'ble Apex Court reported in (2012) 9 SCC 685 in the case of State (NCT of Delhi) Vs. Ajay Kumar Tyagi and also the decision of the Privy Council in the case of The King Emperor Vs. Khawaja 46 Nazir Ahmad, wherein their Lordships' have laid down the proposition as under:
"In the case of a cognizable offence the police may hold an investigation irrespective of any order of any Court. Courts have no control in such cases over the investigation, or over the action of the police in holding such investigation. In a case of the prosecution of a public servant for an offence while acting or purporting to act in the discharge of his official duty no sanction is required prior to the police holding an investigation although the subsequent initiation of such prosecution may require such sanction."
and also to another Full Bench decision of the Hon'ble Apex Court reported in (2002)8 SCC 87 in the case of K.G.Premshanker Vs. Inspector of Police and another wherein at paragraph Nos.16, 17, 18, 19, 20 & 24 their Lordships' have observed as under:
"16. In our view, the submission of learned Additional Solicitor-General requires to be accepted. Sections 40 to 43 of the Evidence Act provide which judgments of courts of justice are relevant and to what extent. Section 40 provides for previous judgment, order or a decree which by law prevents any court while taking cognizance of a suit or holding a trial, to be a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial, Section 40 is as under:47
"40. Previous Judgments relevant to bar a second suit or trial.-The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial."
17. Section 41 provides for relevancy of certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction and makes it relevant or conclusive as provided therein.
18. Section 41 reads thus:
"41. Relevancy of certain judgments in probate, etc., jurisdiction - A final judgment, order or decree of a competent court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof-
that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;
that any legal character, to which it declares any such person to be entitled, 48 accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;
that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;
and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.
19. Section 42 with illustration reads thus:
"42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41- Judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.
20. Thereafter, Section 43 in terms provides that judgments, orders or decrees, other than those mentioned in Sections 40, 41, 42 are irrelevant unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some provisions of the Act.
21. .... .... .... ....
49
22. .... .... .... ....
23. .... .... .... ....
"24. Further in M.S.Sheriff Vs. State of Madras the Constitution Bench of this Court dealt with an exactly similarly situation, where two sets of proceedings arising out of the same facts were pending, namely, two civil suits for damages for wrongful confinement and another two criminal prosecutions under Section 344 IPC for wrongful confinement. In that context, it was contended that simultaneous prosecution of these matters will embarrass the accused and the Court considered the question whether criminal prosecution should be stayed. In that context, it was held thus :
(AIR p. 399 para 15).
"15. As between the civil and criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment."
Further, in paragraph No.229 of the decision reported in (2017) 6 SCC 263 in the case of State of Karnataka -vs- 50 Selvi J.Jayalalitha relied upon by Sri.B.N.Jagadeesh, learned Special Public Prosecutor, it is held as under:
"229. A Constitution Bench of this Court in Iqbal Singh Marwah v. Meenakshi Marwah (Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370: 2005 SCC (Cri) 1101), in this context had ruled that there is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in other as both the cases have to be decided on the basis of the evidence adduced therein.
Looking to the principles enunciated in the above said decisions, I am of the opinion that the criminal proceedings cannot be stalled or quashed by invoking Section 482 of Cr.P.C.
19. The contention of the petitioners is that the alleged incident/offences is said to have been committed long back i.e., between the period 1998 and 2007 and as such, after such a long delay, the respondent-police cannot register the case and proceed with the matter and it is also their contention that accused No.1 who was the Chairman of the Committee at that relevant point of time is not all holding the said post presently. In this 51 connection, learned counsel for accused No.1 has relied upon the relevant paragraphs Nos.17 and 18 of the decision in the case of State of Punjab -vs- Kailash Nath with State of Punjab and others -vs- Mangal Singh Minhas and others reported in (1989) 1 SCC 321, which reads as under:
"17. It was also urged by the learned counsel for the respondents that the third proviso to clause (b) of Rule 2.2 was for the benefit of a government servant and virtually incorporates the principle underlying Article 21 of the Constitution by fixing four years as the limit for initiating prosecution. In support of the submission reliance was placed on a Full Bench decision of the Patna High Court in Madheshwardhari Singh -vs- State of Bihar reported in AIR 1986 Pat 324. In that case, it was held that in all criminal prosecutions, the right to a speedy public trial is now an inalienable fundamental right of the citizen under Article 21 of the Constitution and it extends to all criminal proceedings for all offences generically irrespective of their nature. It was also held that giving effect to fundamental right of a speedy public trial, therefore, would not in any way conflict with the provisions of the Code of Criminal Procedure and that unless the fundamental right to speedy trial is to be whittled down into a mere pious wish, its enforceability in court must at least be indicated by an outer limit to which an investigation and the trial in a criminal prosecution may ordinarily extend.52
18. We are informed that special leave has been granted by this Court against the aforesaid judgment and its correctness is thus sub-judice. That apart, even if the soundness of the principle that there should be speedy trial may not be disputed, the said principle cannot be invoked by the respondents in support of their interpretation of the third proviso to clause (b) of Rule 2.2 framed under Article 309 of the Constitution whose purpose, as already indicated above, is not to place an embargo on prosecution. It is always open to quash a prosecution on the ground of unexplained unconscionable delay in investigation and prosecution on the facts of a given case".
20. In reply to this contention, learned Special Public Prosecutor has relied upon the decision in the case of State of M.P. -vs- Awadh Kishore Gupta and others reported in (2004)1 SCC 691. I have perused the principles enunciated in the said decision.
21. In the case on hand, no doubt there may be some delay in registration of the FIR. But in the complaint averments serious allegations are made that the Committee constituted under the Chairmanship of accused No.1 for regularization of unauthorized cultivation of agricultural lands, has not at all followed the 53 rules and regulations as contemplated under the Karnataka Land Revenue Act and Rules. The Chairman- accused No.1 belonging to Bharatiya Janatha Party allotted lands to the members of the said party, ignoring the procedural aspects as contemplated under the Karnataka Land Revenue Rules. Further, 4 acres of land is allotted to a person who was aged only three years as on the date of allotment. Another 4 acres of land is granted to husband and wife each of the same family. Further, lands have been granted to the applicants in violation of the distance requirements specified in Section 94A(4) of the Karnataka Land Revenue Act, 1964 by grant of land within 18 kms. from Bangalore city limits, whereas in certain other cases, conveniently, accused No.1 has rejected the applications and because of such illegal allotment of lands to the persons who are not eligible there is a loss to the government exchequer in crores of rupees. The Revenue Inspectors and Tahsildar were having records and information that the lands were within 18 kms. from the city limits, in spite of that, allotments were made, as such, necessary legal action is required to be 54 taken as against the Revenue Inspectors and Tahsildar. Even there is an allegation that the lands were allotted to the persons who are already having agricultural lands and also to the persons who are not at all involved in agricultural activities. That persons who got such allotment for the period from 1997 to 2006 are all belonging to Bharatiya Janatha Party and their family members. In some of the cases, though the Chairman and other members of the Committee were fully aware of the financial status of the applicants, they have received affidavits showing their income as Rs.8000/- thereby they have co-operated for committing the alleged offences. The names of some of the persons who smelt about the action that would be taken against them, have been already disappeared from the computers, for which, the concerned officers have also co-operated with them. There are documents to show that one Sri.D.Venkatesh Murthy and his wife Smt.K.Prabha got 4 acres of land each in Sy.No.242, Somanahalli village, Uttarahalli Hobli, Bangalore South Taluk and that they belong to the political party of accused No.1. Further accused No.10- 55 Karthik, S/o Suguna got allotted 4 acres of land in Sy.No.91 and one Sandeep Babu also got 4 acres 20 guntas of land in Sy.No.60, Tagachaguppe village, Kengeri hobli, Banglore South Taluk, unauthorisedly. The then Revenue Officers namely Ramachandraiah-Tahsildar, Bangalore South Taluk, Sri.Gavi Gowda-Revenue Inspector, Hemmigepura Circle, Sri.Chowdareddy-Revenue Inspector, Nelaguli circle, Sri.Shashidar-Village Accountant, Agara village, Sri.Madashetty-Village Accountant, Somanahalli village and others without verifying the documents properly, have intentionally given false information and took part in the illegalities committed by the Committee. Accordingly, it is alleged in the complaint that the lands were allotted to the persons who were already having lands thereby cheating the Government and also poor persons and caused loss to the Government exchequer.
22. In view of the serious allegations made in the complaint as against the accused persons and also perusing the entire material, I am of the opinion that it is 56 too early for this Court to quash the criminal proceedings. Apart from that, looking to the complaint and FIR, I am also of the opinion that it is not a case filed to abuse the process of Court and it cannot be said that there is no prima facie case as against the accused persons.
23. It is the contention of Sri.B.V.Acharya, learned Senior Counsel that the Committee is only a recommendary body and is assisted by other persons of the Revenue Department who have furnished false information to the Committee, for which, the Chairman and other members of the Committee cannot be held responsible.
When the Act contemplates constitution of such Committee under the Chairmanship of the sitting MLA and accordingly, the Committee was constituted wherein accused No.1 was the Chairman, as per the provisions of the Karnataka Land Revenue Act and Rules, duty is cast on the said Committee to verify the documents and to ascertain as to who are the persons eligible for regularization of unauthorized cultivation of land and for 57 its allotment and accordingly, the Committee has to make its recommendations. Being the Chairman of the Committee and the sitting MLA, accused No.1 cannot now contend that it is only the recommendary body and he has been misguided by furnishing wrong particulars by the persons of the Revenue Department.
The land belongs to the Government. Great responsibility is cast on the Committee to verify whether the persons applying for such regularization and allotment are really entitled and that they have complied with the requirements of relevant provisions of the Karnataka Land Revenue Act and Rules. Therefore, the contention that by furnishing wrong information the Chairman and Members of the Committee were mislead cannot be accepted at this stage, when the matter is still under investigation.
24. It is also the contention of the petitioners that filing of complaint and registration of FIR as against the petitioners is politically motivated. The persons belonging to the Congress party were also the members of the Committee, but their names are not at all mentioned in 58 the complaint and that FIR is also not registered against them. On this ground also petitioners have sought for quashing of the proceedings.
In this connection I am of the view that it is for the investigating officer to investigate as to who are all the persons involved in this scam and to collect material. As per the provisions of Criminal Procedure Code, it is the power of the Investigating Officer either to arraign some other persons as accused, if sufficient material is found during investigation against them or to drop the names of some of the accused persons whose names are already there in the FIR, before filing charge sheet before the Court. Apart from that, even during the trial, after recording evidence, the Court can invoke Section 319 of Cr.P.C. for arraigning some of the persons as accused if sufficient material is found against them. Therefore, simply because the persons belonging to the Congress party are also the members of the Committee and their names are not included in the complaint and FIR, the complaint and FIR as against the petitioners herein cannot be quashed.
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25. Sri.B.V.Acharya, learned Senior Counsel also contended that the Chairman of the Committee who was the sitting MLA was a public servant as on the date of the alleged offence and sanction under Section 197 of Cr.P.C. is required for initiation of criminal proceedings and to proceed with the matter. In this regard, in the judgment of the Privy Council in the case of The King Emperor Vs. Khawaja Nazir Ahmad, referred to above, it has been held by their Lordships that, 'In a case of the prosecution of a public servant for an offence while acting or purporting to act in the discharge of his official duty no sanction is required prior to the police holding an investigation although the subsequent initiation of such prosecution may require such sanction.' Therefore, at this stage, as the case is still in the investigation stage, sanction is not required.
26. In the cases on hand, apart from the offences under the Indian Penal Code, the offences under the provisions of the Prevention of Corruption Act, 1988 are also alleged. Their Lordships' of the Hon'ble Apex Court in 60 the decision reported in (2004)1 SCC 691 in the case of State of M.P. Vs. Awadh Kishore Gupta and others have observed that, when investigation is not completed, quashing of investigation and proceedings by invoking Section 482 of Cr.P.C. is not proper. Considering both legal and factual aspects of the matter, I am of the opinion that this Court cannot quash the proceedings in these cases by invoking Articles 226 and 227 of the Constitution of India r/w Section 482 of Cr.P.C.
Hence, petitions are hereby dismissed. Accordingly, interim order of stay granted by this Court in all the petitions stands vacated.
Sd/-
JUDGE bkp