1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JUNE 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7744 OF 2016 C/W CRIMINAL PETITION NO.7927 OF 2016 IN CRIMINAL PETITION NO.7744 OF 2016 BETWEEN: 1. SRI. M.P. KUSHALAPPA SON OF LATE POOVAIAH AGED ABOUT 57 YEARS RESIDING AT 'KAMADENU NILAYA' MEENPET, VIRAJPET - 571[SECTION] KODAGU DISTRICT 2. MR KELAPANDA SUDIR SON OF LATE CHANGAPPA AGED ABOUT 60 YEARS RESIDING AT MAYAMUDI VILLAGE & POST VIRAJPET TALUK - 571[SECTION] KODAGU DISTRICT 3. MR PUTTA SWAMY SON OF LATE SIDDAIAH AGED ABOUT 48 YEARS RESIDING AT THITIMATI VILLAGE & POST VIRAJPET TALUK - 571 254 KODAGU DISTRICT 2 4 MRS MANDEPANDA MAINA WIFE OF MANDEPANDA HARISH AGED ABOUT 43 YEARS RESIDING AT BYRAMBADA VILLAGE AMAATHI ONTIANGADI POST VIRAJPET TALUK - 571 2[SECTION] KODAGU DISTRICT PETITIONERS (BY SRI: S.SREEVATSA, SENIOR ADVOCATE FOR SRI: M.G.S. KAMAL, ADVOCATE) AND 1. STATE OF KARNATAKA DEPARTMENT OF HOME AFFAIRS VIDHANA SOUDHA BANGALORE - 560001 REPRESENTED BY ITS PRINCIPAL SECRETARY 2. ADDITIONAL DIRECTOR GENERAL OF POLICE LOKAYUKTHA M.S. BUILDING BENGALURU - 560001 3. SUPERINTENDENT OF POLICE LOKAYUKTHA, MYSORE -570 001. 4. INSPECTOR OF POLICE LOKAYUKTHA MADIKERI-571 201. 5. SRI A K SUBBAIHA EX-MEMBER OF LEGISLATIVE COUNCIL PRESENTLY RESIDING AT BELLUR VILLAGE VIRAJPET TALUK-571[SECTION]. RESPONDENTS 3 (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; SRI: VENKATESH P. DALAWAI, SPL SPP FOR R2 TO R4; R5-SERVED AND UNREPRESENTED) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE COMPLAINT DATED 20.03.20[SECTION] FILED BY RESPONDENT NO.5 AND FIR REGISTERED IN CR. NO.3/20[SECTION] ON 8.4.2016 AT ANNEXURE-A AND B BEFORE THE PRL. S.J., KODAGU, MADIKERI AND ETC. IN CRIMINAL PETITION NO.7927 OF 2016 BETWEEN: V HANUMANTHARAYAPPA AGED ABOUT 33 YEARS, S/O VENKATACHALAIAH, WORKING AS TAHSILDAR GRADE - I KANAKAPURA TALUK RAMANAGARA DISTRICT-562[SECTION]7. PETITIONER (BY SRI: P PRASANNA KUMAR, ADVOCATE) AND 1. STATE OF KARNATAKA DEPARTMENT OF HOME AFFAIRS, VIDHANA SOUDHA, BENGALURU - 560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY. 4 2. ADDITIONAL DIRECTOR GENERAL OF POLICE LOKAYUKTA, M.S.BUILDINGS, DR AMBEDKAR VEEDHI, BENGALURU - 560 001. 3. SUPERINTENDENT OF POLICE LOKAYUKTA, MYSORE - 570 001. 4. INSPECTOR OF POLICE LOKAYUKTA, MADIKERI - 571 201. 5. SRI A K SUBBAIAH EX-MEMBER OF LEGISLATIVE COUNCIL, PRESENTLY R/AT BELLUR VILLAGE, VIRAJPET TALUK - 571 [SECTION]. RESPONDENTS (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; SRI: VENKATESH S ARABATTI, SPL PP FOR R2 TO R4; R5-SERVED AND UNREPRESENTED) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH COMPLAINT DATED 20.03.20[SECTION] FILED RESPONDENT NO.5 AND FIR REGISTERED IN CR.NO.3/20[SECTION] ON 08.04.20[SECTION] AT ANNEXURES-A AND B ON THE FILE OF PRL. S.J., KODAGU, MADIKERI AND ETC. THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:- 5 ORDER
A committee popularly known as 'Akrama Sakrama Committee' was constituted by the Government of Karnataka under [SECTION] of [ACT] r/w.[SECTION] of the [ACT] for [ENTITY], for the purpose of grant of land under [SECTION] of the [ACT] which provided for regularization of unauthorized occupation of lands. The said Committee comprised of accused Nos.1 to 4 (petitioners in [CASE NUMBER]) who were nominated by the Government of Karnataka and also accused No.5 (petitioner in [CASE NUMBER]) in his capacity as the Tahsildar of the said Taluk. Accused No.1 was the Chairman of the Committee and accused Nos.2 to 4 were the members of the Committee. The said Committee was formed under Notification No.RD 43 LGO [SECTION]8 dt.27.[SECTION].[SECTION]9. Accused Nos.1 to 4 were appointed as Chairman and members respectively of the said committee by Notification No.RD 43 LGO [SECTION]8 dated [SECTION].3.20[SECTION].
2. Respondent No.5 lodged a complaint with respondent No.2 viz. The [ENTITY] Bengaluru on 20.3.20[SECTION] alleging serious misconduct by the members of the Committee. Respondent No.2 forwarded the complaint to respondent No.3 on 1.4.20[SECTION] directing him to conduct preliminary enquiry. The preliminary enquiry revealed a prima facie case. A report was submitted to respondent No.2 on 3.4.20[SECTION]. Considering the said report, respondent No.2 directed respondent No.4, the Inspector of Police [ENTITY], Madikeri, to register a case. The same was registered in Crime No.3/20[SECTION]. Respondent No.4 conducted investigation in the matter and submitted charge sheet before the Special Judge against the petitioners.
3. According to the prosecution, investigation revealed that 9(nine) ineligible beneficiaries were granted land measuring 44 acres in S.No.219/1, 2[SECTION](1) of Heggala Village. During the investigation it was found that Form No.53 were back dated; no endorsements were made for having received the applications; details of the receipt of applications were not forthcoming in the entry register and that the applications were not submitted within the stipulated time and were subsequently created. In addition, it was also found that there were violations of [SECTION] regarding proof of age; [SECTION] regarding income limit; [SECTION] regarding residential proof; [SECTION] regarding proof of cultivation.
4. According to the prosecution, the violations discovered during investigation prima facie disclosed the offences punishable under [SECTION]/[SECTION] of the [ACT] since accused 1 to 5 were public servants within the meaning of [SECTION] of the [ACT] at the time of commission of the offences and also the offences under [SECTION], [SECTION], [SECTION], [SECTION]/[SECTION] of [ACT].
5. On receiving the charge sheet, by order dated 23.9.2016, the Special Judge took cognizance of the above offences and issued summons to the petitioners. At that stage, accused No.5 (petitioner in [CASE NUMBER]) challenged the FIR before this Court in [CASE NUMBER]P.1788/20[SECTION]. Later, he withdrew the said petition and accordingly the petition was dismissed as withdrawn by order dated 2.3.20[SECTION]. Thereafter, Accused No.5 presented another petition in [CASE NUMBER] and Accused Nos.1 to 4 have filed [CASE NUMBER] seeking to quash the complaint dated 20.03.20[SECTION], charge sheet dated 6.9.2016 in Crime No.3/20[SECTION] and to quash the order dated 23.9.2016 passed by the Principal Sessions Judge, Kodagu, Madikere in [CASE NUMBER] taking cognizance of the offences punishable under [SECTION] of the [ACT] and [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] with [SECTION] of the [ACT] and [SECTION] of the [ACT].
6. On behalf of the petitioners in [CASE NUMBER], Sri.[ENTITY], learned Senior Counsel has advanced arguments and on behalf of the petitioner in [CASE NUMBER] Sri.[ENTITY] has canvassed arguments.
i) The sum and substance of the submissions made by the learned counsel for the petitioners is that prosecution launched against the petitioners without prior sanction under [SECTION] of [ACT] or under [SECTION] of [ENTITY] Act has vitiated the entire proceedings. The petitioners herein being public servants at the relevant point of time, the learned Special/Sessions Judge did not derive jurisdiction to take cognizance of the alleged offences without prior sanction as contemplated under [SECTION] of the [ACT] as well as [SECTION] of the [ENTITY] Act. Dilating on this point, learned Senior Counsel emphasized that the investigation in the instant case having been conducted by the [ENTITY] police under the directions of the ADGP, by virtue of [SECTION] of the [ENTITY] Act, requirement of passing an order under [SECTION] of the [ENTITY] Act was indispensable as it partook the character of sanction. This mandatory requirement has not been complied with by the prosecution, as a result the Special Judge could not have assumed jurisdiction to proceed in the matter.
This lapse has vitiated the entire proceedings.
ii) Secondly, the material on record does not disclose the ingredients of the offences alleged against the petitioners. No material has been collected by the prosecution to show misappropriation of public funds by the petitioners. There is no material to show that the allottees were related to the petitioners. There being no proof to show the receipt of illegal gratification by the petitioners, there was no basis for the [ENTITY] police to submit chargesheet against the petitioners. The allegations made against the petitioners are patently false and are motivated. The complaint is engineered by the second respondent out of political animosity. In the absence of any prima facie material making out the ingredients of the alleged offences, the continuance of the prosecution is a sheer abuse of process of Court.
iii) Thirdly, the offences under the provisions of the [ACT] are added at the instance of the 5th respondent without there being any material to substantiate the accusation. In the absence of any material to substantiate these allegations, the prosecution launched against the petitioners is illegal and cannot be sustained in the eye of law.
iv) Fourthly, as on the date of receipt of the applications by the beneficiaries, the Committee was not in existence. The applications were submitted by the beneficiaries in the month of February [SECTION]9, whereas, the Committee was formed on 27.[SECTION].[SECTION]9. Accused No.1 was appointed as the Chairman of the Committee only on [SECTION].3.20[SECTION]. Under the said circumstance there was no basis to sustain the charge of misconduct against the petitioner.
7. Learned counsel appearing for accused No.5 (petitioner in [CASE NUMBER]), in addition to the above grounds has seriously assailed the validity of the sanction order issued by the Government for prosecution of Accused No.5 contending that the said sanction does not reflect application of mind by the sanctioning authority and it does not show that the sanctioning authority has considered the material collected by the investigating agency while according sanction for prosecution of accused No.5. In support of his submissions, learned counsel has referred to the following decisions :
1) [PRECEDENT];
2) [PRECEDENT]
8. Learned Standing Counsel appearing for respondents 2 to 4 has filed a detailed statement of objections denying the contentions urged by the petitioners interalia contending that the allegations made in the charge sheet prima facie disclose commission of the alleged offences by the petitioners. That the sanction order issued by the Government is in accordance with the requirements of law as held in various decisions rendered by the Apex Court. Insofar as the applicability of [SECTION] of the [ENTITY] Act, 1984 is concerned, learned counsel has taken up a plea that the FIR and the charge sheet are registered for various offences under the [ACT] and the [ACT] and violations of [ACT] and therefore, there is no need to follow the procedures contemplated in [SECTION], [SECTION] and [SECTION] of the [ENTITY] Act as contended. Placing reliance on the decision in the case of State of Police Inspector - vs - T.Venkatesh Murthy (AIR [SECTION]4 SC 5[SECTION]7) and State of M.P.- vs - Virendra Kumar Tripathi [([SECTION]9) [SECTION] SCC 533], it is submitted that even if there was any irregularity, error or omission in the matter of according sanction, the same does not affect the validity of the proceedings unless it has resulted in failure of justice.
9. The learned counsel for respondents 2 to 4 further emphasized that the petitioners having failed to show that the procedure adopted by the respondent has occasioned failure of justice, there is no reason to quash the impugned proceedings on the purported plea set up by the petitioners. Further, placing reliance on the decision [PRECEDENT], the learned counsel argued that a defect or illegality in investigation, however so serious, has no bearing on the competence of the court relating to cognizance or trial and thus the learned counsel sought for dismissal of the petition.
[SECTION]. I have given my thoughtful consideration to the submissions made at the Bar and have carefully gone through the impugned charge sheet and the material produced in support thereof as well as the sanction accorded by the Government for prosecution of A5. In the light of the above contentions, the points that arise for consideration are :-
i) Whether the material collected by the investigating agency prima facie disclose
commission of the offences charged against the petitioners;
2) Whether the prosecution instituted against accused Nos.1 to 4 is bad in law for want of sanction under [SECTION] of the [ENTITY] Act ?
3) Whether sanction accorded by the Government for prosecution of A5 is invalid and improper for non-consideration of crucial material?
Re.Point No.1 :
[SECTION]. Even though the petitioners have assailed the impugned proceedings on the specific contention that the materials produced by the investigating agency do not disclose the ingredients of the offences charged against them, yet a bare reading of the charge sheet and the documents enclosed thereto clearly disclose commission of the cognizable offences. In the course of investigation, incriminating material has been collected which discloses that Form No.53 were back dated. The applications purported to have been submitted by the beneficiaries did not bear any endorsement for having received it in the office of the Tahsildar; the details of the receipts or acknowledgements were not forthcoming in the entry register. The applications were found to have been submitted beyond the stipulated time. Based on this material, the investigating agency has arrived at a conclusion that there were rampant violations of [ACT] viz. [SECTION] regarding proof of age; [SECTION] regarding income limit; [SECTION] regarding residential proof and [SECTION] regarding proof of cultivation under the [ACT]. In the wake of these materials which prima facie disclose violation of the provisions of the [ACT], the contention urged by the petitioners in this regard cannot be sustained.
[SECTION]. There is no dispute with regard to the fact that the allotment in question were made by the petitioners. The role played by each of the petitioners is unearthed during the investigation. It is the specific case of the prosecution that as many as 9 (nine) beneficiaries in whose favour lands measuring 44 acres in S.No.219/1, 2[SECTION](1) of Heggala Village were granted were ineligible and did not qualify for grant of lands. Under the said circumstance, there being prima facie material on record making out the ingredients of the offences alleged against the petitioners, the first contention urged by the petitioners in this regard is liable to be rejected and is accordingly, rejected.
Re Point No.2 :
[SECTION]. Coming to the second contention regarding sanction for prosecution of the petitioners under [SECTION] of the [ENTITY] Act is concerned, in my view, the said plea is misconceived and does not deserve acceptance. No doubt, initially complaint was lodged by respondent No.5 before the Additional Director General of Police, [ENTITY] (respondent No.2), but the said complaint was forwarded to respondent No.3 with a direction to hold preliminary enquiry.
Accordingly, preliminary enquiry was conducted and having ascertained that cognizable offences were made out, respondent No.2 directed respondent No.4 viz. Inspector of [ENTITY] to register a case. FIR was registered in Crime No.3/20[SECTION] for the offences under [SECTION]/[SECTION] of [ACT] and [SECTION], [SECTION], [SECTION], [SECTION]/[SECTION] of [ACT].
[SECTION]. It is not the case of the petitioners that respondent No.4 was not a police station and registration of FIR is contrary to the provisions of the Code. The said FIR was registered under [SECTION] of [ACT] Since the competency of respondent No.4 to register the FIR is not challenged by the petitioners, I do not find it necessary to go into the validity of the proceedings initiated against the petitioners by registering the FIR under [SECTION] of [ACT] Suffice it to note that the said FIR was not registered based on the orders passed by the [ENTITY] or the [ENTITY] under [SECTION] of the [ENTITY] Act. [SECTION] of the Act reads as under :-
"[SECTION]. Initiation of prosecution.- If after investigation into any complaint the Lokayukta or an Upa-lokayukta 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."
[SECTION]. In the case on hand, as already stated above, [ENTITY] or [ENTITY] have not passed any order directing prosecution of the petitioners. On the other hand, based on the preliminary enquiry conducted by the second respondent, fourth respondent has registered a complaint. These facts therefore, go to show that the prosecution is not initiated under the provisions of the [ENTITY] Act rather the prosecution of the petitioners is initiated under the provisions of [ACT] Therefore, the provisions of [SECTION] are not applicable to the facts of the case. Hence, this contention is also rejected.
Re : Point No.3
16. Coming to the issue of sanction is concerned, in the charge sheet it is specifically stated that at the time of submission of the charge sheet, A1 to A4 ceased to be the public servants and as such, no sanction was necessary for prosecution of A1 to A4. In this context, the view of the Hon'ble Supreme Court in Subramanian Swamy - vs - Manmohan Singh and Another [(20[SECTION]) 3 SCC 64] is apposite. It states :
25. We would however, like to make it abundantly clear that if the two decisions purport to lay down that even if a public servant has ceased to hold that office as public servant which he is alleged to have abused or misused for corrupt motives, but on that date of taking cognizance of an offence alleged to have been committed by him as a public servant which he ceased to be and holds an entirely different public office which he is neither alleged to have misused or abused for corrupt motives, yet the sanction of authority competent to remove him from such latter office would be necessary before taking cognizance of the offence alleged to have been committed by the public servant while holding an office which he is alleged to have abused or misused and which he has ceased to hold, the decisions in our opinion, do not lay down the correct law and cannot be accepted as making a correct interpretation of [SECTION].
26. In [ENTITY] case, it was argued that the observations made in SCC para 25 of judgment in [ENTITY] case are obiter. While negating this submission, the Court observed:
([ENTITY] case, SCC pp. 47-48, paras 5-7) "5. Hence, it is difficult to accept the contention raised by Mr.[ENTITY], the learned Senior Counsel for the petitioner that the aforesaid finding given by this Court in [ENTITY] case is obiter.
6. Further, under [SECTION] of the [ACT], sanction is to be given by the Government or the authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. The question of obtaining sanction would arise in a case where the offence has been committed by a public servant who is holding the office and by misusing or abusing the powers of the office, he has committed the offence.
The word 'office' repeatedly used in [SECTION] would mean the 'office' which the public servant misuses or abuses by corrupt motive for which he is to be prosecuted. [SECTION] are as under:
'19.Previous sanction necessary for prosecution.- (1) No court shall take cognizance of an offence punishable under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] alleged to have been committed by a public servant, except with the previous sanction.-
a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government.
b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government
c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section(1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.' (emphasis supplied)
7. Clauses (a) and (b) of sub-section (1) specifically provide that in case of a person who is employed and is not removable from his office by the Central Government or the State Government, as the case may be, sanction to prosecute is required to be obtained either from the Central Government or the State Government. The emphasis is on the words 'who is employed' in connection with the affairs of the Union or the State Government. If he is not employed then [SECTION] nowhere provides for obtaining such sanction.
Further, under sub-section (2), the question of obtaining sanction is relatable to the time of holding the office when the offence was alleged to have been committed. In case where the person is not holding the said office as he might have retired, superannuated, be discharged or dismissed then the question of removing would not arise. Admittedly, when the alleged offence was committed, the petitioner was appointed by the Central Government. He demitted his office after completion of five years tenure. Therefore, at the relevant time when the charge-sheet was filed, the petitioner was not holding the office of the Chairman of Goa Shipyard Ltd. Hence, there is no question of obtaining any previous sanction of the Central Government."
(emphasis supplied)
17. There is no dispute with regard to the fact that as on the date of submission of charge sheet and on the date of taking cognizance of the alleged offence, only A5 was discharging his duties as a 'public servant' within the provisions/meaning of [SECTION] of the [ACT]. The requisite sanction for prosecution of A5 is accorded by the Government and the said sanction was enclosed to the charge sheet. The competency of the sanctioning authority is not under challenge. Even though the learned counsel for A5 has assailed the validity of the sanction order, but on perusal of the same, I find that the said sanction was accorded by the Governor. A perusal of the sanction order discloses that the Governor of Karnataka has independently applied his mind to the material placed before him and has granted sanction. The said proceedings therefore, cannot be challenged in view of the Constitutional immunity provided under [SECTION] of the [ACT] whereby the Governor by his constitutional position is entitled to act upon his own discretion. These proceedings do not suffer from any illegality as sought to be contended by the learned Senior Counsel for the petitioners.
18. In the light of the above discussion, I do not find any justifiable ground to quash the impugned proceedings. Consequently, the petitions are dismissed.
JUDGE rs