Satish and Others vs The State and Saheb Gouda

Rathnakala, J.—Heard the learned counsel for the petitioners and also learned Special Public Prosecutor for the Lokayukta. The fact is that the petitioners herein are the employees/officials of Taluka Panchayat, Shahapur of Gogi Government and some are the employees of Taluka Panchayat, Shahapur. The complaint is in respect of offence u/s 13(c)(d) and 13(2) of Prevention, of Corruption Act, 1988 and 468, 471, 406, 420 r/w. Section 149 of IPC.

The allegation of the prosecution is that the petitioners have misappropriated the funds allotted under Gramina Ashraya, Gramina Ambedkar and Indira Awaz Housing Schemes for the period of 2005-06 to 2009-10. Complaint was submitted before the Special Judge and the Special Judge acting u/s 156(3) of Cr.P.C. referred the matter to jurisdictional Lokayukta for investigation. It is at that stage, the petitioners have come up before this Court challenging the validity of cognizance taken by the Special Court without there being previous sanction from the competent authority i.e., State Government/CEO of Jilla Panchayat.

The matter is squarely covered by the Judgment of this Court reported in Sri. M.K. Aiyappa Vs. The State of Karnataka, Sri. Anil Kumar, Sri. Harish and Sri. Muniveerappa, in which the order of the Special Judge in referring the complaint for investigation so also the complaint registered for the offence under Prevention of Corruption Act, is quashed. In the said case it was noticed:

...the court below could not have even taken notice of the private complaint unless the same was accompanied by a sanction order, irrespective of whether the court below was acting at the pre-cognizance stage or the post-cognizance stage, if the complaint pertains to a public servant who is alleged to have committed offences in the discharge of official duties.

The Apex Court upheld the above order of the High Court and the judgment is reported in AIR 2013 SC (Cri) 2202 while disposing of the Criminal Appeal No. 1590 of 2013 dated 01.10.2013 preferred against the above judgment by the complainant the Apex Court quoted its own judgment reported in Criminal Appeal No. 257 of 2011 (reported in General Officer Commanding Vs. CBI and Another, and opined as follows: (para 55 of AIR) paragraph 14 as below:

Thus, in view of the above, the law on the issue of sanction can be summarized to the effect 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.... 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.

It is evident in the case on hand before referring the complaint for investigation sanction from the Competent Authority is not obtained to prosecute the petitioners who are the State Government officials. Hence, the private complaint registered in P.C. No. 4/2011 and consequently order of reference for investigation in respect of offence u/s 13(c)(d) and 13(2) of Prevention of Corruption Act is vitiated and liable to be quashed. The complainant has also quoted provisions of IPC along with provisions of Prevention of Corruption Act. Since both-sets of statutes are founded on same set of allegation i.e., ''misappropriation of public funds by the public servants'' independent investigation in respect of offence under IPC is not called for and the entire complaint is liable to be quashed.

Accordingly, petition is allowed.

Private complaint in P.C. No. 4/2011 on the file of Special Judge, Yadgiri against the petitioners herein and all the proceedings pursuant to the above complaint is quashed.