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Judgment
P.D. Waingankar, J.—The petitioners have filed these writ petitions under Articles 226 and 227 of the Constitution of India r/w Section 482 of Cr.P.C. to quash the complaint filed against them in P.C.R. No. 2/2014 and further proceedings arising out of the complaint on the file of the District and Sessions Judge, Uttara Kannada and Special Judge, to try the offences under the Prevention of Corruption Act, for the offences punishable under Sections 13(1) (a) , 13(1)(b) , 13(1)(c) , 13(1)(d)(i)(ii) and Section 13(2) of Prevention of Corruption Act, 1988 and under Sections 409 , 417 , 420 r/w Section 34 of IPC by issue of appropriate writ.
Respondent No. 2-Jayanth Mukundh Tinaiker claiming to be the social worker and accredited RTI activist filed a complaint on 10.2.2014 under Section 200 of Cr.P.C. against the petitioners before the District and Sessions Judge and Special Judge to try the offences under the Prevention of Corruption Act, 1988. The gist of the allegations made out in the complaint is that the petitioners have promoted and started a Trust known as "V.R. Deshpande Memorial Trust" with its office at R.T. Nagar, Bangalore. Petitioner No. 1 is the Chairman of the Trust and his son petitioner No. 4 is the treasurer. The Trust was registered in the year 1998. petitioner No. 1 was a Cabinet Minister in 2001 in Government of Karnataka holding the portfolio of Medium and Large Scale Industries. The Karnataka Industrial Area Development Board (in short ''Board'') comes under Ministry of Medium and Large Scale Industries. The Board acquired in the year 2001 an area of 34 acres and 20 guntas of land in Hullatti village of Haliyal Taluk in Uttara Kannada District bearing Sy.Nos.113, 121, 121/1 and 121/2. Out of 34 acres and 20 guntas of land acquired by the Board, the petitioner No. 1 got allotted an area of 9 acres and 12 guntas of land to the Trust of which he is the Chairman by using his undue influence being a Minister. On enquiry by the complainant, it transpired that the use of the land has not been changed from industrial purpose to any other purpose.
Further, it is alleged in the complaint that while petitioner No. 1 was the Minister of Medium and Large Scale Industries in the Government of Karnataka, he accepted huge donations for the Trust from various industrial houses such as Jindal Steel Works, Torangal, Toyota Kirloskar, Kirloskar Engineerings, Infosys, Vishwa, Mantri Developers, S.D. Tata, Shobha Developers, Dream Logistic, World Vision, West Coast Paper Mill, Dandeli etc, and thereby he misused his office as a Minister for Large and Medium Scale Industries for getting undue favours. The act of petitioner No. 1 in receiving donations from industrial houses in the name of his Trust is nothing but illegal gratification. Therefore, the complainant filed a complaint before the Special Court so as to take cognizance against all the petitioners, who are accused Nos. 1 to 4 and to punish them as per law.
The learned Special Judge received the complaint, which was presented before him. He made an endorsement on the complaint that "it is necessary to see the complaint and as to the sanction". Hence, the Special Judge ordered to put up the complaint on 12.03.2014. The complaint came to be registered in P.C.R. No. 2/2014 for the offences punishable under Sections 13(1) (a) , 13(1)(b) , 13(1)(c) , 13(1)(d)(i)(ii) and Section 13(2) of Prevention of Corruption Act, 1988 and under Sections 409 , 417 , 420 r/w Section 34 of IPC. It appears from the order sheet that the complainant was present on 12.03.2014. He filed his written submission with regard to the necessity of prior sanction. The case came to be posted on 15.03.2014 for orders. On 15.03.2014, an order came to be passed whereby the Special Judge referred the complaint to S.P. Lokayuktha, Karwar, for investigation and report acting under Section 156(3) of the Code of Criminal Procedure.
The petitioners aggrieved by the order of receipt of the complaint filed by the complainant and the order whereby the complaint is referred to S.P. Lokayuktha, Karwar, for investigation and report sought to quash the complaint on the ground that the complaint came to be referred under Section 156(3) of Cr.P.C. in PCR. No. 2/2014 without application of mind, that the complaint is not accompanied by an order of sanction as required under Section 19 of the Prevention of Corruption Act and Section 197 of Cr.P.C, no prima-facie case has been made out to constitute any of the offences alleged in the complaint so as to refer the complaint for investigation.
I have heard both the learned counsel appearing for the petitioners/accused and respondent No. 1-Lokayuktha police and respondent No. 2-the complainant, who argued his case in person. Perused the records.
The submission of the learned counsel appearing for the petitioners/accused is that petitioner No. 4 is a successful person in getting a congress ticket for the election of Members of Parliament, petitioner No. 1 is a sitting Cabinet Minister in the Government of Karnataka, the complaint is politically motivated, it is filed to tarnish the image of the petitioner No. 1 and petitioner No. 4 his son that too on the eve of Parliamentary Elections. Further it is submitted that the allegations made in the complaint that the petitioner No. 1 accepted donations from various industrial houses is baseless and malicious, the complaint is silent as to who paid, how much donations, when they paid, where they paid, the mode of payment and what is the official favour shown to the industrial houses by the petitioner No. 1 as a Minister. Further, it is submitted that the lands were granted/allotted for a public trust which was constituted in the year 1998, the trust has been rendering yeomen service to the downtrodden people at large. It is further contended that the Special Judge erred in observing that the sanction is not necessary under the Prevention of Corruption Act is concerned, at the same time the Special Judge never spelt out anything with regard to the sanction under Section 197 of Cr.P.C. though in the complaint Sections 409 , 417 , and 420 of IPC are invoked. Further, it is submitted that no material is produced to substantiate the allegations keeping the field open for the police to collect evidence, the allegations in the complaint are vague, bald, do not disclose commission of offence. The learned special Judge without application of mind has mechanically ordered to refer the complaint for investigation. Hence, for all these reasons, the learned counsel sought to quash the entire proceedings.
In support of his arguments, the learned counsel relied upon the following decisions:--
"1. AIR 1916 SC 866 (R.P. Kapur v. State of Punjab;
Sankaran Moitra Vs. Sadhna Das and Another,
Anil Kumar and Others Vs. M.K. Aiyappa and Another,
Priyanka Srivastava and Others Vs. State of U.P. and Others "
On the other hand, the counsel appearing for the Lokayuktha police and the respondent No. 2 in person have submitted that the sanction under section 19 of the Prevention of Corruption Act or under Section 197 of Cr.P.C. is not a condition precedent to file a complaint, that the learned Special Judge on proper application of mind to the allegations made out in the complaint and after being satisfied about prima-facie case referred the complaint for investigation and report under Section 156(3) of Cr.P.C. There is no merit in the petition and hence, the petition is liable to be dismissed. The learned counsel placed reliance on the decision of the Supreme Court reported in Chandan Kumar Basu Vs. State of Bihar, , in support of his case.
Before dwelling on the merits of the case, it would be useful to recall the broad principles of law laid down by the Apex Court on the scope and ambit of the power of the High Court under Section 482 Cr.P.C. It has been laid down that inherent power under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with great caution and only when such an exercise is justified by the text specifically laid down in the section itself, only for the advancement of justice. If any abuse of process leading to injustice is brought to the notice of the court, the court would be justified in preventing injustice by invoking inherent powers.
In the case of R.P. Kapur Vs. The State of Punjab, , the Supreme Court has made some categories of cases where inherent power can and should be exercised to quash the proceedings. In the said decision, the following three broad categories are spelt out where the High Court would be justified in exercise of its inherent powers under Section 482 of Cr.P.C. They are:
"i. Where it manifestly appears that there is legal bar against the institution or continuance of proceedings.
ii. Where the allegations in the first information report or complaint taken at their face value and accepted in its entirety does not constitute the offence alleged.
iii. Where the allegations constitute an offence, but there is no legal evidence to prove the charge."
The Apex Court in the case of State of Haryana and others v. Bhajan Lal and others has also laid down that where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act(under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievances of the aggrieved party and that where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
Bearing in mind, the aforesaid principles laid down, it is to be seen whether the impugned order of the learned Special Judge referring the complaint for investigation under Section 156(3) and all further steps taken pursuant to the said order deserves to be quashed.
The complaint is filed for the offences punishable under sections 13(1) (a) , 13(1) (b) , 13(1) (c) , 13(1) (d) (i) (ii) r/w Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 409 , 417 , 420 r/w 34 IPC. The allegations made in the complaint are that the petitioners No. 2 is the wife of petitioner No. 1, and petitioner Nos. 3 and 4 are the sons of petitioner No. 1. Petitioner No. 1 is a Cabinet Minister in the Government of Karnataka, who is coming within the purview of definition of public servant as defined under Section 21 IPC. All the petitioner Nos. 1 to 4 as promoters established a Trust viz, Sri. V.R. Deshpande Memorial Trust in the year 1998 duly registered before the Charity Commissioner, Bangalore. It is the specific allegation made out in the complaint that the petitioner No. 1, while he was Minister for Medium and Large Scale Industries in the year 2001, got allotted 9 acres and 12 guntas of land out of 34 acres and 20 guntas of land in Sy.Nos.113, 120, 121/1 and 121/2 of Hulkatti village in Haliyal Taluk acquired by Karnataka Industrial Area Development Board for Industrial purpose to his Trust by undue influence on the officials of the Board as a Minister without even converting the land from Industrial purpose to any other purpose which is an illegal allotment. The further allegations made in the complaint are that the petitioner No. 1 by misusing his position as a Minister for Medium and Large Scale Industries received illegal gratification for the Trust by way of donations from various industrial houses such as Infosys, Jindal, Kirloskar, etc. Thus in the complaint itself there are averments that the petitioner No. 1 was a public servant when he got allotted 9 acres 12 guntas of the land to the Trust by misusing his office. Even at the time of institution of the complaint on 10.3.2014, the petitioner No. 1 was a Cabinet Minister. Since petitioner No. 1 got allotted the land to the Trust by undue influence as Minister he is entitled to the protection under Section 19(1) of the P.C. Act and under Section 197 Cr.P.C.
In Anil Kumar and Others Vs. M.K. Aiyappa and Another, in Head Note A-the Supreme Court held as under:--
"Public Accountability, Vigilance and Prevention of Corruption - Prevention of Corruption Act, 1988 - Ss. 19(1) and (3) - Sanction under S.19(1) -Held, is a precondition for ordering investigation against public servant under S.156(3) CrPC even at pre-cognizance stage - Non-effect of absence of sanction in some circumstances under S.19(3) - Held, does not mean that requirement of sanction is not mandatory - Private complaint against public servant under S.200 CrPC - Reference of complaint by Magistrate under S.156(3) Cr.P.C - for investigation by police - No sanction order under S.19(1) , PC Act, 1988 - Reference, not valid - Investigation under S.156(3) Cr.P.C cannot be ordered without previous sanction under S.19(1) , PC Act, 1988 - Criminal Procedure Code, 1973, Ss.197 , 200 , 202 , 156(3) and 482 ."
In Sankaran Moitra Vs. Sadhna Das and Another, in Head ''A'', the Supreme Court held as under:--
"Criminal Procedure Code, 1973 - S. 197 -Requirement under, of obtaining sanction to prosecute a public servant - Necessity of- Stage for raising question as to applicability of S.197 - Held (per majority), prosecution hit by provision under S. 197 cannot be launched without the contemplated sanction - It is a condition precedent though the question as to applicability of S. 197 may arise not necessarily at the inception but even at a subsequent stage - Request to postpone the decision on the said question in the instant case, held, not acceptable -Complaint that deceased, a supporter of a political party, was beaten to death by police personnel at the instance of appellant police officer near a polling booth on election day - Appellant was on duty to prevent any breach of law and maintain order on that day - He had reached the spot on receiving information regarding some disturbances at the polling booth - Held, appellant committed the act in question during the course of performance of his duty - Sanction under S. 197(1) was necessary for his prosecution - High Court''s judgment taking contrary view set aside - High Court''s reasoning that killing of a person by use of excessive force could never be performance of duty, not proper - Its further reasoning that if High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, is also not acceptable."
In the decision relied upon by the Respondent No. 2 complaint reported in Chandan Kumar Basu Vs. State of Bihar, it has been held that 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 proceeding. But in the case on hand the averments contained in the complaint are such that the complaint should not have been received and referred under Section 156(3) of Cr.P.C. without an order of sanction. Therefore the decision relied upon by the respondent come to the help of respondent No. 2 the complainant.
From the aforesaid decision of the Supreme Court, it is clear that the sanction both under Section 19(1) of the Prevention of Corruption Act and under Section 197 Cr.P.C. is indispensable to file a complaint and refer it under Section 156(3) of Cr.PC. The requirement of pre-requisite sanction is only to ensure that public servants discharging their official duties are not harassed by filing frivolous complaint. Therefore, receipt of the complaint and referring the complaint under Section 156(3) of Cr.P.C. for investigation by the Special Judge is not valid for want of sanction and therefore the entire proceedings are vitiated. The observation made by Special Judge that sanction is not a condition precedent and the question regarding sanction can be gone into at any stage of the proceeding is contrary to the law laid down by the Apex Court in the aforesaid decision. If on the face of it, the complaint indicates that the acts alleged are committed in the course of the discharge of the official duty, then the requirement of compliance of Section 197 Cr.P.C. comes into picture. Therefore, in the face of the allegations made in the present complaint against petitioner No. 1, sanction both under Section 19(1) of the P.C. Act and Section 197 of Cr.P.C. was a must. Since no previous sanction is obtained, the proceedings are liable to be quashed due to express legal bar to take cognizance.
As rightly pointed by the learned counsel for the petitioners that no material has been produced in support of the allegations made out in the complaint as to who paid the donations, when, how, what is the amount paid and the mode of payment. The persons who said to have paid donations are not arrayed as accused in the complaint. It appears that the complainant expects the police to collect evidence for him as to the allegations made against the petitioners. The allegations are vague, bald and do not disclose the commission of offence. Moreover, the Trust of which the petitioners are trustees is a Public Trust registered before the Charity Commissioner, Bengaluru. Its objects are set out in the trust deed produced alongwith the petitions and the objects set out in the trust deed are definitely not for the benefit or well being of the trustees. The land is allotted to the Trust which is imparting technical education to the rural and downtrodden masses which comes under amenities for the industrial purpose. There is no irregularity or illegality in allotment of land by the board to the trust. It is in conformity with the notification dated 13.9.1991 issued by the Government of Karnataka under Section 2(1) of the Act 1966. Further, no-one has challenged the acquisition proceedings and the allotment made in favour of the trust for all these 13 long years. That itself speaks the hollowness of the allegations made out in the complaint. Needless to say that they are malicious and made with an ulterior motive for wrecking vengeance on the petitioner No. 1. There are absolutely no allegations made out in the complaint against petitioner Nos. 2 to 4, who are wife and children of petitioner No. 1. They are not public servants nor they have any role in allotment of land to the trust. Hence, for all these reasons, the complaint filed against the petitioners in PCR No. 2/2014 and all further proceedings arising out of the said complaint are liable to be quashed.
Accordingly, petition is allowed. The proceedings are quashed.