Karnataka High Court
Mohammed Saleem vs State Of Karnataka By Lokayukta Police ... on 17 September, 2004
Equivalent citations: 2005CRILJ381, ILR2004KAR5143, 2005(1)KARLJ110, 2005 CRI. L. J. 381, 2004 AIR - KANT. H. C. R. 3473, (2004) ILR (KANT) (4) 5143, (2005) 1 ALLCRILR 36, (2005) 1 KANT LJ 110, (2005) 1 CURCRIR 494, (2005) 1 KCCR 212, (2005) 1 CRIMES 583
Author: Huluvadi G. Ramesh
Bench: Huluvadi G. Ramesh
ORDER Huluvadi G. Ramesh, J.
1. The petitioner has sought for quashing of the order dated 13.8.2002 passed by the XXIII Additional Sessions Judge, Bangalore, in Spl. C.C. No. 443/02 taking cognizance and issuing summons for the offences under Sections 7, 13(l)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
2. The petitioner was working as a Deputy Registrar of Co-operative Societies and during 1996-97. He was on deputation (O.O.D.) as a Manager Janatha Bazar, K.G. Road, Bangalore. One N.L. Gangadhar had complained to the Lokayukta police stating that the petitioner was demanding bribe to do an official favour. A trap was laid and the case was registered by the Lokayukta police in Crime No.3/1997 for the offences under Sections 7, 13(l)(d) read with Section 13(2) of the Prevention of Corruption Act. After the investigation, Lokayukta placed the matter before the Government for obtaining the sanction to prosecute the petitioner. It appears that the Government refused to grant sanction to prosecute the petitioner and ordered an enquiry by the Upalokayukta by order dated 22.01.1998. The Government did not accord the sanction as required under Section 19 of the Prevention of Corruption Act. Hence, 'B' report came to be filed against the same. Notice was issued to the complainant although complainant appeared and engaged the counsel when the matter was set, up for to file objections to 'B' report and although the matter was adjourned for several times, neither the complainant nor the counsel had appeared before the Special Court. As such for want of sanction, the Special Court closed the case and accepted the 'B' report. Further in the meanwhile, when the matter was referred to Upalokayukta, the Upalokayukta after going through the investigation papers and materials had held that there is a prima-facie case/material to proceed against the petitioner to prosecute under Section 7, 13(l)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988, and proceeded to accord sanction to prosecute the petitioner acting under Section 14 of the Lokayukta Act, 1984. Meanwhile, the Upalokayukta had also ordered to hold D.E. against the petitioner. Again the Government by order dated 16.10.2000, ordered not to accept the report of the Lokayukta to hold D.E. and to close the matter.
3. Further the Lokayukta Police based on the sanction accorded by the Upalokayukta have filed the Charge sheet along with sanction before the Special Judge, Bangalore on 25.2.2004 for the offence under Section 7, 13(l)(d) r/w Section 13(2) of the prevention of Corruption Act, 1988. The only extra material produced was that the order of the Hon'ble Upalokayukta dated 15.10.2001 under Section 14 of the Karnataka Lokayukta Act, 1984, according sanction to prosecute the petitioner for the above said offences.
4. The learned Sessions Judge after having perused the material in the charge sheet placed along with the sanction order and took cognizance and issued summons. The same has been assailed in this petition on various grounds.
5. Heard the learned Counsel for the petitioner and the learned State Public Prosecutor, Sri Chandra Mouly.
6. It appears that after obtaining the order of the Upalokayukta under Section 14 of the Lokayukta Act, the investigating agency has proceeded to prosecute the petitioner as per the provisions of Section 14 of the Lokayukta Act.
7. The point that arise for consideration is whether taking cognizance and issue of process based on the sanction accorded by the Upalokayukta under Section 14 of the Act is valid or not and whether the impugned proceedings pending before the Special Court based on the sanction accorded by the Upalokayukta under Section 14 of the Act is liable to be quashed.
8. Section 14 of the Lokayukta Act, 1984, reads thus:-
"INITIATION OF PROSECUTION :- If after investigation into any complaint the Lokayukta or an Upalokayukta is satisfied that the public servant has committed any criminal offence (and should be prosecuted) in a Court of law for such offence, then, he may pass an order to that effect and initiate prosecution of the public servant concerned and if prior sanction of any authority is required for such prosecution, then, notwithstanding anything contained in any law, such sanction shall be deemed to have been granted by the appropriate authority on the date of such order."
9. It is clear from a reading of Section 14 that after investigation into the complaint, if the Lokayukta or Upalokayukta is satisfied that the public servant has committed any criminal offence, then he may pass an order to that effect and initiate prosecution against the public servant concerned and if prior sanction is necessary for such prosecution, notwithstanding anything contained in any law, the provision provides that such permission shall be deemed to have been granted by the appropriate authority.
10. Learned Counsel for the petitioner contends that for any prosecution to be launched under the Provisions of the Prevention of Corruption Act, sanction of the Government under Section 19 of the Prevention of Corruption Act is mandatory and that the provisions of the Prevention of Corruption Act are quite different from the provisions of the Karnataka Lokayukta Act, 1984, not only in the matter of investigation but also on other aspects. He further contends that once a judicial order is passed for accepting "B" Final Report and holding that there is no sanction granted by the Government as required under Section 19 of the Prevention of Corruption Act, it is hot open for the Lokayukta Police to circumvent the law by obtaining an order under Section 14 of the Lokayukta Act, 1984 from Upalokayukta and to file Charge Sheet. It is further contended that Government is the Recommendatory Body and not the Karnataka Upalokayukta, and moreover a judicial order, which is not challenged in the Higher Court, remains intact and final. He also contended that in the present case, the principles of natural justice is violated and that too without giving notice 10 the petitioner before passing the order under Section 14 of the Lokayukta Act, 1984.
11. The investigation conducted for the allegation under the Prevention of Corruption Act by the Lokayukta Police is wholly different from the investigation conducted under Section 9 of the Karnataka Lokayukta Act, and Section 14 of the Lokayukta Act is applied only to the investigation conducted under Section 9 of the Karnataka Lokayukta Act and it has no relevance and bearing on the investigation that is conducted under the provisions of Prevention of Corruption Act on the complaint to the Lokayukta Police. In the light of the observation made by this Hon'ble Court in a decision reported in ILR 2002 KAR 830, the Sanction under Section 19 of the Prevention of Corruption Act is must for prosecution of any person under the Prevention of Corruption Act.
Section 9 of the Lokayukta Act reads as follows:
"PROVISIONS RELATING TO COMPLAINTS AND INVESTIGATIONS:
1. Subject to the provisions of this Act, any person may make a complaint under this Act to the Lokayukta or an Upalokayukta.
2. Every complaint shall be made in the form of a statement supported by an affidavit and in such form and in such manner as may be prescribed,
3. Where the Lokayukta or an Upalokayukta proposes after making such preliminary inquiry as he deemed fit, to conduct any investigation under this Act, he,-
a. Shall forward a copy of the complaint to the public servant and the competent authority concerned;
b. Shall afford to such public servant an opportunity to offer his comments on such complaint;
c. May make such order as to the safe custody of documents relevant to the investigation,-as he deems fit.
4. Save as aforesaid, the procedure for conducting any such investigation shall be such, and may be held either in public or in camera, as the Lokayukta or the Upalokayukta, as the case may be, considers appropriate in the circumstances of the case.
5. The Lokayukta or the Upalokayukta may, in his discretion, refuse to investigate or cease to investigate any complaint involving a grievance or an allegation, if in his opinion,-
a. The complaint is frivolous or vexatious or is not made in good faith;
b. There are no sufficient grounds for investigating or, as the case may be, for continuing the investigation; or c. Other remedies are available to the complainant and in the circumstances of the case it would be more proper for the complainant to avail of such remedies.
6. In any case where the Lokayukta or an Upalokayukta decides not to entertain a complaint or to discontinue any investigation in respect of a complaint he shall record his reasons therefore and communicate the same to the complainant and the public servant concerned.
7. The conduct of an investigation (under this Act against a public servant) in respect of any action shall not affect such action, or any power or duty or (any other public servant) to take further action with respect to any matter subject to the investigation.
12. Therefore, the order under Section 14 of the Lokayukta Act has no bearing as the offences alleged were registered and investigated by the Lokayukta Police in the usual course and not at the instance or on the direction of Upalokayukta or Lokayukta. Viewed from any angle, the order of taking cognizance for the offences under Sections 7, 13(l)(d) r/w. Section 13(2) of the Prevention of Corruption Act against the petitioner without an order of Sanction under Section 19 of the Prevention of Corruption Act vitiates the whole proceedings and the same is liable to be quashed, since the investigation was proceeded on the basis of the complaints to the Lokayukta Police which has proceeded to investigate as empowered as per Section 17 of Prevention of Corruption Act, 1988.
13. The learned Sessions Judge while accepting the "B" report produced by the Lokayukta Police, came to conclusion that, as there is no sanction under Section 19 of the Prevention of Corruption Act, he could not take cognizance. He further directed the Lokayukta Police to refund the seized amount to the concerned after the period of appeal or review application is over and to destroy the other seized articles.
14. The Lokayukta Act 1984 is being enacted on the assent of the President of India for making enquiries into administrative action, relatable to matters specified in the Seventh Schedule, i.e., List II and III of the 7lh Schedule to the Constitution of India by or on behalf of the Government of Karnataka or certain public Authorities. Further the Karnataka Lokayukta Act, 1984, being a special enactment has got a over-riding effect and has empowered the Lokayukta and Upalokayukta to take action against the public servants for the acts like Corruption inaction, omission or commission in connection with discharge of their duties and such other Acts and under such circumstances when said complaint is being made to the Lokayukta or Upalokayukta as per Section 9 of the Lokayukta Act has noted above. After holding an enquiry or on being satisfied with the said complaint, that prima-facie the complaint disclose any offence Lokayukta or Upalokayukta can very well pass an order, direct to investigate into the matter regarding allegations made in the complaint and on such inquiry/ investigation report to accord sanction to prosecute as per Section 14 of the Lokayukta Act. Thus on complaint to Lokayukta and Upalokayukta is concerned, such complaint would be investigated and an order would be made for prosecution by according sanction, notwithstanding anything contained in any other law, Lokayukta or Upalokayukta may accord sanction to prosecute and such sanction deemed to have been granted by the appropriate Authority.
15. In the instant case where the Lokayukta Police on the complaint filed by the complainant had registered the case for the offences under Sections 7, 13(l)(d) r/w Section 13(2) of the prevention of Corruption Act and investigated into the matter and filed the report to the Government for according sanction. The Government in the instant case after going through the matter accordingly opined that the bribe amount was not found in the body of the accused person but it was found in the drawer of the table, although hand wash of accused proved to be positive to Phenophthelene test therefore, the Government refused to accord sanction on a flimsy ground and thereafter it was opined that the matter to be referred to Upalokayukta for enquiry. On going through the matter, the Upalokayukta passed an order holding that there is prima-facie case against the petitioner for the alleged offences under Sections 7, 13(l)(d) r/w Section 13(2) of the Prevention of Corruption Act and accordingly proceeded to accord sanction. In my opinion, the order of the Upalokayukta exercising power under Section 14 of the Act in the instant case cannot be held to be valid.
16. In view of the fact that the Lokayukta Police investigated into the matter, when the charge sheet was ready to file, the Government has not properly exercised its discretion in according sanction, rather acted in a mechanical manner and refused to accord sanction and later referred the matter to the Upalokayukta to hold an enquiry and the Upalokayukta after examining the documents has held that there is prima-facie case against the petitioner, proceeded against him for the offences under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act. There is a matter to be reconsidered by the Government to accord sanction as required under Section 19 of the Prevention of the Corruption Act and to act positively in that regard. Further, the sanction accorded by the Upalokayukta is not in respect of the complaint received as per Section 9 of the Upalokayukta Act. Under Section 19 of the Prevention of Corruption Act, no Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15, except with the previous sanction by the concerned Government.
17. It is also clear from the explanation to Section 19 that, a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified Authority or with the sanction of a specified person or any requirement of a similar nature. So in view of the provisions provided under Section 19, having regard to the fact that there is prima-facie case against the petitioner, Government would have accorded sanction to prosecute the petitioner.
18. In view of the above, the impugned order taking cognizance against the petitioner for the offences under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act and issue of process against the petitioner on the strength of sanction accorded under Section 14 of the Lokayuktha Act 1984 is to be quashed.
19. Further, it is made clear that the Government shall considering the final report submitted by the Lokayukta Police, to accord sanction as required under Section 19 of the Prevention of Corruption Act and thereafter Lokayuktha Police shall move the concerned Court to prosecute the same after obtained sanction as required under Section 19 of the Prevention of Corruption Act, 1988.
20. Accordingly, the petition is allowed. The impugned order taking cognizance against the petitioner for the offences under Section 7, 13(l)(d) read with Section 13(2) of the Prevention of Corruption Act on the strength of the sanction accoided under Section 14 of Lokayukta Act is quashed. However, it is made clear, that the respondent-Lokayukta Police is at liberty to prosecute the petitioner after obtaining necessary sanction as required under Section 19 of the Prevention of Corruption Act, 1988.