Sri. S. Muniraju vs Sri. Puttaswamy

H.N. Nagamohan Das, J.—In this petition the petitioner has prayed for setting aside the order dated 02.11.2011 in P.C.R. No. 24/2011 passed by the Special Judge for Prevention of Corruption Act and XXIII Additional City Civil and Sessions Judge, Bangalore city and also to quash the entire proceedings. Respondent herein filed a complaint on 31.10.2011 against the petitioner and 4 others for the offences punishable u/s 9, 10, 13(1)(d) of Prevention of Corruption Act (for short ''the P.C. Act'') and also for the offences punishable u/s 120B, 464, 468 and 471 IPC. In the complaint it is alleged that one Mallamma is the owner of lands in survey No. 12/1 measuring 1 acre 15 guntas situated at Kereguddadahalli, Chikkabanawara, Yeshwanthpur Hobli, Bangalore north taluk. Without the knowledge, consent and behind the back of the original owner Mallamma the petitioner purchased a portion of the land in question from one Keshava Murthy under a registered sale deed dated 04.09.1995. The said Keshava Murthy earlier purchased the same under sale deed dated 19.02.1991. Petitioner being the Member of Legislative Assembly abused his power, got his name mutated in the revenue records on 16.09.2009 with a tacit understanding with respondent Nos. 4 and 5. The alleged sale in favour of petitioner, his vendor and the revenue records are all got up with an intention to defraud the original owner Mallamma who is none other than the mother-in-law of the petitioner. These transactions and the revenue entries are all based on a fabricated partition deed dated 02.07.1976.

The Special Judge under the impugned order dated 02.11.2011 referred the matter to the Lokayukta police for investigation and to submit a report u/s 156(3) of Cr. P.C. Being aggrieved by the impugned order the petitioner is before this Court.

This Court vide order dated 21.11.2011 granted an interim order of stay restraining the Lokayukta police from proceeding with the matter. Further this Court vide order dated 02.12.2011 vacated the interim order of stay and allowed the Lokayukta police to investigate the matter subject to certain conditions. The Lokayukta police completed the investigation and have now filed a charge sheet before the Special Judge on 09.03.2012. The Special Judge had taken cognizance of the offence and summons are issued.

Sri. C.V. Nagesh learned Senior counsel for the petitioner contends that the very initiation of complaint against the petitioner before the special Judge without necessary sanction from the concerned authority is void-ab-initio and as such the impugned order and the entire proceedings are liable to be quashed. The alleged original owner Smt. Mallamma became unsuccessful before the Civil Court, revenue Court and before the concerned authorities. Now the respondent claiming to be the son-in-law of Smt. Mallamma has filed the present complaint with an intention to harass the petitioner and by abusing the due process. Even if the entire allegations made in the complaint are taken as true then the same will not constitute an offence against the petitioner. The special Judge mechanically passed the impugned order directing the Lokayukta police to investigate the matter without application of mind. When the very initiation of the complaint is void-ab-initio then the further orders including the charge sheet filed by the police and the order taking cognizance of the offence are all liable to be set aside. Reliance is placed on number of decisions.

Per contra Sri. Venkatesh Dalwai, learned counsel for the respondent contends that during the pendency of this petition the Lokayukta police investigated the matter, charge sheet is filed and the special judge had taken cognizance of the offence and issued summons. The petitioner has not questioned the charge sheet submitted by the Lokayukta police and the order taking cognizance of the offence and therefore the prayer in the writ petition had become infructuous. Even the Lokayukta police who investigated the matter and submitted the charge sheet are not made party to these proceedings. On this ground also the petition is liable to be dismissed. It is further submitted that the Speaker of the Karnataka Legislative Assembly vide order dated 23.06.2012 granted permission to prosecute the petitioner. The investigating material manifestly specifies that the petitioner abused his office as Member of Legislative Assembly for personal gain. Reliance is placed on number of decisions.

Heard arguments on both the side and perused the entire petition papers. On the basis of pleadings and arguments the following point will arise for consideration in this petition.

Whether the very initiation of the complaint before the Special Judge is void-ab-initio and consequently the order of sanction, the impugned order, charge sheet and the order taking cognizance of the offence are all bad in law?

The offence alleged against the petitioner are both under the provisions of the P.C. Act and I.P.C. During the pendency of this petition the Lokayuktha police investigated the matter and has now filed a charge sheet on 09.03.2012. Thereafter the special Judge had taken cognizance of the offence and issued summons. Further it is seen that the Speaker of the Karnataka Legislative Assembly vide order dated 23.06.2012 granted permission to prosecute the petitioner. In this background it is necessary to examine the point framed above.

Admittedly the petitioner is a sitting member of the Karnataka Legislative Assembly and he is a public servant. u/s 19 of the P.C. Act and also u/s 197 Cr. P.C. sanction is necessary to prosecute the petitioner. The Supreme Court interpreted the application of Section 19 of the P.C. Act and also Section 197 of Cr. P.C. in several decisions. Some of the important decisions for the purpose of this case are as under:

The Supreme Court in Matajog Dobey Vs. H.C. Bhari, held as under:

(f) Criminal P.C. (1898) S. 197 - When is the need for sanction to be considered.

It is not always necessary that the need for sanction under S. 197 is to be considered as soon as the complaint is lodged and on the allegations therein contained. 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 progress of the case. AIR 1939 43 (Federal Court) Rel. on.

The Supreme Court in State of Kerala Vs. V. Padmnabhan Nair, held as under:

The correct legal position, therefore, is that an accused facing prosecution for offences under the PC Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. So the High Court was at any rate wrong in quashing the prosecution proceedings insofar as they related to offences under the PC Act.

That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120B of IPC sanction u/s 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the correct legal position in Shreekantiah Ramayya Munnipalli Vs. State of Bombay, and also Amrik Singh Vs. State of Pepsu that it is not every offence committed by a public servant which requires sanction for prosecution u/s 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad as follows : (SCC p. 115, para 66)

As far as the offence of criminal conspiracy punishable u/s 120B, read with Section 409, Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction u/s 197 of the Code of Criminal Procedure is therefore, no bar.

The Supreme Court in P.K. Pradhan Vs. The State of Sikkim represented by the Central Bureau of Investigation, held as under:

Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection u/s 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection u/s 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction u/s 197 of the Code can be raised any time after the cognizance; may be immediately after 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.

The Supreme Court in Raj Kishor Roy Vs. Kamleshwar Pandey and Another, held as under:

In this case, as indicated above, the complaint was that the 1st Respondent had falsely implicated the Appellant and his brother in order to teach them a lesson for not paying anything to him. The complaint was that the 1st Respondent had brought illegal weapon and cartridges and falsely shown them to have been recovered from the Appellant and his brother. The High Court was not right in saying that even if these facts are true then also the case would come within the purview of Sec. 197 Cr. P.C. The question whether these acts were committed and/or whether 1st Respondent acted in discharge of his duties could not have been decided in this summary fashion. This is the type of case where the prosecution must be given an opportunity to establish its case by evidence and an opportunity given to the defence to establish that he had been acting in the official course of his duty. The question whether the 1st Respondent acted in the course of performance of duties and/or whether the defence is pretended or fanciful can only be examined during the course of trial. In our view, in this case the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of trial.

The Supreme Court in K. Kalimuthu Vs. State by D.S.P., held as under:

The protection given u/s 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. 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 the 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 his 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 this 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 complaint case.

The Supreme Court in Dr. Subramanian Swamy Vs. Dr. Manmohan Singh and Another, held as under:

In Kalimuthu case, the only question considered by this Court was whether in the absence of requisite sanction u/s 197 Cr. PC, the Special Judge for CBI Cases, Chennai did not have the jurisdiction to take cognizance of the alleged offences. The High Court had taken the view that Section 197 was not applicable to the appellant''s case. Affirming the view taken by the High Court, this Court observed :(SCC p. 521, para 15)

The question relating to the need of sanction u/s 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. Further, in cases where offences under the Act are concerned, the effect of Section 197, dealing with the question of prejudice has also to be noted.

From the above judgments it is manifest that the offence alleged under the P.C. Act and under I.P.C. are interrelated and it is not possible to split up. The need for sanction need not be a condition precedent to prosecute a public servant. At different stages of the proceedings the Court may examine and give a finding with regard to the need for sanction and the same depends on the facts and circumstances of each case. Further when the provisions of the P.C. Act and I.P.C. are invoked then sanction is not necessary since they are cognate offences. Further the Supreme Court in Subramanian Swamy''s case held that it is the duty of the Court to interpret the law relating to anti corruption in such a fashion as to strengthen the fight against corruption. In the instant case the Speaker of the Karnataka Legislative Assembly granted permission to prosecute the petitioner, the Lokayuktha police after investigation filed charge sheet and now the Special Judge had taken cognizance of the offence and had issued summons. The petitioner has not questioned the order of Speaker, the charge sheet and the order taking cognizance of offences. In the circumstances I am of the considered opinion that the point framed above is to be answered in negative.

The law laid down by this Court in the case of Sri. B.V. Acharya Vs. Sri. N. Venkateshaiah, W.P. No. 14047/2012, disposed on 03.08.2012, is not applicable to the facts of this case. In B.V. Acharya''s case there was no order of sanction, no charge sheet was filed and the jurisdictional Court had not taken cognizance of the offence. But, in the instant case there is the order of sanction, charge sheet is filed and cognizance of the offence is taken. In the circumstances the law laid down by the learned Single Judge of this Court in B.V. Acharya''s case has no application to the facts on hand. For the reasons stated above, the petition is hereby dismissed.