Abhay Kumar Vs Sujit and Others

@JUDGMENTTAG-ORDER

Dr. K. Bhakthavatsala, J.@mdashThe petitioner, who is accused in PCR No. 18/2012 on the file of Special Judge and IV Addl. Sessions Judge, at Belgaum, filed a Writ Petition on 22.1.2013, under Articles 226 & 227 of the Constitution of India r/w. Section 482 of the Code of Criminal Procedure, for quashing Private Complaint at Annexure-A; FIR bearing No. 14/2012 on the file of Lokayuktha Police, at Belgaum, and the order dated 19.11.2012 and 20.11.2012, at Annexure-B and C.

2. On 22.2.2013, Sri M.B. Gundawade, panel Advocate for Lokayuktha Police/respondent No. 2, was directed to take notice. On service of notice, respondent No. 1/complainant entered appearance through Sri Ram P. Ghorpade and Sri R.G. Patil.

3. Learned Single Judge Mr. Justice Anand Byrareddy, after hearing arguments of the learned Counsels for the parties and taking note of the factum that the accused is no more a public servant (MLA) and referring to his own decision rendered in MURUGESH R NIRANI Vs. A ALAM PASHA (Crl. P. No. 1598/2013 DD 21.5.2013) and by Mr. Justice K.N. Keshavanarayana, in Sri. Babu Rao Chinchanasur Vs. The State and Sri. M. Shanthappa, formulated a question for reference namely:

Whether liberty shall be given to the complainant to file another complaint on the same allegations, as the private complaint filed against the accused/Public servant is liable to be quashed for want of sanction?

4. The Registry placed the matter before the Hon''ble Chief Justice for orders. Accordingly, the Hon''ble Chief Justice ordered to place the matter before the Division Bench. That is how the matter is before us to answer the reference.

5. We have heard arguments of Sri K.M. Nataraj, learned Senior Counsel, appearing for the petitioner along with Sri Raviraj C Patil; Sri Ram P Ghorpade for respondent No. 1 and Sri Mallikarjunaswamy B Hiremath for respondent No. 2/Lokayuktha police.

6. Sri K.M. Nataraj, learned Senior Counsel appearing for the petitioner, submitted that as on the date of filing the complaint against the petitioner/accused, who was a public servant but complaint filed against him is not accompanied with the sanction to prosecute and therefore the order of the Special Judge from the stage of registering the complaint; referring the matter for investigation and registering FIR against the accused are not sustainable in law and they are ab initio void, though the accused ceases to be a public servant and question of giving liberty to the complainant to file another complaint does not arise and the point for reference may be accordingly answered. He has cited the following decisions:

(i) S.A. Venkataraman Vs. The State,

(ii) Abhay Singh Chautala Vs. C.B.I.,

(iii) State of Karnataka through CBI Vs. C. Nagarajaswamy,

(iv) State of Goa Vs. Babu Thomas,

(v) MOHAMMED SALEEM Vs. POLICE INSPECTOR, KARNATAKA LOKAYUKTHA AND ANOTHER (WRIT PETITION No. 3368/2007);

(vi) N. Bhargavan Pillai (Dead) by Lrs. and Another Vs. State of Kerala,

(vii) R RAVI Vs. NAGALAXMI BAI (WP No. 50423/2012 c/w. W.P. No. 6593/2013);

(viii) SRI B.V. ACHARYA Vs. SRI N VENKATESHAIAH AND ANOTHER (WP NO. 14047/2012);

(ix) B.S. YEDDYURAPPA Vs. STATE OF KARNATAKA (Criminal Petition No. 4497/2013);

(x) Dr. Subramanian Swamy Vs. Dr. Manmohan Singh and Another,

(xi) ANIL KUMAR AND OTHERS Vs. M.K. AIYAPPA AND ANOTHER (CRIMINAL APPEAL NOS. 1590-1591/2013);

(xii) Mrs. Sarah Mathew Vs. The Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherian and Others, and

(xiii) State of Orissa through Kumar Raghvendra Singh and Others Vs. Ganesh Chandra Jew,

7. On the other hand, learned Counsel for respondent No. 1/complainant submitted that since the petitioner/accused is no more a public servant, the sanction as contemplated under Section 19 of the Prevention of Corruption Act, 1988 (in short, ''the PC Act'') is not required. He has cited the following decisions:

(i) Dr. Subramanian Swamy Vs. Dr. Manmohan Singh and Another, and

(ii) WRIT PETITION (CIVIL) NO. 38/1997 (DD 6.5.2014) (DR. SUBRAMANIAN SWAMY Vs. DIRECTOR, CENTRAL BUREAU OF INVESTIGATION & ANR.).

8. Learned Counsel appearing for respondent No. 2/Lokayukta Police submitted that the Special Judge, on receiving the complaint, applied his mind and taken cognizance of the offence within the meaning of Section 190(1)(a) of Cr.P.C. and ordered for investigation by the S.P. of Lokayukta under Section 156(3) of Cr.P.C. and also issued search warrants for the purpose of investigation and since the accused is no more a public servant, an order of sanction to prosecute the accused for the offence punishable under the PC Act, as required under Section 19 of the PC Act is not required. He relies upon the following decisions:

i) Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others,

ii) R.S. Nayak Vs. A.R. Antulay,

iii) Habibulla Khan Vs. State of Orissa and another,

iv) Parkash Singh Badal and Another Vs. State of Punjab and Others,

v) Dr. Subramanian Swamy Vs. Dr. Manmohan Singh and Another,

vi) State of Bihar and Others Vs. Rajmangal Ram,

vii) CRIMINAL PETITION No. 4144/2013 (S. PRAKASH AND OTHERS v/s. STATE AND ANOTHER).

9. We have perused the records in PCR No. 18/2012 on the file of Special Judge/IV Addl. Sessions Judge, Belgaum.

10. On 20.11.2012, the complainant filed a complaint under Section 200 of Cr.P.C., pleading that the accused who is BJP-MLA for Bagewadi Assembly Constituency in Belgaum from 31.3.2004 to 30.4.2008 has amassed wealth by corrupt and illegal means disproportionate to his known source of income and thus committed a criminal misconduct under Section 13(1)(e) of the PC Act, which is punishable under Section 13(2) of the P.C. Act. The complaint was presented through his counsel. Learned Special Judge received the same, took cognizance and registered it as Private Complaint and under Section 156(3) of Cr.P.C., referred the matter, to SP, Lokayuktha, Belgaum, for investigation and report by 28.12.2012. The Belgaum Lokayuktha Police registered the complaint in Crime No. 14/2012 and submitted FIR to Court. This is challenged by the accused in the Writ Petition under Articles 226 & 227 of the Constitution of India and under Section 482 of Cr.P.C.

11. Now, we refer to the decision rendered in Sri Babu Rao Chinchanasur, in the latter said case, the allegation was that the petitioner/accused, who was a Member of Legislative Assembly of Karnataka from 1999 to 2004 and a Minister of State for Small Savings, Insurance and Muzarai, amassed huge assets disproportionate to his known sources of income. A private complaint filed against the accused was referred to the Lokayuktha for investigation, under Section 156(3) of Cr.P.C. Lokayuktha Police registered the case in Crime No. 94/2012, for the offence punishable under Section 13(1)(e) r/w. Section 13(2) of the P.C. Act. It was challenged by the said accused before this Court contending that the sanction under Section 19 of the P.C. Act, is a condition precedent to entertain a private complaint, but no such sanction was accorded by the competent authority and hence the Special Judge had no jurisdiction to entertain the complaint and referring the matter to the Police for investigation. Learned Single Judge (Mr. Justice K.N. Keshavanarayana) formulated the following points for consideration.

(i) Whether a private complaint alleging the offence punishable under Section 13(1)(e) of the P.C. Act, by a private individual is maintainable?

(ii) Whether even at the stage of referring the complaint to the police under Section 156(3) of Cr.P.C. for investigation, the Special Judge is under an obligation to apply his mind to the allegations made in the complaint?

(iii) Whether in the light of the mandatory provisions contained in the 2nd proviso to Section 17 of the P.C. Act, the Special Judge has jurisdiction to direct investigation in exercise of the power under Section 156(3) of Cr.P.C., in respect of the allegations relating to the offence punishable under Section 13(1)(e) of the P.C. Act?

(iv) Whether the sanction for prosecution as required by Section 19 of the P.C. Act is a condition precedent to entertain a private complaint alleging the offences under the P.C. Act?

12. Learned Single Judge answered the point No. 1, 2 and 4 in the affirmative holding-

(i) that the private complaint filed against the accused alleging that he has committed an offence punishable under Section 13(1)(e) of the P.C. Act, is maintainable by a private individual;

(ii) that even at the stage of referring the complaint to the Police under Section 156(3) of Cr.P.C., for investigation, the Special Judge is under an obligation to apply his mind to the allegations made in the complaint; and

(iii) that the Sanction for prosecution as required by Section 19(1) of the PC Act is a condition precedent to entertain a private complaint.

Learned Single Judge allowed the Criminal Petition and the order dated 28.11.2012 made in PCR No. 44/2012 on the file of Special Judge, referring the complaint to the Superintendent of Police, Karnataka Lokayukta for investigation and report and all further proceedings undertaken by Lokayukta Police were quashed and directed the Special Judge to consider the matter afresh in the light of the law laid down in the decisions referred to in the Order. But in an identical case in the case of Murugesh R Nirani Vs. A. Alam Pasha (Criminal Petition No. 1598/2013), Mr. Justice Anand Byrareddy, held that though the complaint filed against the accused under Section 200 of Cr.P.C. was not accompanied with the Sanction to prosecute the accused for the offence punishable under the PC Act, but subsequent to filing the Criminal Petition, the accused ceased to be a public servant, the question of obtaining Sanction was no longer relevant and dismissed the Criminal Petition. In view of the above conflicting views, learned Single Judge (Mr. Justice Anand Byra Reddy) has made the Reference.

13. The Policy underlying under Section 19 of the Prevention of Corruption Act, 1988 is that there should not be unnecessary harassment of public servant. Thus, valid Sanction is a prerequisite for taking cognizance of the offence punishable under the PC Act, as against a public servant. It is well settled that a trial, without Sanction renders the proceedings ab initio void, but the terminus a quo for a valid Sanction is the time when the Court is called upon to take cognizance of the offence. If, therefore, when the offence is alleged to have been committed, the accused was a public servant, but by the time Court is called upon to take cognizance of the offence committed by him as Public Servant, he has ceased to be a public servant, no sanction under Section 19 of PC Act would be necessary, for taking cognizance of the offence against him.

14. In R.S. Nayak Vs. A.R. Antulay, , Constitutional Bench of the Apex Court has held that since the accused ceased to be a public servant at the time when the Court is called upon to take cognizance of the offence alleged to have been committed by him as Public Servant, obtaining sanction is not required. The ratio laid down by the apex court is applicable on all the fours to the case on hand. The petitioner/accused who was a MLA as on the date of filing the Writ Petition, ceases to be a MLA. In other words, in the General Assembly Election held for Belgaum South Constituency on 5.5.2014 the petitioner/accused was defeated. The decision rendered in Anthulay case was on the basis of interpretation of Section 6(1)(c) of the Prevention of Corruption Act, 1947, which is pari materia to Section 19(1)(c) of PC Act. The decision made in Anthulay case was followed in Abhay Singh Chautala Vs. C.B.I., and other subsequent cases. Therefore, the point for reference is answered as under:

Since the petitioner/accused is no more a public servant, the contention of the accused that the complaint filed against the accused without obtaining valid sanction as required under Section 19 of PC Act, falls to the ground. In other words, the question of obtaining sanction is no longer relevant.

The Registry is directed to place the records in the Writ petition before the Bench having roaster for disposal in accordance with law.