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K.L. Manjunath, J.—The legality and correctness of the order passed by the Special Judge for Lokayukta Cases, Bangalore City in P.C.R. No. 18/2011 referring the complaint of the second Respondent for investigation and to report, to the Superintendent of Police, Karnataka Lokayukta, Bangalore Urban, u/s 156(3) of Code of Criminal Procedure is called in question in these petitions.
We have heard Mr. Uday Lalith, learned Senior counsel for the Petitioner.
The facts leading to this case are as hereunder;
Second Respondent - Y.S.V. Datta is a sitting MLC. He presented a complaint u/s 200 of Code of Criminal Procedure,1973, before the Special Judge for Lokayukta Cases, Bangalore City. The said complaint came to be registered as P.C.R. No. 18/2011, in which it is alleged that the Petitioner has committed the offence of criminal misconduct u/s 13(l)(d) of Prevention of Corruption Act, 1988 punishable u/s 13(2) of the aforesaid Act
It is alleged in the complaint that the Petitioner as a Chief Minister of State of Karnataka and Chairman of Karnataka Neeravari Nigam by abusing his official position as a public servant has illegally exercised favouritsm for pecuniary gain and accepted higher tender of Rs. 1,032 crores of RNS Infrastructure Limited agaisnt(sic) the lowest tender of Kirloskar Brothers Limited of Rs. 1,025 crores, Rs. 1,020 crores and Rs. 1,006 crores alternatively. It is further alleged in the complaint that RNS Infrastructure suffered lack of qualification and was black listed by Himachal Pradesh Electricity Supply Co., for the period 15.2.2007 till 14.2.2012, which fact was within the knowledge of Karnataka Neeravari Nigam Ltd. It is further alleged that M/s. Murudeshwara Power Corporation, a registered Company in Karnataka under Companies Act, is a sister concern of RNS Infrastructure and that illegal gratification of Rs. 2 carores and Rs. ll crores respectively, have been paid by RNS Infrastructure through his sister concern M/s. Murudeshwara Power Corporation to M/s. Sahyadri Health Care and Diagnostic Pvt. Limited and M/s. Davalagiri(sic) Properties Pvt. Ltd., which companies are owned by two sons of the Petitioner by name B.Y. Vijayendra, B.S. Raghavendra and son-in-law R.N. Sohankumar and Anr. person by name B.S Ashwathkumar. Alleging that illegal gratification has been received by the Petitioner from the sister company of RNS Infrastructure through the aforesaid companies of his kith and kin, a private complaint was lodged with a prayer a) to refer the matter to Superintendent of Police, Office of Lokayukta, Bangalore City, Bangalore for investigation and to report u/s 156(3) Code of Criminal Procedure (b) to take cognizance of the offence, either on investigation report u/s 156 (3) Code of Criminal Procedure or on the complaint of the complainant after the adverse report u/s 156 (3) Code of Criminal Procedure in accordance with law, for the offence of criminal misconduct u/s 13(l)(d) of Prevention of Corruption Act and punish him u/s 13(2) of Prevention of Corruption Act in accordance with law.
The learned Special Judge after receiving the complaint, on perusal of the complaint and on hearing the learned Counsel for Respondent No. 2, refereed the complaint for investigation to the Superintendent of Police, Karnataka Lokayukta, Bangalore Urban u/s 156 (3) Code of Criminal Procedure by his order dated 8.8.2011.
The legality and correctness of the order passed by the Special Judge, referring the complaint of the second Respondent u/s 156 (3) of Code of Criminal Procedure is called in question in these petitions.
Though several grounds are urged in these writ petitions at the time of arguments, Sri. Uday Lalit,learned senior counsel submitted that be would confine his arguments only in regard to the Jurisdiction of the Special Judge invoking the Provision of Section 156 (3) Code of Criminal Procedure and further requested the Court to not to consider the case of the Petitioner on merits. Therefore,in the light of the submission made by the learned senior counsel, we are required to consider:
Whether the learned Special Judge has power to invoke the provision u/s 156(3) of Cr.P.C, in referring the complaint of the second Respondent to the Superintendent of Police, Karnataka Lokayukta, Bangalore City for investigation and to report?
According to Mr. Udaya Lalith, Learned Senior counsel, Section 156(3) of Code of Criminal Procedure can be invoked and exercised only by a Magistrate empowered under the Code of Criminal Procedure and not by a Special Judge appointed under the Provisions of Prevention of Corruption Act Relying on Sub-Section 3 of Section 156 of Code of Criminal Procedure contended that only a Magistrate is empowered u/s 190 to order for an investigation and therefore, the order passed by the Special Judge is liable to be quashed.
He further submitted that in view of the judgment of the Hon''ble Supreme Court in Jamiruddin Ansari Vs. Central Bureau of Investigation and Another, a private complaint cannot be referred u/s 156(3) of Code of Criminal Procedure for investigation and report Therefore, he requests the Court to set aside the order dated 8.8.2011 passed by the Special Judge for Lokayukta Cases, Bangalore City. He further contended that a Special Judge can take cognizance of the offence, if the allegations in the complaint are made out by a complainant, but the Special Judge has no power to refer the matter for investigation and report u/s 156 (3) of Cr.P.C.
Having heard the learned Counsel for the Petitioner, we are of the opinion that the judgment relied upon by him of the Hon''ble Supreme Court in Jamiruddin Ansari''s Case is not applicable to the facts of these cases for the following reasons;
The Hon''ble Supreme Court in the aforesaid case while considering the provision of Maharastra Control of Organised Crime Act, 1999, held that a Special Judge is entitled to take cognizance of offence under MCOC Act even in a private complaint after due compliance of Section 23(2) of MCOC Act According to their Lordship, in view of specific prevision of MCOC Act, a Special Judge would not get jurisdiction to refer the matter u/s 156(3) of Cr.P.C, as the complainant therein has failed to comply with the provisions of Section 23(2). Therefore, under the aforesaid circumstances, their Lordships have ruled that in order to refer the matter u/s 156(3) of Cr.P.C., a Special Judge while dealing the matter arising out of MCOC Act, 1999 has to see whether there is due compliance of Section 23(2) of the aforesaid Act But in the instant case, the Special Judge for Lokayukta Cases, Bangalore City considering the provisions of Prevention of Corruption Act, 1988 has exercised his powers u/s 156 (3) of Cr.P.C Therefore, what is required to be considered by us is whether there is any bar under the Prevention of Corruption Act, which is in para-materia with the provisions of Section 23 (2) of MCOC Act?
On perusal of the Prevention of Corruption Act, in our view, such an embargo is not there on the Special Judge. Therefore, the judgment relied upon by the learned senior counsel has no bearing to the facts of this case. If that is so, the question that arises for our consideration is:
Whether a Special Judge under the P.C. Act, 1988, can invoke the power incorporated u/s 156 (3)of Cr.P.C.
This point is no more in res integra in view of the decision of the Hon''ble Supreme Court in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, (a Constitution Bench) wherein, it is ruled that a private complaint can be entertained by the Special Judge in respect of the offences committed by public servants under Prevention of Corruption Act The Hon''ble Supreme Court has further ruled that on accepting the principles of criminal jurisprudence anyone can set or put the criminal law into motion except where the statue enacting(sic) or creating an offence indicates to the contrary. In other words, their Lordships have held that provisions of Code of Criminal Procedure can be exercised by a Special Judge except the provisions, which are clearly barred under the Act, Under the provisions of Prevention of Corruption Act, a Special Judge is not prohibited for exercising his powers u/s 156 (3) Code of Criminal Procedure When there is no exclusion of power to a Special Judge in respect of the question raised in these petitions, this Court relying upon the judgment of the Hon''ble Supreme Court in A.R. Antulay v. R.S. Nayak, has to negative the contention of the learned Senior counsel Mr. U. Lalit In addition to that, similar question was also considered by Kerala High Court in Raghunathan Vs. State of Kerala, . In the aforesaid case, the vary same question raised by the Learned senior counsel was raised and it is ruled by the Kerala High Court that Section 156 (3) of Code of Criminal Procedure can be invoked by a Special Judge on the ground that a Special Judge will enjoy all powers which a Criminal Court of original jurisdiction enjoys save and except the ones specifically denied. But further ruled that the Court of Special Judge being the Court of original criminal jurisdiction, Special Judge can send a private complaint received by him to the police for investigation u/s 156 (3) of Code of Criminal Procedure In view of what has been laid down in the aforesaid decisions, we do not find any illegality or infirmity in sending the private complaint to the police for investigation and also the police registering in ease(sic) on the basis of the private complaint referred for investigation u/s 156 (3) of Code of Criminal Procedure Further, Mr. Lalith fairly submitted that the Special Judge has right to take cognizance of the offences on a private complaint Therefore, when a Special Judge has power to take cognizance of a criminal offence on a private complaint, we cannot understand the logic in the contention of learned senior counsel that Special Judge has no power to refer the complaint u/s 156(3) of Cr. P.C. to the police for investigation and report. Therefore, the grounds urged by the learned Counsel for the Petitioner has to be rejected.
In the result, we do not see any merits in these petitions. Accordingly, the petitions are rejected.