L. Narayana Swamy vs State Of Karnataka & Ors

On the basis of the aforesaid allegations, prayer was made in the complaint to secure the presence of accused persons and the complaint be referred to the Karnataka Lokayukta Police for investigation under Section 156(3) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') since the case required investigatory powers to unearth several other documents relating to the case.

The District and Sessions Judge, Bellari passed order dated June 14, 2003 on the said complaint thereby referring the same to the Police Inspector, Karnataka Lokayukta Police, Bellary for further investigation under Section 156(3) of Cr.P.C. The jurisdictional police registered the aforesaid case as Crime No. 9/2013 under Section 13(1)(d) read with Section 13(2) of the P.C. Act and Sections 120(b), 427, 447 and 506 read with Section 34 of the Indian Penal Code, 1860. The appellants herein, along with four other persons, filed Criminal Petition No. 10864 of 2013 before the High Court of Karnataka seeking quashing of the said proceedings. In this petition, order dated July 08, 2013 was passed observing that during the pendency of the matter, since the Police had filed a final report, those petitioners were at liberty to challenge the final report before the trial court.

The above view taken by the High Court is contrary to the judgments of this Court in Manharibhai Muljibhai Kakadia and Anil Kumar. In Manharibhai Muljibhai Kakadia, the facts were that the respondent filed before the CJM a criminal complaint alleging that the appellant had, by doing the acts stated, committed the offences punishable under Sections 420, 467, 468, 471 and 120-B IPC. The CJM, in exercise of his power under Section 202 CrPC by his order dated 18.06.2004 directed an enquiry to be made by a police inspector. The investigating officer investigated into the matter and submitted a compliant summary report opining that no offence was made out. The CJM on 16.04.2005 accepted that report and dismissed the complaint. The respondent complainant filed a criminal revision petition thereagainst under Section 397 read with Section 401 CrPC before the High Court. The appellants then made an application seeking their impleadment as respondents in the revision proceedings so that they could be heard in the matter. On 05.08.2005, the High Court dismissed that application. Against that order, appeal was heard by special leave. This Court set aside the order of the High Court permitting the appellants to be impleaded in the revision proceedings. The Court took note of the provisions of Cr.P.C. i.e. Section 202, which does not permit an accused person to intervene in the course of inquiry by the Magistrate. However, it was held that even while directing inquiry, the Magistrate applies his judicial mind on the complaint and, therefore, it would amount to taking cognizance of the matter. In this context, the Court explained the word “cognizance” in the following manner:

The aforesaid judgments referred to by the appellants state the general proposition of law and purpose behind Section 19 of the P.C. Act. On the other hand, the question that needs to be answered is concerned, we find that it had same very question came up for consideration in Abhay Singh Chautala v. Central Bureau of Investigation[5]. In that case, the appellants were MLAs when charges under the P.C. Act were framed against them. However the charges pertained to wrongdoing committed during earlier periods of time during which they had also been MLAs or MPs. The charges did not pertain to their current tenure as MLAs during which the charges were framed and trial initiated. On the date when charges were framed no sanction under Section 19, P.C. Act was obtained. An objection regarding the absence of sanction was raised before the Special Judge, who in the common order held that the charge-sheet did not contain the allegation that the appellants had abused their current office as MLAs and, therefore, no sanction was necessary. The High Court by the impugned order under Section 482 Cr.P.C. did not interfere with the said prosecution. This Court put its imprimatur to the aforesaid view of the High Court thereby dismissing the appeals. After discussing catena of judgments, it was held that even when the appellants in that case held more than one offices during the check period which they are alleged to have abused; however, there will be no requirement of sanction if on the date when the cognizance is taken, they are not continuing to hold that very office. It was held that the relevant time is the date on which the cognizance is taken. If on that date, the appellant was not a public servant, there was no question of any sanction. It was also held that even if he continues to be a public servant but in a different capacity or is holding a different office than the one which is alleged to have been abused, still there would be no question of sanction. This can be found from the reading of paragraphs 54 and 56 of the judgment which we reproduce below:

Where the alleged misconduct is in some different capacity than the one which is held at the time of taking cognizance, there will be no necessity to take the sanction.

The aforesaid discussion leads us to the conclusion that the judgment of the High Court though on the issue of obtaining the sanction at the time of taking cognizance may not be correct insofar as question No.1 formulated above is concerned, in the facts of the present case, insofar as question No.2 is concerned, it is rightly decided. Effect thereof would be to hold that sanction was not needed as the appellants, at the time of taking cognizance, were not holding the post which is alleged to have been misused.

As a consequence, these appeals fail and are, accordingly, dismissed with no order as to costs.

SEPTEMBER 06, 2016.