H.D. Kumaraswamy vs State of Karnataka and Others

H. Billappa, J—The petitioner has filed this criminal petition under section 482 of Cr.P.C., praying to quash the proceedings initiated in PCR. No. 9/2012 and order of reference dated 4.7.2012 passed by the Special Court for Prevention of Corruption Act, Bengaluru city and registration of FIR in crime No. 60/2012, Lokayuktha Police, Bengaluru city and all consequential proceedings.

The second respondent has filed a private complaint under section 200 of Cr.P.C., before the Special Court for Prevention of Corruption Act, Bengaluru city, on 1.3.2012. It is alleged, the petitioner is a public servant. Accused Nos. 2 to 19 have joined accused No. 1 i.e., the petitioner in the commission of alleged offence. The complaint relates to de-notification of the land as ordered by the petitioner and published in the official gazette. It is alleged, the case pertains to de-notification of the land in Sy. Nos. 128 and 137 of the Halagevaderahalli Village, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru District. The land is de-notified by the petitioner. It was published in the official gazette on 1.10.2007 just one week before relinquishing of the office by the petitioner as the Chief Minister. The details are as follows:

1) Sy. No. 128 measuring 1 acre 10 guntas situated at Halage Vaderahalli village.

2) Sy. No. 137 measuring 1 acre 14 guntas situated at Halage Vaderahalli village.

It is stated, during the year 1989, the Government formulated a scheme known as Banashankari V Stage Layout for formation of residential sites. In this regard, a notification vide No. BDA/SLAO/A1/324/88-89 was published in the gazette on 6.4.1989. This notification was followed by the final notification vide No. HUD/127/MNX/1994 dated 9.5.1994 and the same was published in gazette on 18.5.1994. The owners challenged the final notification in a bunch of writ petitions bearing W.P. No. 21975/94 and W.P. No. 3759/94. This Court has delivered judgment on 19.9.1996 and 27.9.1996 quashing the final notification on the ground that it lacks sanction by the Government of Karnataka. While quashing the notification, liberty has been reserved to proceed afresh.

Thereafter, acquisition was initiated afresh by the competent authority to implement the scheme in terms of sanction accorded on 12.9.1997. The final notification was issued with the sanction of the Government vide No. UDD/436/MNX/97 dated 12.9.1997. It was published in the official gazette on 17.9.1997. The Special Land Acquisition Officer attached to the BDA, Bengaluru, initiated land acquisition proceedings in respect of Sy. Nos. 128 and 137 of Halagevaderahalli. Notices under section 9, 10, 11 and 14 of LAA, 1894 were issued calling for objections/documents. No one filed the objection statement. Sy. No. 128 was inspected by the staff of ALAO, BDA on 4.2.1998 and by the ALAO himself on 24.4.1998. Sy. No. 137 was inspected by the staff of ALAO, BDA, Bengaluru on 6.2.1998 and by the ALAO himself on 28.4.1998. The competent authority assigned with the power to complete the acquisition proceedings of the land required for formation of the layout by implementing the scheme has notified preliminary and final notifications. As per the preliminary notification, the total extent of land required for implementing the scheme is 1458 acres and 21 guntas. The extent of land sanctioned by the Government of Karnataka in the final notification dated 12.9.1997 is to the extent of 783 acres and 38 guntas.

It is stated, the authorized officer has framed the award on 28.4.1998 in respect of Sy. No. 128. The award was approved by the Deputy Commissioner (LA), BDA on 16.5.1998. As regards Sy. No. 137 of Halagevaderahalli, the award was passed on 4.5.1998 and was approved by the Deputy Commissioner (LA) BDA on 25.5.1998. Thereafter, award notice was issued and possession of the land was taken and handed over to the engineering section of the BDA on 29.9.1999 to form the layout.

It is stated, on 19.9.2005, an application was filed by accused No. 2 requesting for de-notification of the land in Sy. Nos. 128 and 137 in total an extent of 2 acres 24 guntas of which she was not the owner. The application was received by accused No. 1 and office was instructed to process it. A letter dated 7.12.2005 was addressed to the BDA calling for the report along with the sketch. In response to the same, on 30.12.2005, the BDA has furnished the details. Thereafter, the file was processed and as per note at para 7, the file was called by the office of the Chief Minister and it was submitted on 17.1.2006. At para 8, on 18.1.2006, the concerned officer has expressed that the information given by the BDA is insufficient and has suggested to place file before the de-notification committee. At para 9, it was stated specifically that possession was taken in the year 1999. Non issue of notification under section 16(2) of LA Act does not mean that possession has not been taken. A mahazar has been drawn and possession has been taken and the process is complete. The land cannot be dropped from acquisition. As per noting at para 11, the file was ordered to be closed under D. category. Once again as per para 13, the file was processed but it was returned without any orders from the Chief Minister as per para 14. As per para 15, the file was reprocessed. It was ordered to be closed as per para 16.

It is stated, on 4.9.2006, the petitioner had instructed his Secretariat as per PSCM 6744/2006 dated 4.9.2006 to secure the file. At paras 17 and 18, the petitioner has passed the order to de-notify the lands in Sy. No. 128 and 137 of Halagevaderahalli. It is alleged, the act of denotification by the petitioner is in connivance with the accused Nos. 2 to 19 and it is for the personal/pecuniary gain. A5 to A15 are close relatives/friends/associates. A16 to 19 are the firms/companies floated by A1-A15 who are the partners.

It is stated, as on 19.9.2005, the accused No. 2 was not the owner of Sy. Nos. 128 and 137 of Halagevadarahalli. The land was acquired and possession was taken by the BDA on 29.9.1999. The land was divested through the process of law. It has become final. The State of Karnataka through BDA is the absolute owner of the acquired land w.e.f. 29.9.1999. It is alleged, in furtherance of the conspiracy between the accused persons sale deeds in respect of Sy. Nos. 128 and 137 of Halagevaderahalli measuring an extent of 1 acres 10 guntas and 1 acre 14 guntas respectively were executed by A2, A3, A4 in favour of A5 Smt. K.B. Shanthamma and A6 Smt. Rekha S. Chandru on 13.12.2004 for a sum of Rs. 43,75,000/- and Rs. 47,25,000/- and it was registered in the office of the Sub-Registrar, Kengeri.

It is stated, the land was purchased by Smt. K.B. Shanthamma (A5) and Smt. Rekha S. Chandru (A6) and in turn they have sold the land in favour of accused Nos. 7 to 15 for Rs. 4,14,00,000/- on 10.3.2010. Again on 31.3.2011, a registered memorandum of understandings has been effected to share the benefits by floating the firms A16-A19.

It is stated, the act of the petitioner in summoning the file despite adverse remarks was with pre-determined intention to complete the conspiracy by misusing the office of trust held by the petitioner. The act of summoning the file, passing order, receiving the benefits by getting illegal gratification and getting the sale deed in favour of his close associates for sale consideration of Rs. 4,14,00,000/- is an offence under the provisions of the PC Act, 1988.

It is alleged, the petitioner has ordered de-notification in violation of law for illegal gratification and unlawful enrichment. The State has suffered monetary loss to the extent of Rs. 56,62,80,000/-.

It is alleged, the petitioner has passed the order of denotification in furtherance of conspiracy with the accused for personal pecuniary gain. The act of the petitioner with the aid and assistance of accused Nos. 2 to 19 is done with the common intention to achieve the goal.

The act of the petitioner in de-notifying the land is for pecuniary gain with an intention to make illegal enrichment. It amounts to an offence punishable under sections 13(1)(c), 13(1)(d), 13(1)(e), 13(2) of the Prevention of Corruption Act and sections 3 and 4 of the Karnataka Land (Restriction on Transfer) Act, 1991.

It is alleged, the petitioner was holding highest office in the Government of Karnataka as Chief Minister. It is an office of trust. The petitioner has misused and abused the office with the aid and assistance of co-accused. The gravity of offence runs with the office of trust held by the petitioner. It is used for illegal pecuniary gain, unjust enrichment by withdrawing the file from the normal procedure and passing an order de-notifying the land.

It is alleged, the land which is de-notified under section 48(1) of the Land Acquisition Act, 1984 is in contravention of the very provision. The act of de-notification has resulted in the offences punishable under section 120(B) and sections 406, 420, 463, 465, 468, 471 of IPC and sections 13(1)(c), 13(1)(d), 13(1)(e), 13(2) of Prevention of Corruption Act and sections 3 and 4 of the Karnataka Land (Restriction on Transfer) Act read with section 34 of IPC. Therefore, the complainant i.e., the second respondent has prayed to take action in accordance with law.

The XXIII Additional City Civil and Special Judge for Prevention of Corruption Act, Bengaluru City, by order dated 4.7.2012, has referred the matter for investigation under section 156(3) of Cr.P.C. to the Superintendent of Police, Lokayuktha, Bengaluru Urban.

Aggrieved by that and challenging the initiation of proceedings in PCR. No. 9/2012 and the order of reference dated 4.7.2012, the petitioner has filed this criminal petition.

The learned counsel for the petitioner contended that the impugned order does not indicate that the Special Judge has applied his mind and he was satisfied with the commission of cognizable offence. The order indicates that the counsel for the complainant was heard. There is no scope for such thing. The final notification was issued on 12.9.1997. Thereafter, there was a representation to de-notify the land. The representation was given on 19.9.2005. The petitioner was the Chief Minister from 3.2.2006 to 8.10.2007. The petitioner has given reasons for de-notifying the land. The order has been given effect to. The de-notification is dated 1.10.2007. The complaint has been lodged on 1.3.2012. The complainant is not an aggrieved party.

The sale transaction effected by accused Nos. 2 to 4 in favour of accused 5 and 6 was not known to the petitioner. After denotification accused Nos. 5 and 6 have effected one more sale transaction on 10.3.2010 in favour of accused Nos. 7 to 15. The petitioner was not the Chief Minister at that time. He has nothing to do with the alleged transaction. No notification under section 16(2) of the LA Act has been issued. The petitioner has exercised his discretion permissible under the statute. If the land is not used for the purpose for which it is acquired, the Government can consider de-notification of the said land. The act of de-notification is not illegal. It has not been challenged. The allegation of conspiracy is without any basis. The order of de-notification is bona fide.

Further he submitted that the role of an advocate at the stage of referring the matter for investigation does not come. The participation of the counsel at that stage vitiates the proceedings. The Chief Minister i.e., the petitioner has rightly ordered de-notification of the land.

Further he submitted that the order of de-notification is not an offence under the Act. The ingredients of section 120-B of IPC are not fulfilled. There is no agreement to do an illegal act or to commit an offence. There is no mens rea.

Further he submitted that the complaint is presented against the public servant. Under section 197 of Cr.P.C., prior sanction is required which is a must. The petitioner was acting in discharge of his duties when the order of de-notification was passed. The petitioner has exercised his discretion while passing the order of de-notification. The decision is not challenged. After the lapse of 4 1/2 years, the complaint has been lodged. A stranger cannot question the act of de-notification. The second respondent is a political opponent. The Trial Court has not considered the requirement of prior sanction before referring the matter for investigation. There is no subjective to satisfaction.

The learned counsel for the petitioner placing reliance on the decision of the Hon''ble Supreme Court reported in Hari Ram and Another Vs. State of Haryana and Others, (2010) 2 CTC 336 : (2010) 2 JT 235 : (2010) 2 SCALE 339 : (2010) 3 SCC 621 : (2010) 2 SCR 756 : (2011) AIRSCW 109 : (2010) 6 Supreme 450 submitted that section 48 of the Land Acquisition Act empowers the State to withdraw from acquisition proceedings provided the possession has not been taken.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in B.A. Basavaiah and Others Vs. Bangalore Development Authority and Others, AIR 2000 SC 3403 : (2000) 3 JT 161 : (2000) 9 SCC 375 : (2000) AIRSCW 1733 : (2000) 2 Supreme 237 , the learned counsel for the petitioner submitted that the de-notification cannot be challenged by a stranger on the ground that possession has been taken by the Government pursuant to acquisition proceedings particularly when as between the persons concerned i.e., the Government and the land owner there is no dispute that possession of the particular area has not been taken. It is not permissible for a stranger to contend that possession has been taken.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in Magnum Promoters P. Ltd. Vs. Union of India (UOI), (2015) 1 RCR(Civil) 765 , the learned counsel for the petitioner submitted that vesting of land under section 16 of the Act pre-supposes actual taking of possession. Until that is done, legal presumption of vesting enshrined in section 16 cannot be raised in favour of the acquiring authority.

Further placing reliance on the decision of this Court reported in The Commissioner, Bangalore Development Authority and Another Vs. State of Karnataka and Another, (2006) ILR (Kar) 318 : (2006) 1 KarLJ 1 : (2006) 1 KCCR 19 SN , the learned counsel for the petitioner submitted that if the lands similarly situated are not notified for acquisition or having been notified for acquisition excluded from acquisition, then such lands shall be excluded from acquisition.

Further placing reliance on the decision in Civil Appeal No. 4097/2010 in BONDU RAMASWAMY & Others vs. BENGALURU DEVELOPMENT AUTHORITY, the learned counsel for the petitioner submitted that in cases where lands were similarly situated to the adjoining lands which are not notified for acquisition, the Court directed if the lands of applicants are similar to those which have been excluded from acquisition, their lands should also be deleted from acquisition. Further he submitted that if small pockets of acquired lands surrounded by lands which are not acquired or which were deleted from proposed acquisition, the BDA shall consider whether such small pockets should also be deleted if they are not suitable for forming layouts.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in Leo Roy Frey Vs. The Superintendent, District Jail, Amritsar and Another, AIR 1958 SC 119 : (1958) CriLJ 260 : (1983) ECR 1674 : (1983) 13 ELT 1302 : (1958) 1 SCR 822 , the learned counsel for the petitioner submitted that the offence of conspiracy is created under IPC and it is made punishable under IPC. It is not an offence under the Land Acquisition Act. The conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Kehar Singh and Others Vs. State (Delhi Administration), AIR 1988 SC 1883 : (1989) CriLJ 1 : (1988) 3 JT 191 : (1988) 2 SCALE 117 : (1988) 3 SCC 609 : (1988) 2 SCR 24 Supp , the learned counsel for the petitioner submitted that conspiracy cannot be inferred by a group of irrelevant facts artfully arranged as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in State of Madhya Pradesh Vs. Sheetla Sahai and Others, (2009) CriLJ 4436 : (2009) 10 JT 388 : (2009) 10 SCALE 632 : (2009) 8 SCC 617 : (2009) 13 SCR 1048 : (2009) AIRSCW 5514 , the learned counsel for the petitioner submitted that to bring home the charge of criminal conspiracy, it is necessary to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.

Further placing reliance on the decision reported in Subramanian Swamy Vs. A. Raja, AIR 2012 SC 3336 : (2013) 115 CLT 144 : (2012) CriLJ 4443 : (2012) 7 JT 609 : (2012) 7 SCALE 520 : (2012) 9 SCC 257 : (2012) AIRSCW 4784 : (2012) 6 Supreme 177 , the learned counsel for the petitioner submitted that a wrong judgment or an inaccurate or incorrect approach or poor management by itself, even after due deliberations cannot be said to be a product of criminal conspiracy.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in V.C. Shukla and Others Vs. State (Delhi Administration), AIR 1980 SC 1382 : (1980) CriLJ 965 : (1980) 2 SCC 665 : (1980) SCC(Cri) 561 , the learned counsel for the petitioner submitted that to prove conspiracy, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in Anil Kumar and Others Vs. M.K. Aiyappa and Another, (2013) 6 ABR 895 : (2013) 10 AD 386 : (2014) CriLJ 1 : (2013) 13 JT 127 : (2013) 4 RCR(Criminal) 586 : (2013) 12 SCALE 283 : (2013) 10 SCC 705 , the learned counsel for the petitioner submitted that under section 156(3) of Cr.P.C., the direction to the Police to investigate the matter shall not be given mechanically. The Court has to apply its mind and the order must reflect what weighed with the Court to order for investigation. Once it was noticed that there was no previous sanction, the Court cannot order investigation against the public servant while invoking powers under section 156(3) of Cr.P.C.

Further placing reliance on the decision reported in Guruduth Prabhu and Others Vs. M.S. Krishna Bhat and Others, (1999) CriLJ 3909 , the learned counsel for the petitioner submitted that the Court should form an opinion that the complaint filed by the complainant before it discloses a cognizable offence. When the allegations made in the complaint do not disclose cognizable offence, the Court has no jurisdiction to order police investigation under sub-section (3).

Placing reliance on the decision reported in Maksud Saiyed Vs. State of Gujarat and Others, (2008) CLT 715 : (2008) 1 CTC 259 : (2007) 11 JT 276 : (2007) 11 SCALE 318 : (2008) 5 SCC 668 : (2007) 9 SCR 1113 , the learned counsel for the petitioner submitted that while exercising jurisdiction under section 156(3) of Cr.P.C., the Court is required to apply its mind.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in State of H.P. Vs. M.P. Gupta, (2003) 10 JT 32 : (2003) 10 SCALE 522 : (2004) 2 SCC 349 : (2003) 6 SCR 541 Supp , the learned counsel for the petitioner submitted that prior sanction is required to take cognizance of any offence and even in cases where retired public servant is sought to be prosecuted.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in General Officer Commanding Vs. CBI and Another, AIR 2012 SC 1890 : (2012) 2 Crimes 178 : (2012) 2 RCR(Criminal) 818 : (2012) 5 SCALE 58 : (2012) 6 SCC 228 , the learned counsel for the petitioner submitted that the Court cannot proceed without sanction of the competent statutory authority. If the law requires sanction and the Court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio for want of sanction.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in State of U.P. Vs. Paras Nath Singh, (2009) CriLJ 3069 : (2009) 13 JT 625 : (2009) 8 SCALE 553 : (2009) 6 SCC 372 : (2009) 2 SCC(L&S) 200 : (2009) 9 SCR 85 , the learned counsel for the petitioner submitted that so far as public servants are concerned, the cognizance of any offence by any Court is barred under section 197 of the Code unless sanction is obtained from the appropriate authority. The Court is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in Dr. Subramanian Swamy Vs. Dr. Manmohan Singh and Another, AIR 2012 SC 1185 : (2012) CriLJ 1519 : (2012) 2 JT 203 : (2012) 1 RCR(Criminal) 720 : (2012) 2 SCALE 12 : (2012) 3 SCC 64 : (2012) AIRSCW 1249 : (2012) 1 Supreme 577 , the learned counsel for the petitioner submitted that section 197 of the Code and section 19 of the Act operate in conceptually different fields. Without prior sanction, the complaint cannot be taken notice of.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in R. Balakrishna Pillai Vs. State of Kerala, AIR 1996 SC 901 : AIR 1995 SC 901 : (1995) 4 Crimes 704 : (1995) 9 JT 580 : (1995) 7 SCALE 255 : (1996) 1 SCC 478 : (1996) 6 SCR 236 Supp , the learned counsel for the petitioner submitted that the act alleged is directly and reasonably connected with the official duty and therefore, attracts the protection of section 197. Sanction for prosecution of a public servant is necessary even if the public servant sought to be prosecuted has ceased to be a public servant on the date of taking cognizance of the offence.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in Sankaran Moitra Vs. Sadhna Das and Another, AIR 2006 SC 1599 : (2006) 4 JT 34 : (2006) 3 SCALE 414 : (2006) 4 SCC 584 : (2006) AIRSCW 1004 : (2006) AIRSCW 1695 : (2006) 2 Supreme 454 : (2006) 4 Supreme 645 , the learned counsel for the petitioner submitted that the decision on the question of sanction cannot be postponed.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in Rakesh Kumar Mishra Vs. The State of Bihar and Others, AIR 2006 SC 820 : (2006) CriLJ 808 : (2006) 1 JT 1 : (2006) 1 SCALE 15 : (2006) 1 SCC 557 : (2006) 1 SCR 124 : (2006) AIRSCW 189 : (2006) 1 Supreme 14 , the learned counsel for the petitioner submitted that without prior sanction, very cognizance is barred i.e., the complaint cannot be taken notice of. The Court is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during the discharge of his official duty.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in AIR 2004 SC page 2179 (1) STATE OF ORISSA & Others vs. GANESH CHAND JEW, the learned counsel for the petitioner submitted that cognizance cannot be taken without prior sanction.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Kalicharan Mahapatra Vs. State of Orissa, (1998) 5 AD 561 : AIR 1998 SC 2595 : (1998) CriLJ 4003 : (1998) 5 JT 269 : (1998) 4 SCALE 359 : (1998) 6 SCC 411 : (1998) 3 SCR 961 : (1999) 2 SLJ 123 : (1998) AIRSCW 2629 : (1998) 6 Supreme 270 , the learned counsel for the petitioner submitted that under section 197 of Cr.P.C., previous sanction is made applicable to former public servants also.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in Matajog Dobey Vs. H.C. Bhari, AIR 1956 SC 44 : (1955) 28 ITR 941 : (1955) 2 SCR 925 , the learned counsel for the petitioner submitted that if there is a reasonable connection between the act and the official duty prior sanction is required.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in G. Sagar Suri and Another Vs. State of U.P. and Others, AIR 2000 SC 754 : (2000) 100 CompCas 613 : (2000) CriLJ 824 : (2000) 2 CTC 107 : (2000) 1 JT 360 : (2000) 1 SCALE 271 : (2000) 2 SCC 636 : (2000) 1 SCR 417 : (2000) AIRSCW 296 : (2000) 1 Supreme 322 , the learned counsel for the petitioner submitted that this Court has power under section 482 of the Code to quash the proceedings to prevent abuse of process of Court or otherwise to secure the ends of justice.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 : (1992) CriLJ 527 : (1990) 4 JT 650 : (1990) 2 SCALE 1066 : (1992) 1 SCC 335 Supp : (1990) 3 SCR 259 Supp , the learned counsel for the petitioner submitted that this Court can exercise its power under Article 226 or under section 482 of Cr.P.C., to quash the proceedings, if the allegations do not disclose a cognizable offence justifying an investigation by a police officer and where there is express legal bar.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Satish Mehra Vs. State of N.C.T. of Delhi and Another, AIR 2013 SC 506 : (2013) CriLJ 411 : (2013) 1 Crimes 59 : (2013) 2 RCR(Criminal) 883 : (2012) 11 SCALE 193 , the learned counsel for the petitioner submitted that the power under section 482 of Cr.P.C. can be exercised at the threshold as well as at advanced stage of trial.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in State of U.P. Vs. Mata Bhikh and Others, (1994) 1 Crimes 945 : (1994) 2 JT 565 : (1994) 2 SCALE 235 : (1994) 4 SCC 95 : (1994) 2 SCR 368 : (1994) 1 UJ 697 , the learned counsel for the petitioner submitted that a successor in office of a public servant gets into the same position of the public servant concerned. The successor in office falls within the ambit of expression ''public servant''.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in Babu Verghese and Others Vs. Bar Council of Kerala and Others, AIR 1999 SC 1281 : (1999) 2 CTC 722 : (1999) 2 JT 200 : (1999) 2 SCALE 65 : (1999) 3 SCC 422 : (1999) 1 SCR 1121 : (1999) AIRSCW 968 : (1999) 3 Supreme 34 , the learned counsel for the petitioner submitted that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.

As against this, the learned counsel for the first respondent submitted that the Special Judge has ordered for investigation. The petitioner has abused his position being a public servant. The allegations in the complaint attract section 13(c) and (d) of the Prevention of Corruption Act. Unless the investigation is done, it cannot be said whether any offence is committed or not. It is not necessary that the petitioner has received any amount for himself. There was no public interest involved. Therefore, the act of de-notification attracts section 13(d)(1) of the Prevention of Corruption Act. The Court cannot interfere with the investigation. The sections can be changed subsequent to investigation.

Further he submitted that as possession was taken, de-notification was not permissible in law. At para 10 of the note sheet it is noted that file can be closed under TT category. The petitioner was the Chief Minister at that time. The petitioner has not considered that possession was taken. Therefore, it cannot be said that the order of de-notification is an act in good faith. Section 13(d)(3) of the Prevention of Corruption Act is attracted as de-notification is not in public interest. The de-notification helps the accused persons to get pecuniary advantage.

Further he submitted that sanction was not required at the stage of referring the matter for investigation under section 156(3) of Cr.P.C. Sanction is not pre-condition to present the complaint. Investigation cannot be shut out.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Parkash Singh Badal and Another Vs. State of Punjab and Others, AIR 2007 SC 1274 : (2007) CLT 567 Supp : (2007) 1 JT 89 : (2006) 13 SCALE 54 : (2007) 1 SCC 1 : (2006) 10 SCR 197 Supp : (2007) AIRSCW 1415 : (2006) 8 Supreme 964 , the learned counsel for the 1st respondent submitted that the complaint by political rival has no bearing on investigation or complaint.

Further Placing reliance on the decision of the Hon''ble Supreme Court reported in Vinod Raghuvanshi Vs. Ajay Arora and Others, (2013) 4 JCC 2782 : (2014) 3 LLN 32 : (2013) 4 RCR(Criminal) 704 : (2013) 12 SCALE 30 : (2013) 10 SCC 581 : (2014) 1 SCC(L&S) 679 , the learned counsel for the 1st respondent submitted that the genuineness of the allegations are not necessary to be examined. It is like killing a still born child. An investigation should not be shut out at the threshold if the allegations have some substance.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in State of Orissa and Others Vs. Ujjal Kumar Burdhan, (2012) CriLJ 2015 : (2012) 2 Crimes 141 : (2012) 2 JCC 1218 : (2012) 3 SCALE 508 : (2012) 4 SCC 547 , the learned counsel for the 1st respondent submitted that the completion of investigation is a rule. The High Court cannot interfere with the investigation by by exercising the power under Section 482 of Cr.P.C.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Sushil Suri Vs. C.B.I. and Another, AIR 2011 SC 1713 : (2011) 4 CompLJ 9 : (2011) CriLJ 2939 : (2011) 2 Crimes 251 : (2011) 3 RCR(Criminal) 356 : (2011) 5 SCALE 412 : (2011) 5 SCC 708 : (2011) 2 SCC(Cri) 764 : (2011) 107 SCL 390 : (2011) 8 SCR 1 : (2011) 4 UJ 2582 : (2011) AIRSCW 2909 : (2011) 3 Supreme 654 , the learned counsel for the 1st respondent submitted that no specific overt acts are required to be alleged in the case of criminal conspiracy.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Smt. Mona Panwar Vs. The Hon''ble High Court of Judicature at Allahabad and Others, (2011) CriLJ 1619 : (2011) 1 Crimes 272 : (2011) 2 JCC 969 : (2011) 2 JT 75 : (2011) 1 RCR(Criminal) 856 : (2011) 2 SCALE 150 : (2011) 3 SCC 496 : (2011) 1 SCC(Cri) 1181 : (2011) 2 SCR 413 : (2012) AIRSCW 870 : (2011) AIRSCW 1185 : (2011) 5 Supreme 613 : (2011) 1 Supreme 663 , the learned counsel for the 1st respondent submitted that the discretion exercised by the Court to order for investigation under Section 156(3) of the Cr.P.C. cannot be interfered with even if another view is possible.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Ajoy Acharya Vs. State Bureau of Inv. against Eco. Offence, (2013) 10 AD 125 : (2013) CriLJ 4763 : (2013) 13 JT 26 : (2013) 4 RCR(Criminal) 443 : (2013) 11 SCALE 496 , the learned counsel for the 1st respondent submitted that as the petitioner does not hold the office, sanction is not required under Section 19 of the P.C. Act 1988.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Om Kr. Dhankar Vs. State of Haryana and Another, (2012) 2 CTC 871 : (2012) 167 PLR 120 : (2012) 3 SCALE 363 : (2012) 11 SCC 252 : (2013) 1 SCC(L&S) 47 : (2012) AIRSCW 1821 , the learned counsel for the 1st respondent submitted that no sanction is required under Section 197 of Cr.P.C. to prosecute the public servant for the offences punishable under sections 467, 468, 471 r/w section 120-B of IPC.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Niranjan Singh Vs. The State of Uttar Pradesh, AIR 1957 SC 142 : (1957) CriLJ 294 : (1956) 1 SCR 734 , the learned counsel for the 1st respondent submitted that irregularities in the proceedings cannot vitiate proceedings. The legislative intent must be considered.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Matajog Dobey Vs. H.C. Bhari, AIR 1956 SC 44 : (1955) 28 ITR 941 : (1955) 2 SCR 925 , the learned counsel for the 1st respondent submitted that under Section 197 of Cr.P.C. sanction is not required as soon as complaint is filed. It may arise at any subsequent stage of the proceedings.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Crl. P. No. 101017/2014 disposed of on 9.9.2014 the learned counsel for the 1st respondent submitted that sanction is required only at the time of taking cognizance based on the police report after investigation based on the private complaint.

The learned counsel for the second respondent submitted that the petitioner is trying to derail the investigation. Possession of the land has been taken. Therefore, acquisition cannot be dropped. The note sheet clearly indicates that possession was taken. The authorities have indicated that possession was taken and the land cannot be dropped from acquisition. The petitioner has deliberately ignored the notes put up. The authorities have stated that the land cannot be de-notified. The fact that the de-notification is not challenged is of no consequence for the purpose of criminal case. There is proper application of mind by the Special Judge. The Government property has been de-notified. The matter was not placed before the De-notification Committee. The judgment in Aiyappa''s case is not applicable to the facts of the present case. It has considered section 19 of the Prevention of Corruption Act. No sanction is required for the offence punishable under sections 120B, 406, 407, 409, 463, 424 and 420 of IPC. The requirement of sanction can be considered at a later stage. The sanction is not required for the offences alleged. The allegations need to be investigated. Section 16(2) notification is not required for the purpose of taking possession. The investigation cannot be stalled at this stage. The mahazar shows that possession has been taken. Possession can be taken by drawing panchanama. Prior sanction is not required.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Chandan Kumar Basu Vs. State of Bihar, (2014) 8 SCALE 351 , the learned counsel for the 2nd respondent submitted that sanction under Section 197 of Cr.P.C. need not be obtained before filing a complaint and that it can be obtained at any time.

Placing reliance on the decision in Crl. Revision Petition No. 224/2014 decided on 21.10.2014 in the case of Sri. Vinod B. Vs. K.S. Eshwarappa, the learned counsel for the 2nd respondent submitted that sanction need not be obtained prior to filing of the complaint.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Parkash Singh Badal and Another Vs. State of Punjab and Others, AIR 2007 SC 1274 : (2007) CLT 567 Supp : (2007) 1 JT 89 : (2006) 13 SCALE 54 : (2007) 1 SCC 1 : (2006) 10 SCR 197 Supp : (2007) AIRSCW 1415 : (2006) 8 Supreme 964 , the learned counsel for the 2nd respondent submitted that no sanction is required for the offences punishable under sections 420, 467, 468, 471 and 120-B of IPC.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Choudhury Parveen Sultana Vs. State of West Bengal and Another, AIR 2009 SC 1404 : (2009) CLT 563 : (2009) CriLJ 1318 : (2009) 234 ELT 196 : (2009) 1 JT 347 : (2009) 1 SCALE 374 : (2009) 3 SCC 398 : (2009) 1 SCR 99 : (2009) 2 UJ 658 : (2009) AIRSCW 861 : (2010) AIRSCW 232 : (2009) 1 Supreme 666 : (2009) 7 Supreme 107 , the learned counsel for the 2nd respondent submitted that abuse of power cannot be said to be part of official duties.

Placing reliance on the decision of the Hon''ble Supreme Court reported in State of U.P. Vs. Paras Nath Singh, (2009) CriLJ 3069 : (2009) 13 JT 625 : (2009) 8 SCALE 553 : (2009) 6 SCC 372 : (2009) 2 SCC(L&S) 200 : (2009) 9 SCR 85 , the learned counsel for the 2nd respondent submitted that sanction is not required for the offences punishable under sections 406 and 409 of IPC.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Raghunath Anant Govilkar Vs. State of Maharashtra and Others, (2008) CriLJ 2054 : (2008) 2 JT 374 : (2008) 2 SCALE 303 : (2008) 11 SCC 289 : (2008) 1 UJ 285 : (2008) AIRSCW 1375 : (2008) 1 Supreme 572 , the learned counsel for the 2nd respondent submitted that no sanction is required for the offences punishable under sections 406, 409 and 120-Bof IPC.

Placing reliance on the decisions of the Hon''ble Supreme Court reported in Kishan Singh (D) through LRs. Vs. Gurpal Singh and Others, AIR 2010 SC 3624 : (2010) CriLJ 4710 : (2010) 9 JT 69 : (2010) 8 SCC 775 : (2010) AIRSCW 5527 : (2010) 6 Supreme 516 and Guru Granth Saheb Sthan Meerghat Vanaras Vs. Ved Prakash and Others, (2013) 6 AD 178 : AIR 2013 SC 2024 : (2013) 3 CTC 667 : (2013) 8 JT 252 : (2013) 171 PLR 827 : (2013) 2 RCR(Civil) 924 : (2013) 2 RCR(Criminal) 947 : (2013) 6 SCALE 576 : (2013) 7 SCC 622 : (2013) AIRSCW 2777 , the learned counsel for the 2nd respondent submitted that the order of civil court does not have any bearing on a criminal case.

Placing reliance on the decisions of the Hon''ble Supreme Court reported in ITI Employees Housing Co-operative Society Ltd. Vs. Venkatappa and Others and Sri S.M. Kannaiah Vs. The State of Karnataka, AIR 2011 Kar 93 : (2011) ILR (Kar) 795 , the learned counsel for the 2nd respondent submitted that once possession of land is taken it becomes property of the Government.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Mahadeo (D) through L.Rs. and Others Vs. State of U.P. and Others, (2013) 5 AD 123 : AIR 2013 SC 1628 : (2013) 8 JT 430 : (2013) 3 RCR(Civil) 570 : (2013) 5 SCALE 457 : (2013) 4 SCC 524 : (2013) AIRSCW 2239 : (2013) 3 Supreme 60 , the learned counsel for the 2nd respondent submitted that once the land is acquired, it cannot be returned to owner. It has to be used for any other public purpose or should be sold in public auction.

Placing reliance on the decision of the Hon''ble Supreme Court reported in K.N. Aswathnarayana Setty (D) Tr. L.Rs. and Others Vs. State of Karnataka and Others, (2014) 1 AD 461 : AIR 2014 SC 279 : (2014) 2 CTC 86 : (2013) 15 JT 194 : (2014) 1 RCR(Civil) 533 : (2013) 14 SCALE 565 : (2014) 1 SCJ 621 , the learned counsel for the 2nd respondent submitted that once possession has been taken, land vests with the State free of all encumbrances and then it cannot be divested. Any such action would be illegal.

Placing reliance on the decision of the Hon''ble Supreme Court reported in The Rajasthan State Industrial Development and Investment Corporation Vs. Subhash Sindhi Cooperative Housing Society Jaipur and Others, (2013) 3 AD 29 : AIR 2013 SC 1226 : (2013) 3 JT 1 : (2013) 2 SCALE 434 : (2013) 5 SCC 427 : (2013) AIRSCW 1174 : (2013) 2 Supreme 345 , the learned counsel for the 2nd respondent submitted that there can be no negative equality and it cannot perpetuate any illegality.

Placing reliance on the decision of the Hon''ble Supreme Court reported in State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 : (1992) CriLJ 527 : (1990) 4 JT 650 : (1990) 2 SCALE 1066 : (1992) 1 SCC 335 Supp : (1990) 3 SCR 259 Supp , the learned counsel for the 2nd respondent submitted that FIR can be quashed only in terms of the guidelines laid down by the Hon''ble Supreme Court.

Placing reliance on the decision of the Hon''ble Supreme Court reported in State of Andhra Pradesh Vs. Golconda Linga Swamy and Another, AIR 2004 SC 3967 : (2004) CriLJ 3845 : (2004) 6 JT 34 : (2004) 6 SCALE 281 : (2004) 6 SCC 522 : (2004) 3 SCR 147 Supp : (2004) AIRSCW 4329 : (2004) 6 Supreme 19 : (2004) 5 Supreme 583 , the learned counsel for the 2nd respondent submitted that if the allegations disclose the offences alleged the proceedings cannot be quashed.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Rajesh Bajaj Vs. State NCT of Delhi and Others, AIR 1999 SC 1216 : (1999) CriLJ 1833 : (1999) 1 Crimes 136 : (1999) 2 CTC 243 : (1999) 2 JT 112 : (1999) 1 SCALE 697 : (1999) 3 SCC 259 : (1999) 1 SCR 1012 : (1999) 1 UJ 685 : (1999) AIRSCW 881 : (1999) 2 Supreme 442 , the learned counsel for the 2nd respondent submitted that it is not necessary that all ingredients of the offence are verbatim reproduced. If factual foundation is available, the court should not quash criminal proceedings.

In reply, the learned counsel for the petitioner submitted that actual possession was not taken. Section 16(2) notification was not issued. Therefore, the State Government had power to de-notify the land. Taking of actual possession is a must. Unless actual possession is taken, the land does not vests in the State. Under section 36(3) of the BDA Act, the land has not vested with the BDA. The acquisition has not reached finality. Issuance of notification under section 16(2) of the Act is a must. Taking possession means taking of physical possession. De-notification order is proper. There is no allegation of accepting any gratification. The alleged act was in discharge of official duties. The requirement of sanction cannot be postponed.

I have carefully considered the submissions made by the learned counsel for the parties.

The points that arise for my consideration are:

Whether prior sanction was required to prosecute the matter?

Whether the impugned order and the proceedings call for interference?

Point No. 1: It is relevant to note, it is alleged that the land belonging to the accused Nos. 2 to 4 measuring 1 acre 10 guntas in Sy. No. 128 and 1 acre 14 guntas in Sy. No. 137 of Halagevaderahalli Village was acquired for formation of Banashankari 5th stage vide final notification dated 12.9.1997 which was published in the official gazette on 17.9.1997. Thereafter, the award was passed on 28.4.1998 in respect of Sy. No. 128. It was approved by Deputy Commissioner (LA), BDA on 16.5.1998. In respect of Sy. No. 137 the award was passed on 4.5.1998. It was approved by Deputy Commissioner (LA), BDA on 25.5.1998. Possession was taken by drawing a mahazar and the land was handed over to the BDA on 29.9.1999. Thereafter, the accused Nos. 2 to 4 have executed the sale deeds dated 13.12.2004 in favour of accused Nos. 5 and 6 in respect of Sy. Nos. 128 and 137 for consideration of Rs. 43,75,000/- and Rs. 47,25,000/- respectively. Subsequently, accused No. 2 Padma has given representation dated 19.9.2005 requesting to drop the acquisition proceedings. On 16.11.2005 the Secretary to the Chief minister has addressed a letter to the Prl. Secretary, Urban Development Department, requesting to examine the request to drop the acquisition proceedings. Thereafter, on 7.12.2005 the Prl. Secretary, Urban Development Department, has addressed a letter to the Commissioner, BDA, to examine the request according to rules and submit report with documents. On 30.12.2005 the BDA has addressed a letter to the Prl. Secretary, Urban Development Department, stating that final notification dated 16.9.1997 bearing No. UDD 436 MNX:97 was issued. Award was approved in respect of Sy. No. 128 on 16.5.1998. In respect of Sy. No. 137 the award was approved on 25.5.1998. Possession has been taken by the BDA on 29.9.1999. Notification under section 16(2) of LA Act is not issued. The property is now the property of the BDA. Sketch is also annexed. On 17.1.2006 office note has been put up referring to the request for denotification and BDA report. At para 7, it is stated that Chief Minister''s office has requested to process the file with the opinion of the concerned department. On 18.1.2006, at para 8, the Prl. Secretary has opined to place the file before the Denotification Committee. At para 9, it is stated, possession was taken in the year 1999. Non-issue of notification under section 16 does not mean that possession is not taken. As per BDA records mahazar has been drawn and possession has been taken. The process is complete. The land cannot be dropped from acquisition. On 20.2.2006 and 22.5.2006 at paras 10 and 11, it is noticed that the matter was not placed before the denotification committee and the file was sent to Chief Minister''s office and it is returned without any order and the file may be closed under TT category. On 22.5.2006 it is noticed at para 12 that before closing the file it is submitted for orders. On 25.8.2006, at paras 13 and 14 of the file, it is noticed that officer from the Chief Minister office has called for the file. On 31.8.2006, at para 15, it is noticed that at para 9 it is opined that acquisition proceedings are completed and the lands are BDA property and at this stage the acquisition proceedings cannot be dropped and the file may be submitted for orders of the Hon''ble Chief Minister. At para 16 it is noticed to close the file. Thereafter, the petitioner has passed the order to drop the acquisition proceedings as per paras 17 and 18 and denotification dated 1.10.2007 has been issued. It is alleged, the act of denotification is in connivance with the accused persons and it has resulted in pecuniary gain to accused persons. The petitioner has misused the office of Trust. The State has suffered monetary loss. No public interest was involved. The 2nd respondent has lodged a private complaint alleging offences punishable under sections 120(B), 406, 420, 463, 465, 468, 471 of IPC and sections 13(1)(c), 131(1)(d), 13(1)(e), 13(2) of Prevention of Corruption Act and sections 3 and 4 of the Karnataka Land (Restriction on Transfer) Act read with section 34 of IPC.

The Special Court by its order dated 4.7.2012 has referred the matter for investigation under Section 156(3) of Cr.P.C.

The learned counsel for the petitioner contended that the petitioner was a public servant and prior sanction was required to prosecute the matter and to entertain the complaint and to refer the matter for investigation. In the absence of prior sanction as required under section 197 of Cr.P.C. the proceedings are vitiated. The alleged act has taken place in discharge of his official duty by the petitioner and therefore, prior sanction is a must even to entertain the complaint. Therefore, the Special Court was not justified in referring the complaint for investigation. In support of his submission he placed reliance on the following decisions:

Anil Kumar and Others Vs. M.K. Aiyappa and Another, (2013) 6 ABR 895 : (2013) 10 AD 386 : (2014) CriLJ 1 : (2013) 13 JT 127 : (2013) 4 RCR(Criminal) 586 : (2013) 12 SCALE 283 : (2013) 10 SCC 705

State of H.P. Vs. M.P. Gupta, (2003) 10 JT 32 : (2003) 10 SCALE 522 : (2004) 2 SCC 349 : (2003) 6 SCR 541 Supp

General Officer Commanding Vs. CBI and Another, AIR 2012 SC 1890 : (2012) 2 Crimes 178 : (2012) 2 RCR(Criminal) 818 : (2012) 5 SCALE 58 : (2012) 6 SCC 228

Dr. Subramanian Swamy Vs. Dr. Manmohan Singh and Another, AIR 2012 SC 1185 : (2012) CriLJ 1519 : (2012) 2 JT 203 : (2012) 1 RCR(Criminal) 720 : (2012) 2 SCALE 12 : (2012) 3 SCC 64 : (2012) AIRSCW 1249 : (2012) 1 Supreme 577

R. Balakrishna Pillai Vs. State of Kerala, AIR 1996 SC 901 : AIR 1995 SC 901 : (1995) 4 Crimes 704 : (1995) 9 JT 580 : (1995) 7 SCALE 255 : (1996) 1 SCC 478 : (1996) 6 SCR 236 Supp

Sankaran Moitra Vs. Sadhna Das and Another, AIR 2006 SC 1599 : (2006) 4 JT 34 : (2006) 3 SCALE 414 : (2006) 4 SCC 584 : (2006) AIRSCW 1004 : (2006) AIRSCW 1695 : (2006) 2 Supreme 454 : (2006) 4 Supreme 645

State of Orissa through Kumar Raghvendra Singh and Others Vs. Ganesh Chandra Jew, AIR 2004 SC 2179 : (2004) CriLJ 2011 : (2004) 2 CTC 467 : (2004) 4 JT 52 : (2004) 3 SCALE 608 : (2004) 8 SCC 40 : (2004) 1 SCR 504 : (2004) AIRSCW 5256 : (2004) AIRSCW 1926 : (2004) 2 Supreme 757 : (2004) 6 Supreme 509

Matajog Dobey Vs. H.C. Bhari, AIR 1956 SC 44 : (1955) 28 ITR 941 : (1955) 2 SCR 925

As against this, the learned counsel for the respondents 1 and 2 submitted that no sanction is required under section 19 of the P.C. Act, 1988 as the petitioner does not hold the office. Further, they submitted that no sanction is required under Section 197 of Cr.P.C. to prosecute the public servant for the offence punishable under sections 120-B, 406, 409, 467, 468 and 471 of IPC. In support of their submission, they placed reliance on the following decisions:

Matajog Dobey Vs. H.C. Bhari, AIR 1956 SC 44 : (1955) 28 ITR 941 : (1955) 2 SCR 925

Ajoy Acharya Vs. State Bureau of Inv. against Eco. Offence, (2013) 10 AD 125 : (2013) CriLJ 4763 : (2013) 13 JT 26 : (2013) 4 RCR(Criminal) 443 : (2013) 11 SCALE 496

Om Kr. Dhankar Vs. State of Haryana and Another, (2012) 2 CTC 871 : (2012) 167 PLR 120 : (2012) 3 SCALE 363 : (2012) 11 SCC 252 : (2013) 1 SCC(L&S) 47 : (2012) AIRSCW 1821

(2014) SCC page 70

Crl.R.P. No. 224/2014 D.D. 21.10.2014

Parkash Singh Badal and Another Vs. State of Punjab and Others, AIR 2007 SC 1274 : (2007) CLT 567 Supp : (2007) 1 JT 89 : (2006) 13 SCALE 54 : (2007) 1 SCC 1 : (2006) 10 SCR 197 Supp : (2007) AIRSCW 1415 : (2006) 8 Supreme 964

State of U.P. Vs. Paras Nath Singh, (2009) CriLJ 3069 : (2009) 13 JT 625 : (2009) 8 SCALE 553 : (2009) 6 SCC 372 : (2009) 2 SCC(L&S) 200 : (2009) 9 SCR 85

AIR 2008 SC (Supp) page 1486

Let me first refer to the decisions cited by the learned counsel for the parties.

In Anil Kumar and Others Vs. M.K. Aiyappa and Another, (2013) 6 ABR 895 : (2013) 10 AD 386 : (2014) CriLJ 1 : (2013) 13 JT 127 : (2013) 4 RCR(Criminal) 586 : (2013) 12 SCALE 283 : (2013) 10 SCC 705 , the Hon''ble Supreme Court has held, the Magistrate has to apply his mind and the order must reflect what weighed with the Magistrate to order investigation under section 156(3) of Cr.P.C. The Magistrate who is empowered under Section 190 to take cognizance alone has the power to refer a private complaint for police investigation under Section 156(3) of Cr.P.C. Once it is noticed that there was no previous sanction, the Magistrate cannot order investigation against a public servant while invoking powers under section 156(3) of Cr.P.C. The requirement to obtain sanction is mandatory.

In State of H.P. Vs M.P. Gupta reported in State of H.P. Vs. M.P. Gupta, (2003) 10 JT 32 : (2003) 10 SCALE 522 : (2004) 2 SCC 349 : (2003) 6 SCR 541 Supp , the Hon''ble Supreme Court has held, before section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of his official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of the official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of section 197 does not get immediately attracted on institution of the complainant case. Further, it is held, if the offence alleged to have been committed was in discharge of the official duty, it precludes the court from taking cognizance of complaint against public servant unless sanction is obtained. Further it is held, sanction is necessary, even in cases where a retired public servant is sought to be prosecuted.

In General Officer Commanding Vs. CBI and another reported in General Officer Commanding Vs. CBI and Another, AIR 2012 SC 1890 : (2012) 2 Crimes 178 : (2012) 2 RCR(Criminal) 818 : (2012) 5 SCALE 58 : (2012) 6 SCC 228 , the Hon''ble Supreme Court has held that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. However, there must be a discernible connection between the act complained of and the powers and duties of the public servant. The complaint complained of may fall within the description of the action purported to have been done in performing the official duty. Therefore, if the alleged act or omission of the public servant can be shown to have reasonable connection, inter-relationship or inseparably connected with discharge of his duty, he becomes entitled for protection of sanction. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void-ab initio for want of sanction. Sanction can be obtained even during the course of trial depending upon the facts of an individual case and particularly at what stage of the proceedings, requirement of sanction has surfaced. The question as to whether the act complained of is done in performance of duty or in purported performance of duty, is to be determined by the Competent Authority and not by the court. The Legislature has conferred "absolute power" on the statutory authority to accord sanction or withhold the same and the court has no role in the subject. In such a situation, the court would not proceed without sanction of the Competent Statutory Authority.

In Dr. Subramanian Swamy Vs. Dr. Manmohan Singh and Another, AIR 2012 SC 1185 : (2012) CriLJ 1519 : (2012) 2 JT 203 : (2012) 1 RCR(Criminal) 720 : (2012) 2 SCALE 12 : (2012) 3 SCC 64 : (2012) AIRSCW 1249 : (2012) 1 Supreme 577 , it has been held without sanction the Court is precluded from entertaining the complaint or taking notice of it.

In R. Balakrishna Pillai Vs. State of Kerala, AIR 1996 SC 901 : AIR 1995 SC 901 : (1995) 4 Crimes 704 : (1995) 9 JT 580 : (1995) 7 SCALE 255 : (1996) 1 SCC 478 : (1996) 6 SCR 236 Supp , the Hon''ble Supreme Court has held that a Minister for Electricity entering into a criminal conspiracy with the co-accused and illegally selling electricity to an industry, the act alleged is directly and reasonably connected with the official duty as a Minister and therefore, attracts the protection of Section 197(1). Further, it is held sanction is required under Section 197 of Cr.P.C. even if the public servant has ceased to be a public servant on the date of taking cognizance of the offence.

In Sankaran Moitra Vs. Sadhna Das and Another, AIR 2006 SC 1599 : (2006) 4 JT 34 : (2006) 3 SCALE 414 : (2006) 4 SCC 584 : (2006) AIRSCW 1004 : (2006) AIRSCW 1695 : (2006) 2 Supreme 454 : (2006) 4 Supreme 645 , the Hon''ble Supreme Court has held, the prosecution hit by the provision under Section 197 cannot be launched without the sanction contemplated. It is a condition precedent for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage. We cannot therefore accede to the request to postpone a decision on this question.

In State of Orissa through Kumar Raghvendra Singh and Others Vs. Ganesh Chandra Jew, AIR 2004 SC 2179 : (2004) CriLJ 2011 : (2004) 2 CTC 467 : (2004) 4 JT 52 : (2004) 3 SCALE 608 : (2004) 8 SCC 40 : (2004) 1 SCR 504 : (2004) AIRSCW 5256 : (2004) AIRSCW 1926 : (2004) 2 Supreme 757 : (2004) 6 Supreme 509 , the Hon''ble Supreme Court has held, if on facts, if it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to official to which applicability of Section 197 of the Code cannot be disputed. Sanction is required even in cases where a retired public servant is sought to be prosecuted.

In Matajog Dobey Vs. H.C. Bhari, AIR 1956 SC 44 : (1955) 28 ITR 941 : (1955) 2 SCR 925 , the Hon''ble Supreme Court has held the offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless, the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What the court must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.

In para 20, it is observed as follows:

"The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case."

In Ajoy Acharya Vs. State Bureau of Inv. against Eco. Offence, (2013) 10 AD 125 : (2013) CriLJ 4763 : (2013) 13 JT 26 : (2013) 4 RCR(Criminal) 443 : (2013) 11 SCALE 496 , the Hon''ble Supreme Court has held, as the appellant was not holding the public office which he is alleged to have abused, when the first charge sheet was filed, there was no need to obtain any sanction before proceeding to prosecute the appellant for the offences alleged against him.

In Parkash Singh Badal and Another Vs. State of Punjab and Others, AIR 2007 SC 1274 : (2007) CLT 567 Supp : (2007) 1 JT 89 : (2006) 13 SCALE 54 : (2007) 1 SCC 1 : (2006) 10 SCR 197 Supp : (2007) AIRSCW 1415 : (2006) 8 Supreme 964 and others , the Hon''ble Supreme Court has observed as follows at para 50:

"The offences of cheating under section 420 or for that matter offences relatable to sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence."

Further, at para 38, it is observed that the question relating to the need of sanction under Section 197 of the code is not necessarily be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.

At para 62 it is observed, merely because the political opponent was the complainant, that does not per se lead to an inference that the complaint has to be thrown out or that no notice should be taken thereof. When the allegation is made, investigation is undertaken to find out whether there is any substance in the allegation.

In Choudhury Parveen Sultana Vs. State of West Bengal and Another, AIR 2009 SC 1404 : (2009) CLT 563 : (2009) CriLJ 1318 : (2009) 234 ELT 196 : (2009) 1 JT 347 : (2009) 1 SCALE 374 : (2009) 3 SCC 398 : (2009) 1 SCR 99 : (2009) 2 UJ 658 : (2009) AIRSCW 861 : (2010) AIRSCW 232 : (2009) 1 Supreme 666 : (2009) 7 Supreme 107 , the Hon''ble Supreme Court has observed as follows at para. 14:

"All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. The underlying object of 197 is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of section 197 and have to be considered dehors the duties which a public servant is required to discharge or, perform. Hence, in respect of prosecution/for such excesses or misuse of authority, no protection can be demanded by the public servant concerned."

In State of U.P. Vs. Paras Nath Singh, (2009) CriLJ 3069 : (2009) 13 JT 625 : (2009) 8 SCALE 553 : (2009) 6 SCC 372 : (2009) 2 SCC(L&S) 200 : (2009) 9 SCR 85 State of Uttar Pradesh Vs. Paras Nath Singh , the Hon''ble Supreme Court has observed that for the offences punishable under Sections 406 and 409 r/w section 120-B of IPC sanction under Section 197 of Cr.P.C. is condition precedent for launching the prosecution is fallacious. It is no part of the duty of the public servant while discharging his official duties to enter into criminal conspiracy or to indulge in criminal misconduct.

In AIR 2008 SC (Supp) page 1486 Raghunath Anant Govilkar Vs. State of Maharashtra, the Hon''ble Supreme Court has observed at para 30 as follows:

"When this court held that in regard to the offence under Section 409 of IPC r/w section 120-B it is no part of the duty of the public servant to enter into criminal conspiracy for committing breach of trust, we find no sense in stating that if the offence is under Section 406 r/w Section 120-B of IPC it would make all the difference vis-�-vis section 197 of the code."

In Crl. P. No. 224/2014 and connected matters in the case of Vinod B. Vs. K.S. Eshwarappa & others, this court has held, if it is able to satisfy the court that the acts giving rise to the alleged offences had been committed by the accused in the purported discharge of official duties and if it could be demonstrated, on the face of it, that it could be no part of the duty of public servant while acting in discharge of his official duties to commit any such offences and the official status of the public servant has at best, only provided an opportunity for commission of the offences, the question of any sanction being required for prosecution of such public servant, under section 197 of Cr.P.C. would notarise.

From the above decisions, what emerges is; If on facts, it is prima facie found that the act or omission for which the accused is charged had reasonable connection with the discharge of his duty, then it must be held to be official to which applicability of section 197 of Cr.P.C. cannot be disputed. In such a situation, the court would not proceed without sanction. The Court is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed in discharge of his official duty. Sanction for prosecution of a public servant is necessary under Section 197 of Cr.P.C. even in cases where the retired public servant is sought to be prosecuted.

If the offence alleged has been committed in discharge of the official duty, cognizance is barred under section 197 of Cr.P.C. unless sanction is obtained. There must be a reasonable connection between the act and the official duty.

Sanction is not required under Section 19 of P.C. Act if the accused does not hold the office alleged to have been abused as on the date of taking cognizance.

No sanction is required to prosecute the public servant for the offences punishable under sections 120-B, 406, 409, 467, 468 and 471 of IPC. It is no part of the duty of the public servant while discharging his official duties to enter into criminal conspiracy or to indulge in criminal misconduct.

In some cases the question relating to the need of sanction under section 197 of Cr.P.C. is not necessarily be considered as soon as the complaint is lodged and on the allegations contained therein. The question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.

Abuse or misuse of power cannot be said to be part of the official duty. No protection can be demanded by the public servant.

In the present case, the land of Smt. Padma i.e., accused No. 2 and her children who are accused Nos. 2 to 4 measuring 1 acre 10 guntas in Sy. No. 128 and 1 acre 14 guntas in Sy. No. 137 of Halage Vaderahalli village has been acquired vide final notification dated 12.9.1997. It was published in the Gazette on 17.9.1997. Thereafter, award has been passed on 28.4.1998 in respect of Sy. No. 128 and approved on 16.5.1998. In respect of Sy. No. 137 award has been passed on 4.5.1998 and approved on 25.5.1998. It is stated, possession has been taken by drawing a mahazar and the land has been handed over to the BDA on 29.9.1999. It is alleged, on 13.12.2004, Smt. Padma i.e., accused No. 2 and her children accused Nos. 2 to 4 have executed sale deeds in favour of Smt. Shantha and Smt. Rekha S. Chandru who are accused Nos. 5 and 6 conveying Sy. No. 128 and Sy. No. 137 measuring 1 acre 10 guntas and 1 acre 14 guntas respectively for consideration of Rs. 43,75,000/- and Rs. 47,25,000/-. After conveying the property in favour of accused Nos. 5 and 6 i.e., Smt. Shantha and Smt. Rekha S. Chandru, accused No. 2 Smt. Padma has given representation dated 19.9.2005 to drop the acquisition proceedings. A report has been secured from the BDA. The BDA through its communication dated 30.12.2005 addressed to the Principal Secretary has informed that final notification was issued on 16.9.1997. Award was approved in respect of Sy. No. 128 on 16.5.1998. In respect of Sy. No. 137 award was approved on 25.5.1998. Possession of the land has been taken by the BDA on 29.9.1999. The property is the property of BDA. Section 16(2) notification has not been issued. Sketch is also annexed. Office note dated 17.1.2006 shows that that file has been processed. At para 7, it is stated, the Chief Minister''s office has requested to process the file with the opinion of the concerned department. On 18.1.2006, at para 8 the Principal Secretary has opined to place the file before the de-notification committee. It is also stated, BDA has not furnished definite opinion regarding dropping of acquisition proceedings. At para 9, it is stated, possession was taken in the year 1999. The process is completed. The land cannot be dropped from acquisition. The matter was not placed before the de-notification committee and the file was sent to chief minister''s office and returned without any order. On 25.8.2006, at paras 13 and 14 of the file it is noticed that officer from the Chief Minister''s office has called for the file. On 31.08.2006, at para 15, it is noticed that it is opined at para 9 that acquisition proceedings are completed and the lands are BDA property. At this stage the acquisition proceedings cannot be dropped. The file may be submitted for orders of the Hon''ble Chief Minister. Thereafter, the petitioner has passed the order to drop the acquisition proceedings in respect of Sy. Nos. 128 and 137 of Halagevaderahalli village as per paras 17 and 18. Thereafter, on 1.10.2007, de-notification has been issued. Subsequently, on 10.3.2010, Smt. Shanthamma and Smt. Rekha S. Chandru have conveyed Sy. Nos. 128 and 137 measuring in all 2 acres 24 guntas in favour of accused Nos. 7 to 15 for Rs. 4,14,00,000/-. On 31.3.2011 a registered memorandum of understanding has been effected by floating firms i.e., accused Nos. 16 to 19. It is clear, the allegations indicate that acquisition proceedings were completed, award was passed and possession was taken and handed over to the BDA on 29.9.1999. Apart from this, Smt. Padma i.e., accused No. 2 and her children accused Nos. 2 to 4 had sold the property in favour of accused Nos. 5 and 6 Smt. Shanthamma and Smt. Rekha S. Chandru conveying Sy. Nos. 137 and 128 on 13.12.2004. The representation for de-notification has been made on 19.9.2005. As on the date of making representation for denotification Smt. Padma was not the owner of the land. The land was acquired, award was passed and possession was taken by drawing mahazar. Further, inspite of acquisition, Smt. Padma and her children i.e., accused Nos. 2 to 4 had sold the property in favour of Smt. Shantha and Smt. Rekha S. Chandru i.e., accused Nos. 5 and 6. After acquisition proceedings were completed and having sold the property, Smt. Padma has made representation dated 19.9.2005 to drop the acquisition proceedings. The report of the BDA shows that land was acquired and possession was taken. However, the learned counsel for the petitioner contended that physical possession was not taken. Unless actual possession is taken it cannot be said that possession was taken. If possession was not taken, the Government had power to withdraw the acquisition. It is relevant to note, pursuant to representation requesting to drop the acquisition proceedings the report from the BDA has been called for. The report shows that possession was taken and land was handed over to the BDA on 29.09.1999. The office note shows that land was acquired, possession was taken and the land cannot be dropped from acquisition proceedings. It is alleged, the acquisition proceedings have been dropped in connivance with the accused. Smt. Padma was not the owner and she was not in possession when the representation was made for de-notification. By that time, the acquisition proceedings were completed. Further, Smt. Padma and her children had sold the land in favour of Smt. Shanthamma and Smt. Rekha S. Chandru. The acquisition proceedings have been dropped in favour of a person who was not the owner and who was not in possession. It is alleged, the act of dropping the acquisition proceedings is not bona fide. It is for pecuniary gain. The office of Trust has been misused. No public interest was involved. It was contended by the learned counsel for the petitioner that conspiracy must precede the act and the petitioner was not the Chief Minister when the representation was made. Though the petitioner was not the Chief Minister when the representation was made, subsequently, the order dropping acquisition proceedings has been passed by the petitioner. The report of the BDA shows that possession was taken and the land belongs to the BDA. Section 16(2) notification was not issued. The note put up by the concerned authorities also show that possession was taken and acquisition cannot be dropped. It is alleged, in connivance with the accused the acquisition proceedings have been dropped. It has resulted in pecuniary gain to the accused persons. No public interest was involved. On the request of a person i.e., accused No. 2 who was not the owner at the time when the representation was made, the acquisition proceedings have been dropped. The acquired land has been denotified. It has resulted in pecuniary gain to the accused persons. The office of Trust has been misused. Therefore, the allegations require proper investigation. The Hon''ble Supreme Court in Vinod Raghuvanshi Vs. Ajay Arora and Others, (2013) 4 JCC 2782 : (2014) 3 LLN 32 : (2013) 4 RCR(Criminal) 704 : (2013) 12 SCALE 30 : (2013) 10 SCC 581 : (2014) 1 SCC(L&S) 679 has observed as follows at para 19:

"It is settled legal proposition that while considering the case for quashing of the criminal proceedings the court should not ''kill a still born child'', and appropriate prosecution should not be stifled unless there are compelling circumstances to do so. An investigation should not be shut out at the threshold if the allegations have some substance.

When a prosecution at the initial stage is to be quashed, the test to be applied by the Court is whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither the Court can embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence or nor the Court should judge the probability, reliability or genuineness of the allegations made therein. Moreso, the charge-sheet filed or charges framed at the initial stage can be altered/amended or a charge can be added at the subsequent stage, after the evidence is adduced in view of the provisions of Section 216, Cr.P.C. So, the order passed even by the High Court or this Court is subject to the order which would be passed by the trial Court at a later stage."

No doubt prior sanction is required under section 197 Cr.P.C. to prosecute the public servant for the act done in discharge of official duty, but it has been held by the Hon''ble Supreme Court in Choudhury Parveen Sultana Vs. State of West Bengal and Another, AIR 2009 SC 1404 : (2009) CLT 563 : (2009) CriLJ 1318 : (2009) 234 ELT 196 : (2009) 1 JT 347 : (2009) 1 SCALE 374 : (2009) 3 SCC 398 : (2009) 1 SCR 99 : (2009) 2 UJ 658 : (2009) AIRSCW 861 : (2010) AIRSCW 232 : (2009) 1 Supreme 666 : (2009) 7 Supreme 107 , National Institute of Technology, Jamshedpur and Others Vs. Chandra Shekhar Chaudhary, AIR 2007 SC 463 : (2007) 113 FLR 456 : (2006) 12 SCALE 30 : (2007) 1 SCC 93 : (2007) 1 SCC(L&S) 1 : (2006) 8 SCR 1102 Supp , State of U.P. Vs. Paras Nath Singh, (2009) CriLJ 3069 : (2009) 13 JT 625 : (2009) 8 SCALE 553 : (2009) 6 SCC 372 : (2009) 2 SCC(L&S) 200 : (2009) 9 SCR 85 and AIR 2008 SC (Supplement) page 1486 that no sanction is required for the offences punishable under sections 420, 467, 468, 471, 406, 409 and 120B of IPC. It is no part of the duty of the public servant to commit an offence under sections 420, 467, 468, 471, 406, 409 and 120B of IPC. Therefore, though prior sanction is required to protect the interest of the public servant in discharge of his official duty, but if the nature of the act is such that it has nothing to do with the discharge of the official duties, in such cases, prior sanction is not required.

Hon''ble Supreme Court in Matajog Dobey Vs. H.C. Bhari, AIR 1956 SC 44 : (1955) 28 ITR 941 : (1955) 2 SCR 925 at para 20 has observed as follows:

"The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case."

In P.K. Pradhan Vs. The State of Sikkim represented by the Central Bureau of Investigation, AIR 2001 SC 2547 : (2001) CriLJ 3505 : (2001) 3 Crimes 323 : (2001) 5 JT 610 : (2001) 4 SCALE 508 : (2001) 6 SCC 704 : (2001) 3 SCR 1119 : (2001) AIRSCW 2648 : (2001) 5 Supreme 289 , the Hon''ble Supreme Court has observed as follows:

"It is well settled that question of sanction under section 197 of the Code can be raised any time after the cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial."

In Parkash Singh Badal and Another Vs. State of Punjab and Others, AIR 2007 SC 1274 : (2007) CLT 567 Supp : (2007) 1 JT 89 : (2006) 13 SCALE 54 : (2007) 1 SCC 1 : (2006) 10 SCR 197 Supp : (2007) AIRSCW 1415 : (2006) 8 Supreme 964 , the Hon''ble Supreme Court at para 38 has observed as follows;

"The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage........."

It is clear, the question of sanction may arise from stage to stage and it may have to be determined from stage to stage.

In the present case, the allegations are that the land of accused No. 2 Smt. Padma and her children accused Nos. 2 to 4 was acquired, award was passed and possession was taken. Further, accused No. 2 Smt. Padma and her children accused Nos. 2 to 4 had sold the land in favour of accused Nos. 5 and 6 for consideration of Rs. 43,75,000/- and Rs. 47,25,000/- through sale deed dated 13.12.2004. Thereafter, accused Nos. 5 and 6 have sold the land in favour of accused Nos. 7 to 15 for consideration of Rs. 4,14,00,000/- on 10.3.2010. The sale transaction has taken place subsequent to the acquisition proceedings. After alienating the property, the representation has been given by the accused No. 2 to drop the acquisition proceedings on 19.9.2005. As on the date of making representation for denotification accused No. 2 Smt. Padma and her children were not the owners of the land and they were not in possession. It is alleged, the denotification has been done in connivance with the accused and no public interest was involved. The denotification has resulted in pecuniary gain to the accused persons and loss to the state. It is also alleged, the office of Trust has been misused and the act of denotification is the result of conspiracy. It cannot be said that the allegations are without any basis. There is factual foundation for the offences alleged. It is alleged, the accused have committed offences punishable under Sections 120-B, 406, 420, 463, 465,468, 471 of IPC and Sections 13(1)(c), 13(1)(d), 13(1)(e), 13(2) of Prevention of Corruption Act and Sections 3 and 4 of the Karnataka Land (Restriction on Transfer) Act. It needs to be investigated. The allegations of conspiracy, mis-use of office of Trust, pecuniary gain, unlawful enrichment cannot be said to be part of official duty. The investigation cannot be shut out if the allegations have some substance. Therefore, the special court considering these aspects has directed investigation under section 156(3) of Cr.P.C. In the circumstances of the case and having regard to the nature of allegations prior sanction was not required at this stage to order for investigation under section 156(3) of Cr.P.C. The question of sanction may arise from stage to stage and it needs to be considered at that stage. Point No. 1 answered accordingly holding that prior sanction was not required to order for investigation under section 156(3) of IPC. If the question of sanction arises at a later stage, it needs to be considered.

Point No. 2: The Special Judge has referred the matter for investigation under section 156(3) of Cr.P.C. It was contended by the learned counsel for the petitioner that there is no application of mind and no opinion has been formed that the complaint discloses commission of cognizable offence and therefore, the order is vitiated in law. In support of his submission, he placed reliance on the following decisions:

1) Anil Kumar and Others Vs. M.K. Aiyappa and Another, (2013) 6 ABR 895 : (2013) 10 AD 386 : (2014) CriLJ 1 : (2013) 13 JT 127 : (2013) 4 RCR(Criminal) 586 : (2013) 12 SCALE 283 : (2013) 10 SCC 705

2) Guruduth Prabhu and Others Vs. M.S. Krishna Bhat and Others, (1999) CriLJ 3909

3) Maksud Saiyed Vs. State of Gujarat and Others, (2008) CLT 715 : (2008) 1 CTC 259 : (2007) 11 JT 276 : (2007) 11 SCALE 318 : (2008) 5 SCC 668 : (2007) 9 SCR 1113

In Anil Kumar and Others Vs. M.K. Aiyappa and Another, (2013) 6 ABR 895 : (2013) 10 AD 386 : (2014) CriLJ 1 : (2013) 13 JT 127 : (2013) 4 RCR(Criminal) 586 : (2013) 12 SCALE 283 : (2013) 10 SCC 705 , the Hon''ble Supreme Court has held that Magistrate has to apply his mind and the order must reflect what weighed with the Magistrate to order for investigation.

In Guruduth Prabhu and Others Vs. M.S. Krishna Bhat and Others, (1999) CriLJ 3909 , this Court has held that the order of the Magistrate directing investigation under section 156(3) without applying his mind to the allegations made in the complaint is without jurisdiction. The Magistrate should form an opinion that the complaint discloses a cognizable offence. When the allegation does not disclose cognizable offence, the Magistrate has no jurisdiction to order police investigation under sub-section (3).

In Maksud Saiyed Vs. State of Gujarat and Others, (2008) CLT 715 : (2008) 1 CTC 259 : (2007) 11 JT 276 : (2007) 11 SCALE 318 : (2008) 5 SCC 668 : (2007) 9 SCR 1113 , the Hon''ble Supreme Court has held, where a 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. Summoning of accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course.

The learned counsel for the respondents submitted that it is not necessary to examine the genuineness of the allegations at this stage. It is like killing a still born child. Completion of investigation is the rule. The court shall not interfere with the investigation by exercising power under section 482 of Cr.P.C. The discretion exercised by the Special Court to order investigation under section 156(3) of Cr.P.C. cannot be interfered with. Even if one of the offences is made out the court should not interfere. It is not necessary that all the ingredients of the offence are to be verbatum reproduced. Complaint by a political rival has no bearing on the investigation. Reliance was placed on the following decisions:

Vinod Raghuvanshi Vs. Ajay Arora and Others, (2013) 4 JCC 2782 : (2014) 3 LLN 32 : (2013) 4 RCR(Criminal) 704 : (2013) 12 SCALE 30 : (2013) 10 SCC 581 : (2014) 1 SCC(L&S) 679

2012 (4) SC page 547

Sushil Suri Vs. C.B.I. and Another, AIR 2011 SC 1713 : (2011) 4 CompLJ 9 : (2011) CriLJ 2939 : (2011) 2 Crimes 251 : (2011) 3 RCR(Criminal) 356 : (2011) 5 SCALE 412 : (2011) 5 SCC 708 : (2011) 2 SCC(Cri) 764 : (2011) 107 SCL 390 : (2011) 8 SCR 1 : (2011) 4 UJ 2582 : (2011) AIRSCW 2909 : (2011) 3 Supreme 654

2011 AIR SCW page 1185

Rajesh Bajaj Vs. State NCT of Delhi and Others, AIR 1999 SC 1216 : (1999) CriLJ 1833 : (1999) 1 Crimes 136 : (1999) 2 CTC 243 : (1999) 2 JT 112 : (1999) 1 SCALE 697 : (1999) 3 SCC 259 : (1999) 1 SCR 1012 : (1999) 1 UJ 685 : (1999) AIRSCW 881 : (1999) 2 Supreme 442

In Vinod Raghuvanshi Vs. Ajay Arora and Others, (2013) 4 JCC 2782 : (2014) 3 LLN 32 : (2013) 4 RCR(Criminal) 704 : (2013) 12 SCALE 30 : (2013) 10 SCC 581 : (2014) 1 SCC(L&S) 679 , it has been held, an investigation should not be shut out at the threshold if the allegations have some substance. The court cannot embark upon inquiry, whether the allegations in the complaint are likely to be established by evidence. Further, the court should not judge the probability, reliability or genuineness of the allegations at this stage.

In State of Orissa and Others Vs. Ujjal Kumar Burdhan, (2012) CriLJ 2015 : (2012) 2 Crimes 141 : (2012) 2 JCC 1218 : (2012) 3 SCALE 508 : (2012) 4 SCC 547 , the Hon''ble Supreme Court has observed at para. 11 that commencement and completion of an investigation is necessary to test the veracity of the alleged commission of an offence. Any kind of hindrance or obstruction of the process of law from taking normal course, without any supervening circumstances, in a casual manner, merely on the whims and fancy of the court tantamount to miscarriage of justice.

In Sushil Suri Vs. C.B.I. and Another, AIR 2011 SC 1713 : (2011) 4 CompLJ 9 : (2011) CriLJ 2939 : (2011) 2 Crimes 251 : (2011) 3 RCR(Criminal) 356 : (2011) 5 SCALE 412 : (2011) 5 SCC 708 : (2011) 2 SCC(Cri) 764 : (2011) 107 SCL 390 : (2011) 8 SCR 1 : (2011) 4 UJ 2582 : (2011) AIRSCW 2909 : (2011) 3 Supreme 654 , the Hon''ble Supreme Court has held that mere proof of an agreement between the accused for commission of such crime alone is enough to bring about the conviction under Section 120-B and proof of any overt act by the accused or by any one of them would not be necessary.

In Madhao and Another Vs. State of Maharashtra and Another, (2013) 9 AD 257 : (2013) 9 JT 74 : (2013) 2 RCR(Criminal) 975 : (2013) 6 SCALE 529 : (2013) 5 SCC 615 : (2013) AIRSCW 4502 : (2013) 5 Supreme 369 the Hon''ble Supreme Court has observed as follows at paras 14 and 18:

"14. The order of the learned Magistrate shows that before passing the direction for investigation under section 156(3), he heard the counsel for the complainant, perused the allegations made against the accused in the complaint and the documents annexed therewith. It also shows that taking note of the fact that some of the accused are public officers and after observing that it needs proper investigation prior to the issue of process against the accused under section 156(3) of the Code, the learned Magistrate directed the PSO, Ghatanji to investigate the matter and submit a detailed report within one month."

When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3)."

In Rajesh Bajaj Vs. State NCT of Delhi and Others, AIR 1999 SC 1216 : (1999) CriLJ 1833 : (1999) 1 Crimes 136 : (1999) 2 CTC 243 : (1999) 2 JT 112 : (1999) 1 SCALE 697 : (1999) 3 SCC 259 : (1999) 1 SCR 1012 : (1999) 1 UJ 685 : (1999) AIRSCW 881 : (1999) 2 Supreme 442 , the Hon''ble Supreme Court has observed as follows at para 9:

"9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. In State of Haryana Vs. Bhajan Lal this court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder.

"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

From the above decisions, it is clear, the court must apply its mind before directing the investigation. The investigation cannot be stalled unless the allegations do not constitute any offence. It is not necessary that all the ingredients of the offence must be verbatim reproduced. In the present case, it is alleged, the denotification is the result of conspiracy. There was no public interest involved. The act of denotification has resulted in pecuniary gain to the accused persons and loss to the state. The land was acquired and acquisition proceedings were completed. Thereafter, the acquired land has been sold by accused Nos. 2 to 4 in favour of accused Nos. 5 and 6 for consideration of Rs. 43,75,000/- and Rs. 47,25,000/-. Subsequently, the representation for denotification has been made by accused No. 2 on 19.9.2005. When the representation was made, the accused Nos. 2 to 4 were not the owners of the land and they were not in possession. Though the land was acquired, the accused Nos. 2 to 4 had sold the land in favour of accused Nos. 5 and 6 through registered sale deeds dated 13.12.2004. Thereafter, the representation dated 19.9.2005 has been made for denotification. After denotification, accused Nos. 5 and 6 have sold the land in favour of accused Nos. 7 to 15 for consideration of Rs. 4,14,00,000/-. It was contended by the learned counsel for the petitioner that actual possession was not taken and there was no vesting of the land as notification under Section 16(2) of the L.A. Act was not issued. Layout could not have been formed unless the adjacent land was acquired. Therefore, it was well within the power of the Government to denotify the land. The act of denotification was in discharge of official duty. Reliance was placed on the decisions reported in Hari Ram and Another Vs. State of Haryana and Others, (2010) 2 CTC 336 : (2010) 2 JT 235 : (2010) 2 SCALE 339 : (2010) 3 SCC 621 : (2010) 2 SCR 756 : (2011) AIRSCW 109 : (2010) 6 Supreme 450 ; B.A. Basavaiah and Others Vs. Bangalore Development Authority and Others, AIR 2000 SC 3403 : (2000) 3 JT 161 : (2000) 9 SCC 375 : (2000) AIRSCW 1733 : (2000) 2 Supreme 237 ; Magnum Promoters P. Ltd. Vs. Union of India (UOI), (2015) 1 RCR(Civil) 765 ; The Commissioner, Bangalore Development Authority and Another Vs. State of Karnataka and Another, (2006) ILR (Kar) 318 : (2006) 1 KarLJ 1 : (2006) 1 KCCR 19 SN ; Civil Appeal No. 4097/2010 Bondu Rmaswamy and others Vs. BDA. No doubt, the decisions relied upon by the learned Counsel for the petitioner support the contention that section 48 of L.A. Act empowers State to withdraw from acquisition provided possession has not been taken and that the vesting of land under section 16 of the Act presupposes actual taking of possession and till that is done, legal presumption of vesting enshrined in section 16 cannot be raised and that small packet of acquired lands surrounded by lands which were not acquired or which were deleted may be considered for deletion if they are not suitable for forming layouts. In the present case, the fact situation is totally different. The land was acquired, acquisition proceedings were completed, award was passed and possession was taken by drawing mahazar. Inspite of acquisition, the land was sold in favour of accused Nos. 5 and 6 through registered sale deeds dated 13.12.2004 for consideration of Rs. 43,75,000/- and Rs. 47,25,000/-. Subsequently, accused Nos. 5 and 6 have sold the land in favour of accused Nos. 7 to 15 for consideration of Rs. 4,14,00,000/-. On the date of making representation for denotification, the accused Nos. 2 to 4 were not the owners of the land and they were not in possession. It is alleged, the act of denotification is the result of conspiracy. The office of Trust has been misused. No public interest was involved. For pecuniary gain denotification has been done. The state has suffered loss. There is factual foundation for the offences alleged. In Rajesh Bajaj Vs. State NCT of Delhi and Others, AIR 1999 SC 1216 : (1999) CriLJ 1833 : (1999) 1 Crimes 136 : (1999) 2 CTC 243 : (1999) 2 JT 112 : (1999) 1 SCALE 697 : (1999) 3 SCC 259 : (1999) 1 SCR 1012 : (1999) 1 UJ 685 : (1999) AIRSCW 881 : (1999) 2 Supreme 442 , it has been held that all ingredients of the offence need not be verbatum reproduced. If factual foundation is available, the court should not quash the criminal proceedings. In the present case, it is alleged, the act of denotification is the result of conspiracy. The office of Trust has been misused. The denotification has resulted in pecuniary gain to the accused persons. No public interest was involved. The act of denotification is contrary to law and to favour a person who was not the owner and who was not in possession when the request for denotification was made. The allegations in the present case require investigation. No doubt, the court can quash the proceedings if the allegations are baseless or they do not constitute any offence. In the present case, the nature of allegations require investigation. Therefore, the investigation cannot be stalled. The offences alleged i.e., conspiracy, misuse of office of Trust, pecuniary gain to accused persons do not form part of official duty. Merely because political opponent has made the complaint it cannot be thrown out. The Hon''ble Supreme Court in Parkash Singh Badal and Another Vs. State of Punjab and Others, AIR 2007 SC 1274 : (2007) CLT 567 Supp : (2007) 1 JT 89 : (2006) 13 SCALE 54 : (2007) 1 SCC 1 : (2006) 10 SCR 197 Supp : (2007) AIRSCW 1415 : (2006) 8 Supreme 964 has observed at para 62 that complaint by a political rival has no bearing on investigation or the complaint. In the same decision at para. 38 it has been observed as follows;

"38. The question relating to the need of sanction under section 197 of Cr.P.C. is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceedings. The question whether sanction is necessary or not may have to be determined from stage to stage."

In Matajog Dobey Vs. H.C. Bhari, AIR 1956 SC 44 : (1955) 28 ITR 941 : (1955) 2 SCR 925 , the Hon''ble Supreme Court has observed as follows:

"The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case."

In P.K. Pradhan Vs. The State of Sikkim represented by the Central Bureau of Investigation, AIR 2001 SC 2547 : (2001) CriLJ 3505 : (2001) 3 Crimes 323 : (2001) 5 JT 610 : (2001) 4 SCALE 508 : (2001) 6 SCC 704 : (2001) 3 SCR 1119 : (2001) AIRSCW 2648 : (2001) 5 Supreme 289 the Hon''ble Supreme Court has observed as follows:

"It is well settled that question of sanction under section 197 of the Code can be raised any time after the cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial."

It is clear, question of sanction may arise from stage to stage and it may have to be determined from stage to stage.

Having regard to the nature of allegations and in the circumstances of the case, the matter requires investigation. The Special Judge has heard the counsel for the complainant, considered the allegations made in the complaint and material on record and has formed an opinion that the matter requires investigation. Consequently, the Special Judge has referred the matter for investigation. The order indicates application of mind to the allegations made in the complaint and also to the material on record. Therefore, the impugned order does not call for interference.

Accordingly, the criminal petition is dismissed. The proceedings in PCR No. 9/2012 and Cr. No. 60/2012, Lokayukta Police, Bengaluru City, can continue.

I.A. 1/2013 and I.A. 1/2015 do not survive for consideration and accordingly, they are rejected.

De-link Crl. P. No. 3993/2012 and post it before the concerned Bench as per roster.