Ramegowda vs State of Karnataka and Others

Rathnakala, J.—First respondent/Lokayuktha Police have registered a case against the petitioner herein in respect of offence punishable under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act (hereinafter referred to as ''the Act''), 1988 and 120-B , 468 and 471 of IPC, on the complaint of the second respondent. Initially complaint was filed arraying 13 accused persons, subsequently, by way of a memo, this petitioner being the then Special Deputy Commissioner of Bangalore District was also brought on record as 14th accused.

The essence of the allegation against the accused persons is, the lands in Sy. No. 101/P1, 101/1 and 103 of Arekere Village, Begur Hobli, Bangalore South Taluk, were acquired for the purpose of formation of 9th Phase, J.P. Nagar, Bangalore, vide Gazette Notification dated 22.7.1991. Accused Nos. 1 to 13 claiming to be the previous owners of the said land, the first accused sought for denotification of the land on the pretext of maintaining Nursery and greenery and the land was denotified subject to condition that he maintains the land as Nursery only; with liberty to the Bangalore Development Authority to acquire the land for its scheme in the event of violation of condition. Accused Nos. 4 to 11 and 14 being the public servants joined hand with accused No. 1 and changed the nature of the land. Though it was not permissible to get the land converted for non-agricultural purpose, this petitioner/the then Special Deputy Commissioner/the Chairman of the Single Window Committee in respect of land conversion, gave a report on 28.10.2006 that the land was changed for non-agricultural purpose and the same was cleverly misused by the third accused. 20 guntas of land was converted for extraneous reason ignoring the legal formalities. Layout plan was approved. There is indiscriminate sanction and approval to allow Apartments to come up. Accused No. 4/the then Commissioner of B.B.M.P; accused No. 5/the then Commissioner of B.D.A; accused No. 6/the then Chairman of B.D.A.; accused No. 7/the then Town Planning Member and accused No. 8/the then Deputy Commissioner have played decisive roles to get the land approved by suppressing the facts. Though relevant and true facts were brought to the notice of the concerned authorities, no action is taken.........

The learned Magistrate on presentation of the complaint, on giving audience to the complainant acting under Section 156(3) of Cr.P.C, referred the matter for Police investigation. Reason assigned by the Special Judge in the body of his order is, thorough and proper investigation in the matter is necessary and same is to be conducted by the Superintendent of Police, Karnataka Lokayuktha, by forming a team of investigation. The learned Judge did not spell out as to whether the complaint allegation in itself discloses the commission of a cognizable offence against each of the accused, more particularly against this petitioner.

Sri. Chidanandayya L. M., learned Counsel appearing for the petitioner submits that, though the order of the learned Special Judge indicates that he has perused the complaint and given his audience to the complaint, it does not indicate application of mind of the Judge to the complaint allegation, as such, the petitioner herein was not arrayed as the accused in the complaint. It is on the basis of a memo, which was annexed subsequently, he is arrayed as 14th accused, that is how there is not even a filament of allegation against the petitioner in the complaint. The petitioner being the Special Deputy Commissioner, he cannot take decision either to grant or refuse the grant of permission under Section 95 of the Karnataka Land Revenue Act, 1974 (''the Act'' for short). As per the Government Circular dated 2.7.2005, any person seeking for conversion of an agricultural land for non-agricultural purpose is required to make application to the Tahsildar of the Taluk and it is the duty of the Tahsildar to enquire all the documents including acquisition, denotification and ownership, etc. and submit a report to the Committee for consideration of the said application. Said Committee only takes a decision either to grant or reject the application filed under Section 95 of the Act. All the Departments/Stakeholders for consideration of the applications are the members of the Committee and the entire Committee is required to consider the applications. As per the official documents, the Tahsildar on receipt of the application for conversion of the land from one M.R. Ramesh, the Revenue Inspector to submit a status report of the lands, who in turn conducted the spot mahazar on 29.1.2005 and reported that land is a private land. It was the lapse on the part of the Tahsildar in not reporting whether the land is acquired or not and whether there is notification/denotification of the land or not. The Committee consisting of all the officials including the officials of the B.D.A. decided to permit use of the schedule property for non-agricultural residential purpose. The representative of the Commissioner of B.D.A., at the time of consideration of the application by the Committee did not bring to the notice of the Committee about the lands having been acquired and denotified with conditions. Even if final notification is issued notifying for acquisition, then also the Committee constituted under Section 95 of the Act is competent to consider the application for conversion of the said land for residential purpose. After resolution of the Committee, it is the Planning Authority, such as Bangalore Development Authority, that will have to sanction the plan for construction of the building The BDA has sanctioned the license plan on the application made by the owners of the land thereby permitting the land owners and the developers to build multistoried residential building For the purpose of issuing an Official Memorandum, the Special Deputy Commissioner addressed a letter to the B.D.A on 22.12.2005, enquiring as to whether any licence plan has been granted. The Engineer of the B.D.A. replied that they have already sanctioned the plan and he requested the Special Deputy Commissioner to issue the Official Memorandum under Section 95 of the Act, permitting to use the land for residential purpose. After making all reasonable enquiries for almost ten months of the decision of the Committee, the Official Memorandum is issued. At the stage of Official Memorandum also, there was no complaint against this petitioner or any members of the Committee. The complaint now brought against this petitioner after a lapse of seven years is highly belated. The important of all is, since the petitioner is a public servant within the meaning of Section 2(c)(r) & (viii) of the Act, the complaint against him cannot be entertained without the previous sanction of the State Government under Section 19 of the P.C. Act. Even otherwise, the acts done by him as the Chairman of the Committee is protected by Section 196 of the Karnataka Land Revenue Act, 1964. Since it is a denotified land, there is no bar to grant permission for use of land for non-agricultural land under Section 95 of the above said Act. Hence, receiving a complaint against him, referring the matter for Police investigation and registration of the FIR is illegal, without the authority of law and liable to be quashed by invoking the jurisdiction of this Court under Section 482 of Cr.P.C.

The reply from Sri Venkatesh P. Dalwai, learned Special Public Prosecutor appearing for respondent No. 1/Lokayuktha Police and Sri M.R. Vijayakumar, learned Counsel for respondent No. 2 is, it is clear from the records that the learned Special Judge referred the complaint for investigation vide order dated 18.2.2012. The petitioner approached this Court after 1 1/2 years thereafter i.e., on 5.8.2013 and at his instance, further proceedings were stayed so far the petitioner was concerned. By that time, the investigation was almost complete and final report was prepared, charge sheet is filed to the Court and the investigation discloses the involvement of this petitioner in the alleged offence. In that view of the matter, the petition has become infructuous. Sanction to prosecute under Section 19 of the Act is not a mandatory requirement to launch investigation or to charge sheet the accused, that fact depends on the nature of allegation in a given case.

The learned Special Public Prosecutor while addressing the question of sanction under Section 19 of the P.C. Act submits that, the Apex Court in a judgment reported in Abhay Singh Chautala Vs. C.B.I., in the matter of Abhay Singh Chautala v. Central Bureau of Investigation has categorically dealt with the requirement of sanction under Section 19 of the P.C. Act. If the accused on the date of taking cognizance continues to be a public servant, but if is working in a different capacity or is holding a different office than the one alleged to have been abused, then no sanction is required. In Ajoy Acharya Vs. State Bureau of Inv. against Eco. Offence, on finding that the accused had relinquished his position much before the charge sheet was filed, it was held that sanction was not required. It is a matter of evidence as to whether mandatory requirement of the sanction is warranted or not and it is only after the trial, the Court with the benefit of the evidence recorded, can find out whether the offences alleged are contemplated under the Act calling for sanction to prosecute or not (placing reliance on the judgment of the Apex Court in Chandan Kumar Basu Vs. State of Bihar, . Learned Special Public Prosecutor hastens to submit that this Court in Criminal Petition No. 4024/2012 D.D. 27.7.2015 on a survey of the earlier judgments of the Apex Court has taken the view that the question of sanction may arise from stage to stage and it may have to be determined from stage to stage.

Learned Special Public Prosecutor further stressed on the judgment of the High Court of Judicature of Patna in Criminal Miscellaneous No. 29926/2011 (web copy furnished) in which the learned Single Judge on a travel through the precedents was of the view that, it would be grossly a premature to set aside the order of cognizance on the ground of want of cognizance in the cases where no sanction is required; in the case of Anil Kumar and Others Vs. M.K. Aiyappa and Another, , the Apex Court while endorsing the judgment of the High Court did not answer as to how and why sanction was required at pre-cognizance stage. Further the learned Special Public Prosecutor relying on the earlier judgment in R.R. Chari Vs. The State of Uttar Pradesh, submits that, at the stage of referring the matter for investigation, it cannot be said that the Magistrate has taken cognizance of the matter and this Court having examined the position of law of the Apex Court in Criminal Appeal No. 708/2014 dated 31.3.2014 wherein it was held that investigation cannot be scuttled for want of sanction, dismissed the petition of the accused persons. In the light of the above, none of the contentions can be entertained in the present petition. Since the investigation is complete, it is up to the petitioner to challenge the charge sheet if so advised before the Trial Court and the petition does not deserve relief under Section 482 of Cr.P.C.

As observed above, there was no allegation of any sort against this petitioner in the original complaint. Admitting for a while the rival contention that at the time of referring the matter for investigation sanction was not necessary, then also, the Lokayukta will not stand to gain for the reason to follow:

"After investigation the Investigating Officer has prepared his final report and finds material against this petitioner in respect of the offences under Section 13(1)(d) r/w. 13(2) of the Act."

The specific case of the prosecution against the petitioner is, ''being the Special Deputy Commissioner at the relevant point of time, he was the President of the Single Window Committee as per the Government Order in respect of conversion of lands. It was a Committee of 12 members. At the relevant sitting held on 15.12.2005, accused No. 13 who appeared on behalf of the Commissioner of BDA submitted a report as per Schedule 5 in respect of the usage of the land only, by suppressing the fact of conditional denotification accorded in respect of the land. This petitioner being the Chairman of the Single Window Committee ought to have procured the entire information and records and verified the same when accused No. 13 had not made any reference in his report about the acquisition of the said land. Thereby, he failed to issue order for conversion of the land in accordance with law. He has misappropriated his official position for the benefit of the 3rd accused and has passed the illegal order of conversion''. At the same stroke, the prosecution has charge sheeted other accused under the provisions of Sections 468 , 471 , 420 and 120B of IPC along with Section 13(1)(c) of the Act.

Section 13(1)(c) of the Act on which count petitioner is brought to book, contemplates "if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do. It is a fact that this petitioner as the Chairman of the Single Window Committee has ordered for conversion of the land for non-agriculture purpose, it is not as if said order was his unilateral decision. He has acted upon the respective reports placed before him by the concerned Departments. There is legal presumption under Section 114(e) of the Evidence Act, that judicial and official acts are properly performed. However, this presumption is rebuttable until contrary is proved. It is not the allegation of the prosecution that he has intentionally and deliberately overlooked any of the material available on record in respect of the property ordered for conversion. It is not the case of the prosecution that this petitioner has any other personal relationship with accused No. 3 for whose benefit the land is converted. He has placed reliance on the official reports tabled before him. It may also be true that he could have been more alert and diligent by voluntarily calling for the entire records pertaining to the acquisition of the land, if that was done, he could have trapped the mischief mongers. The corollary of his entire act and omission does not admit criminality so as to bring home the offence under Section 13(c) of the Act. It is not the case of dishonest and fraudulent misappropriation of the property entrusted to him. At the most, he can be attributed lack of due diligence in dealing with the matter.

The contention that without the prior sanction from the Government, the Special Judge could not have entertained the complaint against him, finds force for the simple reason that he is not alleged to have committed offence under Indian Penal Code, 1860. Definitely, prior sanction is warranted at the stage of taking cognizance having regard to nature of allegation in respect of act performed by him while exercising his authority vested in him as the Chairman of a Statutory Committee. How can a Society expect efficient service from a public servant, who is subjected to the menace of false speculative and malicious complaints and ever haunting investigations/criminal prosecutions. It is the honest and sensitive public servants, who are worst hit by the tyranny of malicious prosecutions. I would have endorsed the contention of the respondents, had if there was any allegation against the petitioner of diffraction from his regular official duty or if he was shown to have crossed his official propriety. The Apex court in Dr. Subramanian Swamy Vs. Dr. Manmohan Singh and Another, , relying on its own judgment reiterated the view taken by the three-Judge Bench that ''A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction fit is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty'' and the said principle aptly applies to the case of the petitioner. In a recent case of Inspector of Police and Others Vs. Battenapatla Venkata Ratnam and Others , when the allegation against the public servant (Sub-Registrar) was in respect of cheating, fabrication of records and misappropriation, the Apex Court held that ''their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to Revenue'', thereby, disapproved the order of the High Court in quashing the criminal proceedings for want of sanction. But in the case on hand, the complaint is silent as against this petitioner and the Investigating Officer after investigation corners him in respect of the offence under Section 13(1) of the Act only and the requirement of prior sanction under Section 19 of the Act is a must, particularly to prosecute the petitioner of this case. At this moment itself it needs to be clarified that this observation is not a formula of universal application and depends upon the fact and circumstances of each case.

The Apex Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, listed the categories of FIRs, which qualify for quashing at the threshold itself under the jurisdiction of Section 482 of Cr.P.C./Article 226 of the Constitution of India:

"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(2).......

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(4).......

(5).......

(6).......

(7)......."

The above two illustrations squarely apply to the case on hand. However, respondent would submit that since the charge sheet is filed, petitioner can very well seek for discharge before the Trial Court, if he is so entitled. It is the settled proposition that the High Court would restrain from exercising its jurisdiction under Section 482 of Cr.P.C. when equally efficacious remedy is available under the Code.

From a bare perusal of Section 482 of Cr.P.C, it is clear that the object of exercise of power under this Section is to prevent abuse of process of Court to secure ends of justice. In Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others, , the Apex Court observed thus:

"The power under Section 482 of the Code should be used sparingly and with circumspection to prevent abuse of process of court, but not to stifle legitimate prosecution. There can be no two opinions on this, but, if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of court, the power under Section 482 of the Code must be exercised and proceedings must be quashed."

In M/s. Medchl Chemicals and Pharma P. Ltd. Vs. M/s. Biological E. Ltd. and Others, the Apex Court observed thus:

"..... In the event, however, the court on a perusal of the complaint comes to a conclusion that the allegations leveled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount."

That addresses the contention raised by the respondents about the feasibility of this Court exercising its jurisdiction under Section 482 of Cr.P.C. The law on the point is deduced by the Apex Court in its judgment in Rishipal Singh Vs. State of U.P., as under:

"What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the Court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the court can exercise the power under Section 482 Cr.P.C. While exercising the power under the provision, the courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial court and dwell into the disputed questions of fact."

For the discussion supra, I am convinced that the prosecution against the petitioner is uncalled for and cannot be sustained anymore.

Accordingly, the petition is allowed.

The complaint in P.C.R. No. 8/2012 pending on the file of the Special Judge for Prevention of Corruption Act, Bangalore Urban District, Bangalore City, and the consequential criminal proceedings/charge sheet against this petitioner, is hereby quashed.