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Judgment
N. Ananda
The petitioner has sought for quashing the averments of PCR No.27/2011 as they relate to petitioner herein and setting aside the order dated 03.12.2011, passed u/s 156(3) Cr.P.C., in PCR No.27/2011, referring the complaint to Additional Director General of police, Lokayukta, for investigation and quashing first information report in Crime No.63/2011, registered by Lokayukta police as they relate to petitioner herein.
I have heard Sri Uday U.Lalit, learned senior counsel for petitioner, Sri S.G.Rajendra Reddy, learned counsel for I-respondent/Lokayukta police and II respondent/party-in-person Sri T.J.Abraham.
The brief facts necessary for decision of this petition are as follows:-
A complaint u/s 200 Cr.P.C. in PCR No.27/2011 was filed in the court of learned Special Judge at Bangalore, against the petitioner amongst others, alleging offences punishable under sections 13(1)(d) 13(1)(e) & section 13(2) of the Prevention of Corruption Act, 1988, offences punishable under sections 104 and 104(c) of the Karnataka Forest Act, 1963; the Forest (Conservation) Act, 1980; Mines and Minerals (Development and Regulation) Act, 1957 and also offences punishable under sections 204, 405, 406, 463, 465, 468, 471 IPC r/w sections 423 & 120B IPC. The learned Special Judge has referred the complaint u/s 156(3) Cr.P.C., in terms of the impugned order.
It is not in dispute and cannot be disputed that the complainant has predominantly relied upon the facts stated in the Lokayukta report dated 18.12.2008, which was pursuant to reference made by the Government of Karnataka in exercise of powers u/s 7(2-A) of the Karnataka Lokayukta Act. 1984 (hereinafter referred to as ''Lokayukta Act'') vide G.O.No.CI 164 MMM 2006 dated 12.03.2007. The report of Lokayukta u/s 12(3) of the Lokayukta Act was submitted to the State Government on 18.12.2008.
The gist of allegations made against petitioner in the complaint, which has been referred u/s 156(3) Cr.P.C., is as follows:-
I. That during the tenure of petitioner as the Chief Minister of Karnataka from 25.10.1999 to 28.05.2004, at the instance of petitioner, an agreement was entered into between M/s.Mysore Minerals Ltd. (hereinafter referred to as "MML") and M/s.Kalyani Ferrous Company, wherein MML had agreed to pay interest at the rate of 10% per annum on the security deposit of Rs.6 crore, which amount was deposited by Kalyani Ferrous Company as advance amount for purchase of iron ore from MML. In furtherance of such agreement, MML paid a sum of Rs.2.5 crore as interest to M/s.Kalyani Ferrous Company though there is no provision for payment of interest on advance/security deposits. This was a favour to M/s.Kalyani Ferrous Company at the cost of MML.
II. During the stewardship of petitioner as the Chief Minister of Karnataka, a Memorandum of Understanding was entered into between MML and Vijayanagara Mines Pvt. Ltd. pursuant to which a mine area called "Thimmappanagundi mines" was placed at the disposal of Vijaynagara Mines Pvt. Ltd. The MML failed to collect premium of 10% and 6% of the prevailing market price of iron ore. There was a short payment of Rs 3.2 crore by Vijayanagara Mines Pvt. Ltd.
III. The petitioner during his tenure as the Chief Minister of Karnataka had persuaded the Managing Director of MML to enter into an agreement for sale of iron ore fines from Jambunathalli to Orient (GOA) Company. Even though, there was a clause to revise the price with effect from lst April of every year on the basis of market condition and prevailing MMTC, prices were not revised, which resulted in loss of Rs.3.23 crore to MML.
IV. The price of iron ore was grossly under rated in the invoices. The loss suffered by MML due to illegal agreements entered into between MML and aforestated companies runs to several tens of crores and also loss suffered by MML due to under rating of mining of iron ore runs to several tens of crores. These losses were due to illegal acts committed by the Managing Directors of MML during various periods at the behest of petitioner. These acts would constitute offences alleged against petitioner and Managing Directors of MML named in the complaint.
V. The petitioner had de-reserved thousands of acres of reserve forest land in Bellary and elsewhere and sanctioned it to private companies in the year 2003, despite contrary decisions of the then Minister for Forests and the then Secretary to the Government, Forest Department, who had expressed disagreement for de-reservation. These acts of petitioner resulted in destruction of vast forest area and led to large-scale illegal mining. The petitioner by the above acts has abused his position as Chief Minister of Karnataka and illegally amassed wealth in the name of his family members, including his children, in-laws and in the names of erstwhile very close cabinet colleagues of petitioner.
VI. The de-reservation order which is stated to be the decision of cabinet meeting held by petitioner on 16.12.2003 has been destroyed. The notification dated 15.93.2003, notifying the public about availability of de-reserved forest lands to public was found in the file. The malafide, illegal and anti state, corrupt intention of de-reserving forest area vide Notification dated 15.03.2003 is demonstrated by sudden spurt of issue of 82 permits in the year 2004 and 59 permits in the year 2006. The above acts of petitioner was a shameful beginning of destruction of reserved forest area and advent of illegal mining in the State of Karnataka, particularly, in the District of Bellary. The petitioner could be termed as the author of all mining scams. The petitioner and other accused, who were holding public offices in various capacities, have committed offences punishable under sections 13(1)(d). 13(1)(c) & section 13(2) of the Prevention of Corruption Act, 1988, offences punishable under sections 104and 104(c) of the Karnataka Forest. Act, 1963; the Forest (Conservation] Act, 1980; Mines and Minerals (Development and Regulation) Act, 1957 and also offences punishable under sections 204, 405, 406, 463, 465, 463, 471 IPC r/w sections 423 & 120B IPC.
Sri Uday U.Lalit, learned senior counsel appearing for petitioner has made following submissions:-
I. The allegations of complaint, which are reiterations of report of Lokayukta dated 18.12.2008 accepted on their face value do not constitute any cognizable offence against petitioner.
II. The petitioner is neither named nor indicted in the report of Lokayukta dated 18.12.2008.
III. The petitioner cannot vicariously be held responsible for the acts alleged to have been committed by the Managing Directors of MML.
IV. The de-reservation order was a policy decision taken by the cabinet headed by petitioner as the Chief Minister of Karnataka, pursuant to National Mineral Policy, 1993. announced by the Government of India. As a part of exercise of economic reforms, focus was shifted to provide opportunities and encouragement to private sector in mining. The process of de-reservation had commenced in the year 1994.
V. There are neither allegations in the complaint nor observations in the report of Lokayukta that mining leases consequent to aforestated de-reservation were granted during the tenure of petitioner as the Chief Minister of Karnataka viz from October 1999 to May 2004.
VI. There is legal bar to initiate complaint u/s 200 Cr.P.C. The Lokayukta has submitted his report to the State Government in terms of section 12(3) of the Lokayukta Act. It is for the State Government to take action as provided u/s 12(4) of the Lokayukta Act.
VII. The Lokayukta Act would exclude the application of provisions of Criminal Procedure Code.
VIII. The Lokayukta Act being a special Act would exclude the application of provisions of Criminal Procedure Code and the provisions of Prevention of Corruption Act, 1988.
IX. The impugned order of reference u/s 156(3) Cr.P.C., manifests lack of application of mind by the learned Special Judge.
X. The investigation of vexatious and baseless allegations made against petitioner would violate the rights of petitioner under Article 21 of the Constitution of India.
The learned senior counsel appearing for petitioner has relied on following decisions:-
I. Maksud Saiyed Vs. State of Gujarat and Others,
II. Rohtas Vs. State of Haryana and Another,
III. R. Kalyani Vs. Janak C. Mehta and Others,
IV. Common Cause, A Registered Society Vs. Union of India and Others,
V. Guruduth Prabhu and Others Vs. M.S. Krishna Bhat and Others,
The learned counsel for Lokayukta police would submit that the impugned reference u/s 156(3) Cr.P.C., does not call for interference.
The II respondent/party-in-person has made following submissions: -
I. The complaint which is predominantly based on the report of Lokayukta dated 18.12.2008 is maintainable and there is no bar for initiation of complaint and consequent investigation u/s 156(3) Cr.P.C.
II. The Lokayukta after a detailed and thorough investigation has submitted the report u/s 12(3) of the Lokayukta Act. The competent authority under the Lokayukta Act. who is bound to take a time bound action u/s 12(4) of the Lokayukta Act has neither accepted nor rejected the report.
III The provisions of Prevention of Corruption Act, 1988 do not exclude initiation of complaint u/s 200 Cr.P.C.
IV. This court in exercise of powers u/s 482 Cr.P.C., cannot interfere with investigation, which is at the threshold.
V. The petitioner has not made grounds to invoke inherent powers of this court u/s 482 Cr.P.C.
VI. The learned Special Judge having regard to the complaint and taking into consideration the relevant part of report of Lokayukta was justified in referring the complaint u/s 156(3) Cr.P.C.
VII. The allegations made against petitioner, which are predominantly based on the report of Lokayukta warrant investigation u/s 156(3) Cr.P.C. in the larger interest of the State and Society.
VIII. The provisions of Lokayukta Act do not exclude application of provisions of Criminal Procedure Code.
IX. The reference u/s 7(2-A) of the Karnataka Lokayukta Act cannot be construed as a "Complaint" as defined under rule 4 of the Karnataka Lokayukta Rules, 1985 (hereinafter referred to as ''Lokayukta Rules''). Therefore, provisions of sections 9 & 14 of the Karnataka Lokayukta Act are not applicable. The provisions of section 14 of the Lokayukta Act relate to initiation of prosecution after investigation of any complaint by the Lokayukta or Upalokayukta. The provisions of section 20 of the Lokayukta Act relate to prosecution of a complainant who is found to have made a false, frivolous and vexatious complaint. These provisions have no bearing on the complaint instituted u/s 200 Cr.P.C., against persons indicted in the report submitted by Lokayukta u/s 12(3) of the Lokayukta Act.
X. In a democratic country whether a person is liable for prosecution or not is governed by the rule of law and not by the rule of majority.
In view of the aforestated submissions and contentions urged by parties, the following points would arise for determination:-
(1) Whether the averments of complaint, which are predominantly based on the report of Lokayukta (Part I dated 18.12.2008), accepted on their face value would constitute offences alleged against petitioner?
(2) Whether there is legal bar for initiation of complaint u/s 200 Cr.P.C., and investigation of complaint u/s 156(3) Cr.P.C.?
(3) Whether the impugned order calls for interference?
My findings on the above points and reasons there for are as follows: -
Point No. 1:
In paragraph 5(1) to 5(VI) supra, I have narrated gist of allegations made against petitioner and alleged illegal acts committed by petitioner in the management of MML. These allegations are dealt with under Chapter IX of the Lokayukta report dated 18.12.2008.
Before considering the allegations made against petitioner, it is necessary to refer to the genesis, constitution and main objects of MML as stated in the Lokayukta report:-
The Mysore Minerals Ltd (in short MML) was established by the Government of Karnataka in the year 1966. It is stated to be a private company within the meaning of clause (iii) of section 3(1) of the Companies Act 1956. It is stated that apart from the Memorandum of Association and Articles of Association the Company has not framed any rules, bye-laws or regulations. The regulations contained in Table A in Schedule I to the Companies Act 1956, as applicable to a private company, are made applicable to it subject to modifications contained in the Articles of Association. The activities of MML are under the M&M (D&R) Act and connected with it. The main objects of the MML, among others, are stated thus in the Memorandum of Association.
(a) To acquire and take over as a going concern the business now carried on by the State Government of Karnataka under the name and style of ''Board of Mineral Development'' with all or any of the assets and liabilities of the business.
(b) To search for minerals and precious stones and to acquire, by acquisition, or grant, mining and other rights and to win, open and work mines, quarries and minerals and precious stones, in above and under any other lands over which mining rights may be acquired by the company, and to raise, sell and dispose of minerals and precious stones to be procured there from, and to treat and make marketable, and/or convert such ores into metal, or otherwise deal with the produce of the mines and quarries and other produce of the Company.
xxx xxx xxx xxx
To act as the agent of the Government of Karnataka in the exploitation of the mining areas reserved for operation by the State, subject to such orders as may be passed by the State Government in this behalf and to appoint sub agents in furtherance of the same purpose.
To carry on trading in minerals for sale or export of minerals or for pm-poses which may seem conducive to the attainment of any of the aforesaid objects of the company."
The Board of Directors of MML, in its 141st meeting held on 30th November 1987, delegated to the Chairman and Managing Director (in short CMD) 41 items of its powers, including the power to "fix sale price and revise them from time to time depending Upon market and/or other conditions" (item 35) and to "enter into contracts for sale of ores and minerals" (item 37), for disposal of ores or minerals etc. owned by MML. The scheme envisaged by items 35 and 37 is that the price of ores or minerals etc. is to be fixed and revised from time to time as provided in item 35 and thereafter sold at the prices so fixed or revised to persons who come forward to purchase them. The defect in this scheme is that if the authority which has power to revise the price periodically depending upon the market and other conditions fails to exercise that power periodically whenever there is an increase in price, the commodity would be sold at the old price resulting in loss to MML. That is what has happened in the case of MML. Power under items 35 and 37 has considerable financial implications. If the Board had decided to dispose iron ore, iron ore fines, mud or mineral by auction or by calling for tenders or by tender cum auction method it would have been transparent, least objectionable and in the best interest of MML. It is said that since about June 2007 that is, after the Government referred the matter to Lokayukta, MML is disposing ores and minerals by tender cum auction method. According to the Articles of Association, office of Chairman and office of Managing Director of MML could be held by one person or by two different persons. Hence the power delegated by the Board in its 141st Meeting has to be exercised by a committee consisting of the Chairman and Managing Director. When the said offices are held by two different persons, the Managing Director alone cannot exercise the delegated powers unless he is also appointed as the Chairman. If both the offices are held by one person the powers get delegated to a single person. It is stated that during 2000-2006, except the period from 26/9/2001 to 12/9/2005, the Managing Director was holding the post of Chairman also. Hence during same period one person has exercised the powers delegated by the Board. Instead of giving scope for exercise of such vast financial powers under items 35 and 37 by a single person, the Board should have used its discretion to delegate its powers to a body consisting of atleast one more person preferably the Financial Advisor of the Company who is appointed by the Board with the prior approval of the Government. Scope for exercise of power in an arbitrary manner is much more when power is exercised by a single person.
The report of Lokayukta at page 179, paragraph 4 reads thus:-
MML is a corporation created by the Government and an instrumentality of the Government. In the exercise of its powers or discretion it if, subject to same constitutional law limitations as Government. It cannot act arbitrarily and enter into relationship with any person it likes at its sweet will but its action must be in conformity, with some rational, relevant and non-discriminatory principle. Item 35 of the powers delegated to CMD require the CMD to fix and revise sale price periodically ''depending upon market and/or other conditions". If the file indicates that the CMD had considered the above aspects i.e. market and/or other conditions, before fixing or revising the price, there is little scope to challenge the validity thereof on the ground of arbitrary exercise of power. However, in regard to item 37 no guidelines are given by the Board. It is left to the discretion of the CMD to select the purchasers and to decide about the quantity of ore or mineral to be sold to a purchaser. The CMD is required to exercise the discretion on some rational and relevant principles which could be gathered from the relevant files. Otherwise in a given case it may become arbitrary exercise of power.
The complainant has sought to fasten vicarious liability on petitioner by alleging that illegal acts committed by the Chairman & Managing Directors/Managing Directors of MML were under the stewardship of petitioner as the Chief Minister of Karnataka. The petitioner has not been indicted in the report of Lokayukta. There is not even reference to petitioner. In the report of Lokayukta under the caption "RECOMMENDATIONS BY MINISTERS AND LEGISLATORS" there is reference to some recommendees. It is not stated in the report that petitioner was one of the recommendees.
In a decision reported in Sham Sunder and Others Vs. State of Haryana, , the Supreme Court has held:-
The penal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold.
At this juncture, it will be useful to refer to section 23 of the MMDR Act, readme as hereunder:-
Offences by companies-(1) If the person committing an offence under this Act or any rules made thereunder is a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this subsection shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed with the consent or connivance of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation - For the purposes of this section.
(a) "company" means any body corporate and includes a firm or other association of individuals;
(b) "director" in relation to a firm means a partner in the firm."
In the case on hand, the complainant has sought to fasten criminal liability on the premise that petitioner was the Chief Minister of Karnataka. Therefore, allegations made against petitioner that alleged illegalities were committed by the Managing Directors of MML under the stewardship of petitioner, accepted on their face do not constitute offences alleged against petitioner. Therefore, I hold that reference u/s 156(3) Cr.P.C., for investigation into these allegations is not warranted.
The main thrust of complaint is that petitioner had de-reserved vast extent of forest/reserve forest land, without regard being had to the provisions of Forest (Conservation) Act, 1980, Forest (Conservation) Rules, 2003 and the Environment (Protection) Act, 1986, to favour a few selected individuals.
I. The learned senior counsel for petitioner would submit that de-reservation was pursuant to change in national mineral policy 1993. The order of de-reservation was pursuant to cabinet decision taken on 16.12.2002.
II. The learned senior counsel for petitioner referring to the report of Lokayukta dated 18.12.2008 would submit that in cabinet meeting held on 16.12.2002, when the approval for de-reservation was obtained the cabinet had been wrongly informed that it has not been proposed to de-reserve thick forest areas and forest proposed for de-reservation was bereft of any forest cover.
III. The learned senior counsel would submit that Lokayukta taking note of these facts has held that Officers of Industries & Commerce, the Secretary and Principal Secretary, who had dealt with this file are responsible for furnishing wrong information and suppressing correct information.
IV. The learned senior counsel would further submit that in the report of Lokayukta, it is stated that the officers and public servants, who are responsible for de-reservation of forest area will be identified and named in the next part of report.
V. The learned senior counsel would submit in the circumstances, allegations of complaint and the report of Lokayukta accepted on their face value do not constitute offences alleged against petitioner.
The II respondent/party-in-person has made the following submissions: -
I. As per the previous decisions taken by the then Minister Sri D.A.Chinnappa on 21.03.1994; the then Director of Mines & Geology on 29.12.1994; the then Minister Sri S.D.Jayaram on 20.08.1997 and decision taken in a meeting of the Government of India and Government of Karnataka on 30.11.2000, were against de-reservation. However, Sri V.Muniyappa, the then Minister of Mines & Geology, suddenly proposed to de-reserve Blocks 13, 14, 15 & 17, which are thick reserve forest area, situate in Bellary District by deliberately terming these blocks as barren lands.
II. In W.P.No.337/1995 dated 13.11.2000, the Supreme Court has ruled that "No dereservation of forests/sanctuaries/national parks till further orders". On 09.02.2004 in IA 16, the Supreme Court ruled that "We see no grounds to allow application and delete the word ''forest'' from the order of 13-11-2000."
III. The party-in-person referring to the report of Lokayukta vide page 234 would submit that Blocks 13, 14, 15 and 17 which are reserve forest area were de-reserved. As per table indicating de-reserve area, these Blocks 13, 14, 15 & 17 are located in Bellary District, which was the hot seat of illegal mining activities.
IV. The party-in-person would submit that forest land in an area of 248.64 square kilometers located in Bellary District, was notified in the annexure to notification dated 15.03.2003 and these areas are shown available for grant of mining lease under Rule 59 of the Mineral Concession Rules, 1960.
V. The party-in-person would submit that petitioner as the Chief Minister and Head of the Cabinet was aware of previous decisions. Therefore, petitioner cannot be permitted to contend that decision taken by the cabinet on 16.12.2002 was due to improper and wrong information furnished by the Secretaries of concerned departments.
VI. The party-in-person referring to the report of Lokayukta would submit that in terms of notification dated 15.03.2003, an area of 11797 square kilometers was de-reserved and notification dated 15.03.2003 was issued pursuant to cabinet decision taken on 16.12.2002, headed by the petitioner. Therefore, petitioner cannot be permitted to contend that he is not individually liable for decision taken in the cabinet meeting dated 16.12.2002.
VII. The party in person would submit that as per the report of Lokayukta in file No.CI 33 MMM 1994, only notification was found and that order of de-reservation made by the cabinet on 16.12.2002 was not found. The party-in-person would submit that order of cabinet dated 16.12.2002 has been destroyed to cover up illegal acts of dereservation.
On careful consideration of the report of Lokayukta and the events preceding cabinet meeting held on 16.12.2002, consequent notification issued on 15.03.2003, I find in the matter of de-reservation of an area of 11797 square kilometers, there has been contravention of relevant provisions of Forest (Conservation) Act. 1980 and Forest (Conservation) Rules, 2003. Whether contravention was deliberate or due to inadvertence cannot be decided at this stage. These contraventions would loom large when they are considered along with terms of reference 1 & 2 reading as hereunder: -
(i) The spurt in the international prices of steel and iron ore during last 3-4 years has made the mining and export of high quality iron ore from the mining in Bellary Tumkur and Chitradurga Districts very lucrative. With the average cost of production of iron ore at around Rs.150 per ton, and the royalties to be paid to the Government being abysmally low at Rs. 16.25 per ton for different grades there have been serious systemic distortions due to the high profit margins. This has led to allegations of large scale corruption and complaints of profiteering through illegal mining with the complicity of the authorities in all levels of Government.
(ii) The Government in its orders vide notification No. CI 16 MMM 2003 and No.CI 33. MMM 1994 both Dated: 15.03.2003, de-reserved for private, mining an area of 11620 square km in the State, meant for State exploitation/ mining by the public sector and notified the surrender of an area of 6832,48 hectares of prime iron ore bearing lands respectively, which has paved way for distribution of public assets to select private individuals,/ entities without regard to their professional or technical or business background.
The learned senior counsel appearing for petitioner would submit that collective decision taken by the cabinet to de-reserve forest area, cannot be pressed into service to fasten criminal liability on petitioner.
In a decision reported in V. Gokulkrishna Vs. M.C. Nanaiah, , a Division Bench of this court has held:-
In the instant case it is unnecessary to delve into the actual motives of the then Chief Minister and of the Additional Chief Secretary, because "if people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion" (quoted from an English decision by the Supreme. Court in S.R. Venkataraman v. Union of India and Anr.,. The Supreme Court, observed, further: "...It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that, what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another.
The Supreme Court again stated:
An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power.
To the same effect are the observations in the Express News Papers Case. At page 926 it was held:
Fraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires, It would be a case of fraud on powers.
Therefore, question whether decision was a collective or individual decision; whether criminal liability can be attached to petitioner on such decision is a matter of investigation, more particularly, when the report of Lokayukta states that decision taken by cabinet in the meeting held on 16.12.2002 was missing and what was found in the file was the notification dated 15.03.2003. Even the notification dated 15.03.2003 is not in conformity with the Forest (Conservation) Rules, 2003, which casts a mandatory duty on the State Government to seek approval in terms of Rule 6 of the Forest (Conservation) Rules, 2003. In the circumstances, allegations of complaint and the report of Lokayukta relating to these aspects cannot be termed as inherently improbable or absurd.
The learned senior counsel for petitioner would submit that subjecting the petitioner to investigation on a complaint, which is the reproduction of Lokayukta report, wherein the petitioner has not been indicted would be usurping powers of competent authority under the Lokayukta Act.
In the report of Lokayukta dated 18.12.2008 at paragraph 12 of page 12, the Lokayukta has stated:-
12....The reference has also asked me to initiate suitable action both civil and criminal but that is legally not possible because this is a reference u/s 7(2-A) of Lokayukta Act and not an investigation or inquiry initiated by the Lokayukta...
This report was received by the competent authority on 18.12.2008. The competent authority, which has statutory duty to take time bound action in terms of section 12(4) of the Lokayukta Act had not taken any action nor it was intimated to Lokayukta as to the fate of report, within three months from the date of receipt of Lokayukta report. The petitioner has no case that competent authority had declined to act upon the report of Lokayukta. Therefore, submission of learned senior counsel for petitioner cannot be accepted.
In view of the above discussion. I hold the impugned reference u/s 156(3) Cr.P.C., for investigation of offences alleged against petitioner in the matter of de-reservation of forest does not call for interference. Point No. 1 is answered accordingly.
Point No 2:-
The learned senior counsel for petitioner has submitted that in view of the provisions contained under sections 12 & 14 of the Karnataka Lokayukta Act, 1984, there is legal bar to initiate complaint and investigation of first information report registered consequent to reference u/s 156(3) Cr.P.C. The learned senior counsel for petitioner has submitted that Karnataka Lokayukta Act, 1984 being a special act would over ride the provisions of Prevention of Corruption Act, 1988. The learned senior counsel for petitioner would submit that it is for the competent authority to act or not to act upon the report submitted by Lokayukta. The report submitted by Lokayukta is still pending consideration before the competent authority. Therefore, the instant complaint, wherein facts stated in the report of Lokayukta are reiterated, is not maintainable. The complainant has no locus standi to initiate the complaint.
The learned senior counsel for petitioner, relying on a decision of the Supreme Court, reported in Rohtas Vs. State of Haryana and Another, would submit that provisions of Criminal Procedure Code are not applicable to Karnataka Lokayukta Act, as the latter being a special law would exclude application of provisions of Criminal Procedure Code. 1973.
In the aforestated decision the Supreme Court has held:-
6.... It is not disputed that the Haryana Act was in force when the Code of 1973 was passed and, therefore, the Haryana Act far from being inconsistent with Section 5 of the Code of 1973 appears to be fully protected by the provisions of Section 5 of the Code of 1973 as indicated above.
On careful consideration of the above decision, I find that the Haryana Children Act, 1974 was in force when the code of 1973 was passed and the said Act provides procedure for trial of any offence under the Act committed by a child.
We do not find such exclusive provision or the provisions regulating prosecution under the Lokayukta Act.
The II-respondent party-in-person, relying on the judgment of the Supreme Court, reported in R.S. Nayak Vs. A.R. Antulay, would submit that there is no bar to initiate complaint under the provisions of Prevention of Corruption Act, 1988.
The II-respondent/party-in-person relying on the judgment of this court in W.P.No.25574/2009 dated 08.10.2009 would submit that there is no bar to initiate complaint/prosecution into allegations made in the complaint, based upon the report of Lokayukta, which is neither accepted nor rejected by the competent authority.
In a decision reported in V.L. Shankar and Another Vs. State of Karnataka and Another, , this court considering repugnancy between section 14 of the Karnataka Lokayukta Act, 1984 and section 19 of the Prevention of Corruption Act, 1988 has held:-
A reference to the relevant text of the two provisions is necessary to examine the aspect of ''repugnancy'' and its extent.
Section 14 of the Karnataka Lokayukta Act, 1984:
Initiation of prosecution - If after investigation into any complaint the Lokayukta or an Upa-Lokayukta is satisfied that the public servant has committed any criminal offence in a Court of law for such offence, then, he may pass an order to that effect and initiate prosecution of the public servant concerned and if prior sanction of any authority is required for such prosecution, then, notwithstanding anything contained in any law, such sanction shall be deemed to have been granted by the appropriate authority on the date of such order.
Section 19 of the P.C. Act, 1988:
Previous sanction necessary for prosecution:- (1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction.-
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government:
(c) In the case of any other person, of the authority competent to remove him from his office.
(2)..............
. A plain reading of the above would show that Section 14 of the Lokayukta Act is repugnant to Section 19 of the P.C. Act, 1988 to the extent it confers power to grant sanction for prosecution for the offences for which previous sanction is required u/s 19 of the P.C. Act, 1988. The repugnancy arose in the year 1988 when parliament enacted the P.C. Act, 1988. The effect of this repugnancy is that Section 14 does net confer power on the Lokayukta or Upa-Lokayukta to order prosecution against a public servant for offences enumerated in Section 19 of the P.C. Act, 1988 without obtaining the previous sanction of the Government or the authority concerned, wherever such previous sanction is required. In the present case, previous sanction of the State Government was required u/s 19 of the P.C. Act, 1938 for prosecution of the petitioners as they were employees of the State Government. Hence, ordering prosecution of the petitioners without the previous sanction of the State Government cannot be sustained in law.
It is relevant to State that the President''s assent to a State Law under Article 254(2) does not confer irrevocable immunity to the State law from the operation of the rule of repugnancy. The fact that the President''s assent has been obtained for a State law under Clause (2) of Article 254 will not make it immune from attack for repugnancy to a subsequent parliamentary enactment. The immunity will be available only till parliament makes any law with respect to the same matter making a provision conflicting with the State law. In view of the proviso to Clause 2 of Article 254, parliament can enact any law repugnant to the earlier State law which had received the assent of the President. When parliament enacts such a law, the State law would be void to the extent of repugnancy.
In a decision reported in T. Barai Vs. Henry Ah Hoe and Another, , the Supreme Court dealing with article 254 clauses (1) & (2) has held:-
There is no doubt or difficulty as to the law applicable Art. 254 of the Constitution makes provision firstly, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict. Art. 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a Concurrent subject is ''repugnant'' to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in clause (1), clause (2) engrafts an exception, viz., that ii the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a Concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a Concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in their applicability to that State only. The predominance of the State law may however be taken away if Parliament legislates under the Proviso to clause (2). The Proviso to Art. 254(2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the President''s assent Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the ''same matter''. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same Held and the two cannot possibly stand together e.g., where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law -under Art. 254(1). That being so, when Parliament stepped in and enacted the Central Amendment Act, it being a later law made by Parliament "with respect to the same matter", the West Bengal Amendment Act stood impliedly repealed.
At this juncture, it is relevant to state that Karnataka Lokayukta Act, 1984, preamble of which reads thus:-
"Whereas, it is expedient to make provision for the appointment and functions of certain authorities for making enquiries into administrative action relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution taken by or on behalf of the Government of Karnataka or certain public authorities in the State of Karnataka (including any omission or commission in connection with or arising out of such action) in certain cases and for matters connected therewith or ancillary thereto" received the assent of the President on 16.01.1985 and brought, into force with effect from 15.01.1986.
The Prevention of Corruption Act, 1988, preamble of which reads thus:
An Act to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith" was brought into force with effect from 09.09.1988.
We could see from the provisions of the Karnataka Lokayukta Act, 1984 and the provisions of Prevention of Corruption Act, 1988. there is no direct conflict between two Acts and both Acts do not hold the same field. The petitioner cannot rely upon clause (2) of article 254 of the Constitution of India to contend that provisions of the Karnataka Lokayukta Act, 1984 (Karnataka Act No.4/1985) would override the provisions of Prevention of Corruption Act, 1988 (Central Act No.49/1988). It is seen from the provisions of Prevention of Conniption Act. 1988 that the act does not define the "complainant" or locus standi of the complainant to initiate complaint for prosecution in relation to offences under the Prevention of Corruption Act, 1988.
A Division Bench of this court in W.P.No.25574/2009 dated 08.10.2009. dealing with maintainability of complaint based upon the report of Lokayukta and initiation of complaint/prosecution when the report of Lokayukta is yet to be accepted by the Government has held:-
6.2) Of course, it is seriously contended by Mr.Vijayashankar, learned senior counsel appearing for the petitioner that it would be very unsafe for the respondents or for the jurisdictional Magistrate much less to this Court to act upon and/or to initiate, to investigate, to prosecute or to pass any orders based upon the Lokayukta Report which is yet to be accepted by the Government; or based upon, the Satellite maps enclosed along with the Lokayukta report and relied upon by the respondents herein identifying the impugned areas as encroached areas by the petitioner, as such report or the maps cannot be a conclusive evidence against the petitioner as they were not parties to the Lokayukta proceedings nor they were given any notice or opportunity to file their objections to the Lokayukta report or the GPS sketches, while registering the impugned FIR dated 3.2.2009 and passing the order of seizure dated 3.2.2009.
6.3) We are, but, unable to appreciate that the Lokayukta report cannot be a basis for initiating any lawful action against those who are involved in unlawful acts in an illegal manner. One should not forget that the office of the Lokayukta is held by a former Judge of the Apex Court. It is difficult to assume or presume that the said high authority would give a report without any material whatsoever. Therefore-, we are unable to digest the contention that the Lokayukta report cannot be a basis for even to initiate an action against an illegal act.
6.6) When the Lokayukta finds fault against the executives for their failure to implement such laws to protect the environment and ecology, the petitioner projects the grievance against the executives for acting upon the Lokayukta report. But, under such circumstances, in our considered opinion, the executives should have a free hand to proceed with investigation further into the matter to do their duty conferred by law and by people, particularly when faced with money power and man-power. Otherwise, the respect of law and people would be lost.
In a decision reported in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, , the Supreme Court has held:-
It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to court. Even for the most serious offence of murder, it was not disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statue creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision Numerous statutory provisions, can be referred to in support of this legal position such as (i) Sec. 187 A of Sea Customs Act, 1878 (ii) See. 97 of Gold Control Act, 1968 (iii) Sec. 6 of Import and Export Control Act, 1947 (iv) Sec. 271 and Sec. 279 of the Income Tax Act,. 1961 (v) Sec. 61 of the Foreign Exchange Regulation Act, 1973,(vi) Sec. 621 of the Companies Act, 1956 and (vii) Sec. 77 of the Electricity Supply Act. This list is only illustrative and not exhaustive. While Sec. 190 of the Code of Criminal Procedure permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Secs. 195 to 199 of the Cr. P. C. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force (See Sec. 2(n), Cr. P. C.) is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendatta or vengeance. If such is the public policy underlying penal statutes who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straight jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception.
In the discussion made supra, I have stated that in order to set criminal law into motion for an offence punishable u/s 13(1)(d) r/w section 13(2) of the Prevention of Corruption Act, 1988, there is no provision under the Prevention of Corruption Act, 1988, defining locus-standi of the complainant/first informant.
Under section 4(2) Cr.P.C., all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
After going through the provisions of the Karnataka Lokayukta Act, 1984. I find that the Kamataka Lokayukta Act, 1984 was not enacted to try the offences under special law. There is no provision in the Karnataka Lokayukta Act. 1984, which would exclude application of the provisions of Criminal Procedure Code.
Section 14 of the Karnataka Lokayukta Act, 1984 which relates to initiation of prosecution, reads thus:-
Initiation of Prosecution - If after investigation into any complaint the Lokayukta or an Upalokayukta is satisfied that the public servant has committed any criminal offence and should be prosecuted in a court of law for such offence, then, he may pass an order to that effect and initiate prosecution of the public servant concerned and if prior sanction of any authority is required for such prosecution, then, notwithstanding anything contained in any law, such sanction shall be deemed to have been granted by the appropriate authority on the date of such order.
The word "complaint" in section 14 is defined under rule 4 of the Kamataka Lokayukta Rules, 1985 as under:-
Complaint- (1) Every complaint shall be made in Form I, signed by the complainant and shall be supported by his affidavit in Form II duly sworn to before any Judicial Magistrate First Class, Notary Public, Oath Commissioner, Judicial Officers working on deputation in the Karnataka Lokayukta or any Gazetted Officer duly authorised to administer oaths.
(2) The complaint may be presented in person or sent by registered post to the Registrar. Such complaint shall be acknowledged by the Registrar specifying the name and designation of the public servant against whom such complaint is made.
The word "Complainant" is defined under rule 2(b) of the Karnataka Lokayukta Rules, 1985 as hereunder:-
2(b). Complainant" means a person who makes a complaint u/s 9 of the Act.
Section 20 of the Karnataka Lokayukta Act, 1984, which provides for prosecution for false complaint, reads thus:-
Prosecution for false complaint-(1)
Notwithstanding anything contained in this Act, whoever makes any false and frivolous or vexatious complaint under this Act shall, on conviction be punished with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees.
(2) No Court, except a Court of a Metropolitan Magistrate or a Judicial Magistrate First Class shall take cognizance of an offence under sub section (1).
(2-A) No such Court shall take cognizance of an offence under sub-section (1) except on a complaint made by a person against whom false, frivolous or vexatious complaint was made after obtaining the previous sanction of the Lokayukta or Upalokayukta, as the case may be.
13) The prosecution in relation to an offence under sub-section (1) shall be conducted by the Public Prosecutor and all expenses connected with such prosecution shall be borne by the State Government.
u/s 4 of the Prevention of Corruption Act, 1988, offences specified in section 3(1) of the Prevention of Corruption Act, 1988 shall be tried by a Special Judge appointed u/s 3(1) of the Prevention of Corruption Act, 1988.
Section 5 of the Prevention of Corruption Act, 1988 provides for procedure and powers of Special Judge.
Section 5 of the Prevent ion of Corruption Act, 1988 reads thus:-
Procedure and powers of Special Judge. -
(1) A special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall fellow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by Magistrates.
(2) A Special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall, for the purposes of sub-sections (1) to (5) of Section 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be deemed to have been tendered u/s 307 of that Code.
(3) Save as provided in sub-section (1) or subsection (2), the provisions of the Code of Criminal Procedure. 1973 (2 of 1974). shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge; and for the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor.
(4) In particular and without prejudice to the generality of the provisions contained in subsection (3), the provisions of Sections 326 and 475 of the Code of Criminal Procedure. 1973 (2 of 1974), shall, so far as may be, apply to the proceedings before a Special Judge and for the purposes of the said provisions, a Special Judge shall be deemed to be a Magistrate.
(5) A Special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted.
(6) A Special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ordinance 38 of 1944).
Section 19 of the Prevention of Corruption Act, 1988 states that no court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction.
Under section 22 of the Prevention of Corruption Act, 1988, the previsions of Cr.P.C., 1973 are made applicable, subject to certain modifications.
Section 22 of the Prevention of Corruption Act, 1988 reads thus:-
The Code of Criminal Procedure, 1973 to apply subject to certain modifications. - The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall in their application to any proceeding in relation to an offence punishable under this Act have effect as if,
(a) in sub-section (1) of Section 243, for the words "The accused shall then be called upon." the words "The accused shall then be required to give in writing at once or within such time as the court may allow, a list of the persons (if any) whom he proposes to examine as his witnesses and of the documents (if any) on which he proposes to rely and he shall then be called upon" had been substituted;
(b) In sub-section (2) of Section 309, after the third proviso, the following proviso had been inserted, namely: -
"Provided also that the proceeding shall not be adjourned or postponed merely on the ground that ah application u/s 397 has been made by a party to the proceeding.";
(c) After sub section (2) of Section 317, the following sub-section had been inserted, namely:-
"(3) Notwithstanding anything contained in subsection (1) or sub-section (2), the Judge may, if he thinks fit and for reasons to be recorded by him, proceed with inquiry or trial in the absence of the accused or his pleader and record the evidence of any witness subject to the ''right of the accused to recall the witness for cross-examination.";
(d) In sub-section (1) of Section 397, before the Explanation, the following proviso had been inserted, namely: -
"Provided that where the powers under this section are exercised by a court or an application made by a party to such proceedings, the court shall not ordinarily call for the record of the proceedings :-
(a) Without giving the other party an opportunity of showing cause why the record should not be called for: or.
(b) If it is satisfied that an examination of the record of the proceedings may be made from the certified copies.
Under the provisions of Prevention of Corruption Act, 1988, the word "complainant" has not been defined. Even there is no definition of "first information report" and "first informant". u/s 17 of the Prevention of Corruption Act, 1988, certain police officers in the case of Delhi Special Police Establishment, in metropolitan areas and elsewhere are notified and they have been empowered to investigate into the matter, without the order of Magistrate and they are empowered to make any arrest, without a warrant or without the order of a Metropolitan Magistrate or a Magistrate of the first class. Thus, offences are made cognizable.
The learned senior counsel for petitioner has relied on the provisions of sections 12 & 14 of the Karnataka Lokayukta Act, 1984 to contend that any person indicted in the report of Lokayukta should be prosecuted in the manner provided under the Karnataka Lokayukta act, 1984.
The learned senior counsel for petitioner would submit, on the basis of reference made u/s 7(2-A) of the Karnataka Lokayukta Act, 1984, Lokayukta has submitted a report u/s 12(3) of the Karnataka Lokayukta Act, 1984. It is for the "competent authority" to act upon the report of Lokayukta u/s 2(4) of the Karnataka Lokayukta Act, 1984. A citizen like the complainant cannot initiate criminal prosecution when the report of Lokayukta is pending consideration before the State Government and the competent authority.
Section 9 of the Karnataka Lokayukta Act, 1984, relates to complaints and investigations, the procedure for lodging the complaint and the manner of preliminary enquiry and investigation into such complaints.
At this juncture, it is necessary to state that the provisions relating to investigation u/s 9 relates to investigation into a complaint as defined under rule 4 of the Karnataka Lokayukta Rules, 1985. Section 9 of the Karnataka Lokayukta Act, 1984 provides for investigation into any complaint involving any grievance or any allegation as defined under Rule 4 of Karnataka Lokayukta Rules, 1985.
u/s 2(8) of the Karnataka Lokayukta Act, 1984, the word "grievance" has been defined as hereunder:-
2(8). "Grievance" means a claim by a person that he sustained injustice or undue hardship in consequence of mal-administration.
Under section 2(2) of the Karnataka Lokayukta Act, 1984, the word "Allegation" has been defined as hereunder:-
(2) "Allegation" in relation to a public servant includes any affirmation that such public servant-
(a) has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person;
(b) was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives;
(c) is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant.
OR
(d) has failed to act in accordance with the norms of integrity and conduct which ought to be followed by public servants of the class to which he belongs:
In the case on hand, reference u/s 7(2-A) of the Karnataka Lokayukta Act, 1984 cannot be considered as a grievance or allegations made by the complainant and reference cannot be termed as a complaint as defined under rule 4 of the Karnataka Lokayukta Rules, 1985. ''The State. Government cannot be termed as a complainant as defined under rule 2(b) of the Karnataka Lokayukta Rules, 1985.
Section 7(2-A) of the Karnataka Lokayukta Act, 1984 reads thus:-
7(2-A) Notwithstanding anything contained in sub-sections (1) and (2), the Lokayukta or an Upalokayukta may investigate any action taken by or with the general or specific approval of a public servant, if it is referred to him by the State Government.
In the Lokayukta report dated 18.12.2008, at page 278, the Lokayukta has stated:-
Therefore u/s 12(3) of the Lokayukta Act, I recommend initiation of disciplinary proceedings under the service rules applicable to them and so also appropriate proceedings shall be initiated against the said officers for recovery of the loss caused by them as detailed above.
Under section 12(4) of the Karnataka Lokayukta Act, the competent authority has statutory duty to examine the report forwarded to it under sub-section(3) and within three months of the date of receipt of report, intimate or cause to be intimated to the Lokayukta or the Upa-lokayukta the action taken or proposed to be taken on the basis of the report.
In the case on hand, the report of Lokayukta was submitted on 27.07.2011. The competent authority as defined under the Karnataka Lokayukta Act, 1984 has not taken any action nor intimated the Lokayukta about the fate of report submitted by the Lokayukta.
The submission of learned senior counsel for petitioner that the instant complaint alleging offences against petitioner under the provisions of the Prevention of Corruption Act, 1988 and other offences under the Indian Penal Code and other laws cannot be initiated by the complainant, particularly when the complainant has reiterated the facts contained in the report of Lokayukta, which is yet to be accepted by the Government, has no merit.
Therefore, I am of the considered opinion, there is no provision under the Karnataka Lokayukta Act, 1984, which would exclude the application of Criminal Procedure Code. u/s 22 of the Prevention of Corruption Act, 1988", the provisions of Criminal Procedure Code, 1973 are made applicable to any proceedings in relation to offences under the Prevention of Corruption Act, but for certain modifications stated therein and such modifications are with reference to sections 243, 309, 317 and 397 Cr.P.C.
The learned senior counsel appearing for petitioner, referring to the provisions of section 13(1)(d)(ii) of the Prevention of Corruption Act would submit that allegations made in the complaint that petitioner amassed wealth in the names of his children, in-laws and in the names of his erstwhile cabinet colleagues are vague. Even if averments of complaint are accepted on their face, value they would not constitute an offence punishable u/s 13(1)(d)(ii) r/w section 13(2) of the Prevention of Corruption Act.
In a petition filed u/s 482 Cr.P.C., this court cannot resolve factual controversies. At this stage, this court has to accept the averments of complaint on their face value.
In a decision reported in (1999) 3 SCC 250 (in the case of Rajesh Bajaj Vs. State NCT of Delhi & Others), the Supreme Court has held:-
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 (supra) 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: (SCC p.379, para 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.
In the case on hand, the complaint allegations are reiterations of relevant portions of the report of Lokayukta. Therefore it is not possible to hold that the allegations. which are reiterations of the relevant portions of the report of Lokayukta do not constitute offences alleged against petitioner.
At this juncture, it is necessary to state that "any other person" occurring u/s 13(i)(d)(ii) of the Prevention of Corruption Act, 1988 would also include immediate beneficiary. Therefore, submission of learned counsel for petitioner cannot be accepted.
The learned senior counsel for petitioner, relying on the judgment of the Supreme Court, reported in R. Kalyani Vs. Janak C. Mehta and Others, would submit that one of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.
This submission cannot be accepted for the following reasons:-
The complaint is the reproduction of relevant parts of the report of Lokayukta. Therefore, it is not possible to hold that petitioner is being subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.
In a decision reported in 1992 SCC (Cri) 426 (in the case of State of Haryana & Others Vs. Bhajan Lal and others) the Supreme Court has held :-
It may be true, as repeatedly pointed out by Mr.Parasaran, that in a given situation, false and vexatious charges of corruption and venality may be maliciously attributed against any person holding a high office and enjoying a respectable status thereby sullying his character, injuring his reputation and exposing him to social ridicule with a view to spite him on account of some personal rancour, predilections and past prejudices of the complainant. In such a piquant situation, the question is what would be the remedy that would redress the grievance of the verify affected party? The answer would be that the person who dishonestly makes such false allegations is liable to be proceeded against under the relevant provisions of the Indian Penal Code - namely u/s 182 or 211 or 500 besides becoming liable to be sued for damages.
Therefore, there is no legal bar to initiate complaint/prosecution on the basis of the report of Lokayukta submitted to the competent authority u/s 12(3) of the Karnataka Lokayukta Act, 1984. Point No.2 is answered accordingly.
In view of the above discussion, 1 hold the allegations made against petitioner in relation to alleged illegal activities committed in the management of MML do not constitute any cognizable offences against petitioner and they do not call for investigation u/s 156(3) Cr.P.C.
The averments of complaint made against petitioner in the matter of de-reservation of forests accepted on their face value would constitute offences against the petitioner and they warrant investigation u/s 156(3) Cr.P.C.
In the result, I pass the following:-
ORDER
I. The petition is accepted in part. The impugned order of reference is modified. The complaint initiated in PCR No.27/2011 and the reference u/s 156(3) for investigation of allegations made against petitioner in relation to illegal acts committed in the management of MML are quashed.
II. The reference u/s 156(3) Cr.P.C., for investigation of offences alleged to have been committed by petitioner in the matter of de-reservation of forest, pursuant to cabinet decision taken on 16.12.2002 is confirmed.