Abhay Kumar vs Sujit and Others

Budihal R.B., J.—1. This petition is filed by the petitioner under Articles 226 and 227 of the Constitution of India r/w Section 482 of Cr.P.C.

Petitioner filed the above petition seeking issuance of writ of certiorari or any other appropriate writ to quash the order of the learned 4th Addl. District and Sessions judge, Belgaum in private complaint bearing PCR No. 18/2012 dated 19.11.2012 produced as per Annexure ''B'' and also private complaint bearing PCR No. 18/2012 produced at Annexure A and also to issue a writ of certiorari or any other appropriate writ to quash the FIR No. 14/2012 dated 20.11.2012 produced at Annexure ''C'' registered by Lokayuktha Police Station, Belgaum against the petitioner on the basis of referral of the private complaint.

The brief facts leading to filing of the petition are that, respondent No. 1 filed a private complaint bearing No. 18/2012 on the file of the 4th Additional Sessions Judge, Belgaum alleging that petitioner being a public servant, during the period of his office, was in possession of property disproportionate to his known sources of income and as a public servant, would not be in a position to satisfactorily account for the pecuniary resources in amassing the said wealth and as such, he has committed criminal misconduct while holding such office and committed an offence under Section 13(1)(e) of the Prevention of Corruption Act, 1988 punishable under Section 13(2) of the Prevention of Corruption Act, 1988 while holding such office. The 4th Additional Sessions Judge, Belgaum who is also a special Judge under the prevention of Corruption Act, by order dated 19.11.2012 had referred the complaint to the Superintendent of Police, Lokayuktha, Belgaum District for investigation under Section 156(3) of Code of Criminal Procedure 1973. Pursuant to which, the lokayuktha police, Belgaum registered FIR in Case No. 14/2012 for the aforesaid offences. Aggrieved by the same, petitioner has filed the above petition.

The details of the properties alleged to have been acquired by the petitioner, during his tenure as a public servant, are narrated in the private complaint in detail. Therefore, it is not necessary to repeat the same again in this order.

The learned single Judge Hon''ble Mr. Justice Anand Byrareddy, after hearing arguments of the learned counsel for the parties and taking note of the factum that accused is no more a public servant (M.L.A) and referring to his lordship''s own decision rendered in Murugesh R Nirani v. A. Alam Pasha (Crl.P. No. 1598/2013 dated 21.5.2013) and also the decision rendered by Hon''ble Mr. Justice K.N. Keshavanarayana in Babu Rao Chmchanasur v. State, by the Lokayuktha Police ( : 2013 (3) K.LJ. 480) has observed in paragraph No. 5 of the order as under:

"5. In view of the reasoning on which the petition in Murugesh Nirani, supra, has been dismissed and since the same is not in consonance with the decision in Babu Rao Chinchanasur v. State supra, it is necessary for a larger bench to express its opinion on the question that if a public servant is no longer in office as on date, whether it would be necessary for the courts to examine whether on account of such infirmity, there was prejudice caused to the accused warranting the quashing of the entire proceedings, only to be followed by another complaint on the same allegations requiring the concerned court to go through the very same motions albeit without the necessity for such a sanction."

Thereafter, the registry placed the matter before the Hon''ble Chief Justice for orders and the Hon''ble Chief Justice ordered to place the matter before the Division Bench. The Division Bench of this Court, after hearing the learned counsel on both sides, so also, considering the decisions passed by learned single Judges Hon''ble Sri justice Anand Byrareddy and Hon''ble Sri Justice K.N. Keshavanarayana and also referring to the other decisions of the Hon''ble High Courts and Supreme Court of India, ultimately held at paragraph No. 14 of the order of the Division Bench dated 21.10.2014 to the following effect:

"Since the petitioner/accused is no more a public servant, the contention of the accused that the complaint filed against the accused without obtaining valid sanction as required under Section 19 of the Prevention of Corruption Act falls to the ground. In other words, the question of obtaining sanction is no longer relevant."

The registry has again placed the matter before me, having the roster in respect of the said subject.

Heard the arguments of Sri Kiran Javali, learned senior counsel appearing on behalf of Sri Raviraj C. Patil, advocate for the petitioner and also heard the learned standing counsel appearing for the respondents.

The learned senior counsel during the course of his arguments submitted that even though the Hon''ble Division Bench gave its opinion on the reference made regarding the necessity/or not of the sanction order as required under Section 19 of the Prevention of Corruption Act that it is not necessary to obtain the sanction since the petitioner has ceased to be a public servant as of now, when the complaint was filed by respondent No. 1, petitioner herein was a public servant. Hence, obtaining sanction and producing the same along with the private complaint was necessary and it is a mandatory requirement of law and hence, the complaint is not maintainable. The learned senior counsel also made the submission that when the private complaint was filed, the learned special Judge without application of mind and even without perusing the averments in the complaint, has mechanically referred the matter to investigation by the Lokayuktha police as per Section 156(3) of the Code of Criminal Procedure. It is submitted that even if the matter is referred to the Lokalyuktha police for investigation under the said provision, the learned special Judge ought to have applied his mind to the averments/allegations made in the complaint and to satisfy himself that the matter requires investigation by the police. The learned senior counsel submitted that on this count itself, the order passed by the learned special Judge is illegal and not sustainable in law. Hence, he submits to allow the petition and to set aside the order passed by the special Judge by dismissing a complaint and to grant the reliefs as prayed for in the petition. In support of his contention, the learned senior counsel has relied upon the decisions filed along with list of authorities dated 22.7.2014.

Per-contra, the learned standing counsel appearing for the respondents, during the course of his arguments submitted that when the matter was referred to the Division Bench of this Court to give its opinion as to whether obtaining sanction at the time of filing the complaint was necessary, the Hon''ble Division Bench has already given its opinion that since the petitioner-accused is no more a public servant as of now, the question of obtaining sanction does not arise at all. Hence, the learned standing counsel submitted that admittedly, even according to petitioner-accused he ceased to be a public servant and even if sanction was not obtained and produced along with the complaint, it will not come in the way of the complainant filing the complaint and the learned special Judge passing the order to refer the matter to the Lokayuktha police for investigation. The learned standing counsel further submitted that the matter was referred for investigation and cognizance was not taken in the matter. Therefore, there is no illegality committed by the learned Special Judge in referring the matter as per Section 156(3) of the Cr.P.C. to the Lokayuktha police. Hence, he submitted that petitioner has not made out any grounds to set aside the order of the learned special Judge, so also, for dismissing the complaint or quashing of all the proceedings as prayed for in the petition.

I have perused the private complaint filed by respondent No. 1, the order passed by the learned special Judge dated 19.11.2012 and also perused the documents marked as annexures by the petitioner, which are referred in this petition, so also, I have perused the decisions relied upon by the learned counsel appearing for the petitioner.

After receiving the complaint, the learned special Judge, firstly orders for registering the complaint in P.C. register and then the learned Special Judge has referred the matter to the Superintendent of Police, Lokayuktha, Belgaum district, Belgaum to investigate and submit the report. In view of the contention raised by the petitioner-accused herein that the learned special Judge has not applied his mind and has mechanically referred the matter for investigation, let me examine the requirements of Section 156 or Section 200 of Cr.P.C. for referring the matter for investigation. In this connection, I refer to the decision of the learned single Judge of this Court dated 13.2.2013 rendered in the case of Sri Babu Rao Chmchanasur v. The State by Lokayuktha police in Crl.P. No. 3/2013 wherein, the learned single Judge has observed in paragraph Nos. 10, 11 and 12 of the said decision as under:

"10) The question as to whether the Magistrate at the time of referring the complaint to the police under Section 156(3) of Cr.P.C. for investigation is required to apply his mind to the allegations made in the complaint, came-up for consideration before a Division Bench of this Court in the case of Guruduth Prabhu and Others - v. - M.S. Krishna Bhat and others [, 1999 Crl.L.J. 3909], wherein, Their Lordships referring to the provisions of Sections 156 and 157 of Cr.P.C. have held that the Magistrate should apply his mind and find-out whether the allegations made in the complaint filed under Section 200 of Cr.P.C. discloses an offence. The relevant observations in this regard are found in Para-11, which reads as under:--

"Sub-section (3) of Section 156 Cr.P.C. empowers Magistrate to order an investigation. Under Section 157(1), Cr.P.C. an officer in charge of a Police Station having reason to suspect the commission of an offence which he is empowered under Section 156, Cr.P.C. to investigate should send a report to the Magistrate empowered to take cognizance of the offence upon a Police report and should proceed in person or depute one of his prescribed deputies to proceed to the spot to investigate under Section 157(1)(a) when the offender is named and if the case is not of a serious nature the officer need proceed in person or depute his subordinate. Under Section 157(1)(b) if it appears to such Police Officer that there is no sufficient ground for entering on an investigation he shall not investigate the case and the officer should inform the complainant under the prescribed manner. Thus, the Police Officer who is empowered to investigate on the information received by him of the commission of a cognizable offence can decide whether there is no sufficient ground for entering into an investigation and if there is no sufficient ground he should not investigate the case. But once the Magistrate orders an investigation under Section 156(3), Cr.P.C. the Police Officer is bound to investigate the matter and there is no question of his deciding not to investigate. Thus, by an order of the Magistrate under Section 156(3) the discretion given to the Police Officer under the Section 157 is taken away. It is therefore very important that the Magistrate applies his mind and finds that the allegations made in the complaint filed under Section 200, Cr.P.C. before him discloses an offence. If every complaint filed under Section 200, Cr.P.C. is referred to the police under Section 156(3) without application of mind about the disclosure of an offence, there is every likelihood of unscrupulous complainants in order to harass the alleged accused named by them in their complaints making bald allegations just to see that the alleged accused are harassed by the police who have no other go except to investigate as ordered by the Magistrate. Therefore, it is mandatory for the Magistrate to apply his mind to the allegations made in the complaint and in only cases which disclose an offence, the Magistrate gets jurisdiction to order an investigation by the police if he does not take cognizance of the offence. xxxx".

11) In the case of Muksud Saiyed v. State of Gujarat and Others [, (2008) 5 SCC 668], the Apex Court has considered the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) of Cr.P.C. and has observed thus in Para-13:--

"Where a jurisdiction is exercised on a compliant petition filed in terms of Section 156(3) or Section a complaint under Section 200 Cr.P.C. of the Code of Criminal Procedure, the magistrate is required to apply his mind. Xxxx".

12) Reading of Section 5 of P.C. Act makes it clear that the Special Judge is deemed to be a Magistrate.

13) In the light of the above decisions, it is mandatory on the part of the Special Judge to apply his mind to the allegations made in the complaint to find- out as to whether it discloses any offence and whether it is necessary to refer the complaint to the police for investigation."

I am also referring to the decision of the Hon''ble Supreme Court reported in , (2013) 10 SCC 705 wherein their Lordships'' have held as under:

"Held:

Where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C. the Magistrate is required to apply his mind, and in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) Cr.P.C. for investigation against a public servant without a valid sanction order under Section 19(1) of the Prevention of Corruption Act, 1988(PC Act). The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighted with the Magistrate to order investigation under Section 156(3) Cr.P.C. should be reflected in the order, though a detailed expression of his views is neither required nor warranted. The Special Judge/Magistrate in the present case, has stated no reasons for ordering investigation."

I have perused the order passed by the Special Judge while referring the complaint to the Lokayuktha police for investigation, which order is produced along with the petition as per Annexure ''B'' and it reads as under:

"Private complaint filed under Section 200 Cr.P.C. (Under section 13(1)(e) of the Prevention of Corruption Act 1988 which is punishable under section 13(2) of the Prevention of Corruption Act 1988; while holding the office of the public servant without any public interest.)

Submitted:

20-11-2012.

Extract of the order dated 19-11-2012 passed by the IV Addl. Sessions Judge, Belgaum on the private complaint filed by complainant through R.G. Patil, Advocate.

"Complainant present and submitted the complaint in open Court through his counsel. Check and Register in P.C. Register.

Refer the matter U/s. 156(3) Cr.P.C. to S.P. Lokayukta, Belgaum, for investigation. Await report by 28/12"

Sd/- 19/11/12. IV Addl. Dist & Sessions Judge, Belgaum."

Looking to the order passed by the learned Special Judge, it clearly shows that even without referring to the complaint averments, the learned Special judge has referred the matter to S.P., Lokayuktha, Belgaum for investigation. Looking to this aspect of the matter, the learned senior counsel is justified in making his submission that the order of referring the matter for investigation as per Section 156(3) of Cr.P.C. is mechanical and without application of mind. Looking to the principles enunciated in the decision of the Hon''ble Apex Court, referred to above, I am of the opinion that the order passed by the learned Special Judge dated 19.11.2012 is not in compliance with the mandatory requirements of Section 156(3) or Section 200 of Cr.P.C. Therefore, it is not sustainable in law. When the very order of reference for investigation itself is illegal and not sustainable in law, the question of going through other contentions will not survive for consideration.

Hence, petition is allowed. The order dated 19.11.2012 passed by the learned Special Judge, Belgaum in Private Complaint No. 18/2012 so also, FIR No. 14/2012 dated 20.11.2012 produced as per Annexure ''C registered by the Lokayuktha police, Belgaum are hereby quashed. The matter is sent back to the learned special Judge, Belgaum to consider the matter afresh, in view of the mandatory requirements of law, as discussed above and to pass appropriate orders in accordance with law, in the said private complaint.