K.G. Bopaiah Speaker. Karnataka Legislative Assembly Bangalore Vs Deputy Superintendent of Police Lokayukta Madikeri, Kodagu District. and Smt. Kechamada Saritha Poonacha

@JUDGMENTTAG-ORDER

Hon''ble Mr.Justice N. Ananda

1. The petitioners in these petitions have been arrayed as accused 1 to 4 (hereinafter referred to as accused 1 to 4) respectively in P.C.No. 1/2011, initiated by II-respondent. alleging offences punishable u/s 13(1)(d) of the Prevention of Corruption Art, 1988, sections 409, 420 & 120B IPC and section 3A of the Forest (Conservation) Act, 1980. The learned Special Judge on receipt of complaint referred the complaint u/s 156(3) Cr.P.C., to I respondent/Deputy Superintendent of Lokayukta Police, Madikeri and it was registered in Crime No. 8/2011 on 08.12.2011. These petitions are filed to quash entire proceedings in P.C.No. 1/2011 and first information registered in Crime No. 8/2011 by I-respondent.

2. I have heard Sri S.Vijay Shankar, learned senior counsel for accused No. 1, Sri Murthy Dayanand Naik. learned counsel for accused 2 to 4. Smt.T.M.Gayathri, learned counsel for I-respondent and Sri A.K.Subbaiah, learned counsel for II-respondent.

3. The brief facts as averred in the complaint, necessary for decision of these petitions are as follows:-

The Government of Karnataka vide its order No. SKE:229:PVY:2006 dated 27.03.2007 released an amount of Rs. 120 lakhs as grant under article 275(1) of the Constitution of India for the period 2006-07. This amount was earmarked for carrying out renovation work of a tank called "Doddareshme Haddlu" situate in Reshme Haddlu tribal colony of Virajpet (Tq.), which happens to be a reserve forest. Originally the work was entrusted to the Engineering Division of Kodagu Zilla Panchayat and work could not be carried out due to technical and financial feasibility. Accused 1 to 4 hatched a plan to get the work transferred to "Kodagu District Nirmithi Kendra", Kushalnagar, of which accused No. 4 was the Project Coordinator. Accused No. 1 being the member of Legislative Assembly of Veerajpet constituency, accused No. 2 being the member of Kodagu Zilla Panchayat, accused No. 3 being the Chief Executive Officer of Kodagu Zilla Panchayat and accused No. 4 being the Project Coordinator of Kodagu District Nirmithi Kendra, Kushalnagar, were successful in gelling the work transferred to Kodagu District Nirmithi Kendra and siphoned the funds without carrying out any work. The Kodagu District Nirmithi Kendra is a defunct organisation and never executed the work satisfactorily. In getting the work transferred to Kodagu District Nirmithi Kendra accused No. 1. who happens to he the member of Legislative Assembly as well as accused No. 2. who was the member of Zilla Panchayath shown extra interest and enthusiasm. Accused No. 1, who was also the Deputy Speaker of Karnataka Legislative Assembly and accused No. 3, who was the Vice-president of Kodagu District Nirmithi Kendra, have hatched a plan.

Accused 1 & 2 knowing full well that Engineering Division of Kodagu Zilla Panchayat could not carry out the works due to technical and financial feasibility, over enthusiastically initiated a proposal for cancellation of administrative sanction, given to Engineering Division of Kodagu Zilla Panchayat and to transfer the work to Kodagu District Nirmithi Kendra. Accused No. 2 being the Chairman of Social Justice Committee of Zilla Panchayat. managed in getting responsibility of completing the project by himself. Accused No. 1 by a letter dated 06.10.2008 instructed the Director, Directorate of Tribal Welfare to transfer the project to Kodagu District Nirmithi Kendra. Accused No. 1 addressed a letter dated 13.06.2009 to the Liaison Officer, Scheduled Tribe Development Department (I.T.D.P), Madikeri and requested that the project in question should be transferred to Kodagu District Nirmithi Kendra. It was on account of pressure exerted by accused 1 & 2, the then Chief Executive Officer of Kodagu Zilla Panchayat, put up a proposal and wrote a letter on 08.09.2009 to the Director, Directorate of Tribal Welfare. Bangalore. In pursuance of letter dated 08.09.2009, an order was issued by the Social Welfare Department dated 24.04.2010, cancelling administrative sanction given to the Engineering Division of Kodagu Zilla Panchayat and entrusted the work to Kodagu District Nirmithi Kendra. Accused 3 & 4 became willing partners in the shoddy deal in question and became guilty associates of entire fraud.

The area in which the project to be implemented is a part of reserve forest. If anybody including accused carry out non-forest activities, without the approval of Central Government, they would be committing an offence u/s 2 of the Forest (Conservation) Act. 1980. punishable u/s 3A of the said Act. On 06.03.2011, accused entered the work spot in reserve forest area and carried out "Bhoomi Pooja" by spending an amount not more than Rs. 20,000/- and thereafter no work was earned out in respect of Doddareshme Haddlu Project. The Liaison Officer of Integrated Tribal Development Project at the instance of accused No. 3, released a sum of Rs. 59 lakhs to Kodagu District Nirmithi Kendra. Ac-used No. 4 submitted a report that work to the tune of Rs. 40 lakhs has already been completed without executing any work apart from leveling the work place for the purpose of "Bhoomi Pooja" performed on 06.03.2011. Thus, without carrying out any work, a sum of Rs. 40 lakhs has been misused by accused and thereby accused abusing their position as public servants, committed the above acts without there being any public interest and obtained pecuniary advantage.

As already stated, this complaint was referred u/s 156(3) Cr.P.C. by the learned Special Judge to the Deputy Superintendent of Lokayukta Police at Kodagu.

4. Sri S.Vijay Shankar, learned senior counsel appearing for accused No. 1 has made following submissions:-

I. The allegations made against accused No. 1 in the complaint, accepted at their face value would not constitute any cognizable offence. The learned Special Judge without application of mind has referred the complaint u/s 156(3) Cr.P.C. Therefore, reference is vitiated.

II. The letters dated 06.10.2008 and 13.06.2009 written by accused No. 1 as a Member of Legislative Assembly was in the interest of tribal people. The letters do not bear slightest indication that accused No. 1 had exerted pressure or misused public office to get the work transferred to Kodagu District Nirmithi Kendra.

III. The order of transfer of work from Engineering Division of Zilla Panchayat to Kodagu District Nirmithi Kendra was pursuant to Government Order No. SKE 88 PVY 2010 dated 24.04.2010 made by order and in the name of Governor of Karnataka by the Secretary to the Department of Social Welfare, Government of Karnataka. Therefore there is no nexus between the Government Order dated 24.04.2010 and letters written by accused No. 1 on 06.10.2008 and 13.06.2009.

IV. The members of Kodagu Zilla Panchayat by resolution dated 26.02.2008, entrusted the matter to accused No. 2, who was the Member of Kodagu Zilla Panchayat and Chairman of Social Justice Committee of Kodagu Zilla Panchayat.

V. From the allegations of complaint, it is not possible to attribute direct or vicarious criminal liability to accused No. 1.

VI. The complaint is motivated to malign accused No. 1.

5. Sri Murthy Dayanand Naik, learned counsel appearing for accused 2 to 4 has made following submissions:-

I. Accused No. 2 was the member of Kodagu Zilla Panchayat and Chairman of Social Justice Committee As per resolution made by Kodagu Zilla Panchayat on 26.02.2008, accused No. 2, who was also the Chairman of Social Justice Committee was entrusted with the responsibility of expediting the work of Reshme Haddlu project, entrusted to Engineering Division of Zilla Panchayat, Kodagu.

II. The work was transferred from Engineering Division of Kodagu Zilla Panchayat to Kodagu District Nirmithi Kendra, in terms of Government Order No. SKE 88 PVY 2010 dated 24.04.2010, issued by the Secretary to Department of Social Welfare by order and in the name of Governor of Karnataka. Therefore, accused No. 2 was not responsible for the transfer of work.

III. The allegations of complaint and documents filed along with complaint accepted at their face value do not constitute offences alleged against accused 2 to 4.

IV. Even as per the averments of complaint, accused No. 3 was not the Chief Executive Officer and he was not in any way responsible for transfer of work to Kodagu District Nirmithi Kendra, Kushalnagar.

V. Accused No. 3 being the Chief Executive Officer of Kodagu Zilla Panchayat, has carried out instructions given by Kodagu Zilla Panchayat members in terms of section 197 of the Karnataka Panchayat Raj Act, 1993. Therefore, accused No. 3 cannot be held criminally liable for discharging his official duties.

VI. Accused No. 4 being the Project Manager of Kodagu District Nirmithi Kendra has executed the work. The work could not be completed due to initiation of instant complaint. The complainant has not produced documents to show that accused No. 4 has misappropriated funds allotted for execution of work.

6. Sri A.K.Subbaiah learned counsel appearing for II-respondent has made following submissions:-

i. That accused No. 1 has wielded his influence to get the work transferred from Engineering Division of Kodagu Zilla Panchayat to Kodagu District Nirmithi Kendra, without there being public interest with intention of gaining pecuniary advantage for himself and others.

II. The letters written by accused No. 1, who is the Member of Legislative Assembly and the then Deputy Speaker of Legislative Assembly on 06.10.2008 and 13.06.2009 would amply demonstrate that accused No. 1 had motive to exert pressure and wield his influence to get the work transferred from Engineering Division, Kodagu Zilla Panchayat to Kodagu District Nirmithi Kendra, without there being any public interest.

III. Accused No. 2 being the member of Kodagu Zilla Panchayat and also Chairman of Social Justice Committee, had taken up the responsibility of executing the work of renovation of a tank called Doddareshme Haddlu with the sole intention of siphoning funds. These acts are substantiated by the letter written by accused No, 1 on 06.10.2008, directing the Director, Directorate of Scheduled Castes & Scheduled Tribes, Bangalore to transfer the work from Engineering Division of Kodagu Zilla Panchayat to Kodagu District Nirmithi Kendra.

IV. The learned counsel for II respondent would submit that accused Nos.3 and 4 have misappropriated funds, without executing any work. They have fabricated documents to show that they have spent a sum of Rs. 40 lakhs for execution of work, whereas actual cost of executed work does not exceed Rs. 20,000/-.

V. This court while examining reference u/s 156(3) Cr.P.C., has limited jurisdiction. This court cannot examine averments of complaint and documents filed by complainant in detail, but for recording satisfaction whether averments of complaint and supporting documents filed by complainant would warrant reference u/s 156(3) Cr.P.C.

VI. The subsequent reports prepared by the Assistant Commissioner, Madikeri Sub-Division, on 03.08.2011 would disclose that Kodagu District Nirmithi Kendra to which work was transferred at the instance of accused 1 & 2 has not executed any work and place of execution of work falls in reserve forest area and no concurrence is obtained from the Forest Department. There are no beneficiaries in ''achukattu area''. Before executing the work, technical and financial feasibility was not taken into consideration.

VII. Accused No. 2 in a haste has directed accused No. 3 to release a sum of Rs. 59 lakhs in favour of accused No. 4. without there being any public interest, with sole intention of siphoning amount in favour of accused 1 to 4 and the matter warrants investigation.

VIII. There are no grounds to interfere with the reference made u/s 156(3) Cr.P.C.

7. Smt.T.M.Gayathri, learned counsel appearing for I respondent/Deputy Superintendent of Lokayukta Police has made following submissions:-

I. The interference of accused 1 & 2 in the matter ot" transfer- of execution of work from Engineering Division, Kodagu Zilla Panchayat to Kodagu District Nirmithi Kendra is obvious from letters written by accused No. 1 on 06.10.2008 and 13.06.2009.

II. Accused No. 2 without considering technical and financial feasibility and also without ascertaining the reasons for not executing the work by the Engineering Division, Kodagu Zilla Panchayat without public interest, wrote a letter to the Liaison Officer, Integrated Tribal Development Project, Scheduled Tribe Development Department, Madikeri on 16.10.2008, directing him to cancel the work allotted to the Engineering Division of Kodagu Zilla Panchayat and transfer the same to Kodagu District Nirmithi Kendra though such power was not vested with accused No. 2.

III. As the matter is under investigation, this court cannot interfere with the investigation.

The learned counsel for I-respondent has relied on a decision of the Supreme Court, reported in State of Karnataka and Another Vs. Pastor P. Raju, .

8. As could be seen from the impugned order, the learned trial Judge on receipt of complaint has referred the complaint u/s 156(3) Cr.P.C., to the Deputy Superintendent of Police. Madikeri.

9. In a decision reported in R. Kalyani Vs. Janak C. Mehta and Others, , the Supreme Court has held 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.

10. In a decision reported in 1999 (2) KCCR 1564 (in the case of Guruduth Prabhu and another Vs. Sri M.S.Krishna Bhat &, Others), a Division Bench of this court, has held that while exercising power u/s 156(3) Cr.P.C. the Magistrate is required to apply his mind.

11. On presentation of complaint, learned Magistrate has passed an order reading as hereunder:-

Case referred to Lokayukta Police, Madikeri u/s 156(3) Cr.P.C., for investigation & submit report.

It is not possible to ascertain the reasons for reference. Therefore, the only way left to this court is to consider whether the averments of complaint and contents of supportive documents accepted at their face value would constitute a cognizable offence and allegations made against each of the accused would warrant investigation u/s 156(3) Cr.P.C.

12. The allegations made against accused 1 to 4 are not identical, as also public offices held by them are different. In the circumstances, it is necessary to consider the averments of complaint and documents filed along with complaint to find out whether reference u/s 156(3) Cr.P.C. against each of the accused was justified.

13. The allegations made against accused No. 1 is predominantly based on letters dated 06.10.2008 and 13.06.2009. The first letter is in the form of information to the Director. Directorate of Scheduled Castes & Scheduled Tribes, Bangalore. In this letter, accused No. 1 has informed the Director that renovation work of tank called "Doddareshme Haddlu" will have to be expedited, Therefore, the same be entrusted to Kodagu District Nirmithi Kendra. The second letter dated 13.06.2009 addressed to the Liaison Officer, Scheduled Tribe Development Department, I.T.D.P. Madikeri, is in the form of a request. In this letter, it is stated that amount was earmarked in the year 2005-06. The work was entrusted to the Engineering Division of Kodagu Zilla Panchayat, but work has not commenced. Therefore, work may be withdrawn and the same may be entrusted to Kodagu District Nirmithi Kendra.

14 In the narration of facts, I have stated that in terms of G.O.No. SKE 88 PVY 2010 dated 24.04.2010. administrative and financial approval for execution of work by Kodagu District Nirmithi Kendra and withdrawal of work from Engineering Division, Kodagu Zilla Panchayat, was issued by the Secretary to the Department of Social Welfare, Government of Karnataka by order and in the name of Governor of Karnataka.

15. From the documents filed by the complainant. I find apart from accused No. 1, the other representatives of people had made such a request. Accused No. 1 was not the decision taking authority. There are no averments in the complaint that G.O. No. SKE 88 PVY 2010 dated 24.04.2010, issued by the Secretary to Department of Social Welfare, by order and in the name of Governor of Karnataka is vitiated by influence wielded by accused No. 1.

16. The learned senior counsel appearing for accused No. 1, relying on a decision of the Supreme Court, reported in Maksud Saiyed Vs. State of Gujarat and Others, and also a decision of Division Bench of this court, reported in 1999 (2) KCCR 1564 (in the case of Guruduth Prabhu & another Vs. Sri M.S.Krishna Bhat & others) would submit that while exercising power under sections 156(3) Cr.P.C., or 200 Cr.P.C., the Magistrate is required to apply his mind. The penal law does not attach vicarious liability unless statute takes within its fold.

17. The learned senior counsel appearing for accused No. 1 would submit that court cannot automatically refer the complaint for investigation u/s 156(3) Cr.P.C., unless court is prima facie satisfied that averments of complaint would disclose a cognizable offence.

18. On careful consideration of averments of complaint and letters relied upon by the complainant, I find that first letter dated 06.10.2008 is in the form of information and the second letter dated 13.06.2009 is in the form of a request. The reasons assigned in the letters are that the amount was allocated in the year 2005-06 and the Engineering Division of Kodagu Zilla Panchayat to which the work was entrusted had not commenced the work. Therefore, work may be entrusted to Kodagu District Nirmithi Kendra. The subsequent resolutions passed by Kodagu Zilla Panchayat and letters of correspondence by the Chief Executive Officer, Kodagu Zilla Panchayat and the Director, Directorate of Scheduled Castes & Scheduled Tribes, Bangalore, which ultimately culminated in issuance of G.O.No. SKE 88 PVY 2010 dated 24.04.2010, do not establish that accused No. 1 had wielded his influence in the decision making process. Ultimately, the power to grant administrative and financial approval had vested with the Secretary to Government, Social Welfare Department, who had issued G.O No. SKE 88 PVY 2010 dated 24.04.2010 by order and in the name of Governor of Karnataka.

19. The averments of complaint and the documents filed along with the complaint accepted at their race value do not establish that accused No. 1 had abused his position as a public servant for entrustment of work to Kodagu District Nirmithi Kendra or for withdrawal of work from Engineering Division of Kodagu Zilla Panchayat. It is not the case of complainant that G.O.No. SKE 88 PVY 2010 dated 24.04.2010 is vitiated by malafides. Therefore, I am'' of the considered opinion that averments of complaint and documents filed along with complaint accepted at their face value would not disclose that accused No. 1 had abused his position as a member of Legislative Assembly or Deputy Speaker of Karnataka Legislative Assembly and had exercised official power in such capacity to obtain any pecuniary advantage.

20. As regards accused No. 2, documents in particular, the resolution of Kodagu Zilla Panchayat dated 26.02.2008 would disclose accused No. 2, was not only the member of Kodagu Zilla Panchayat and he was also the Chairman of Social Justice Committee. In the aforestated resolution, the responsibility of expediting the work was entrusted to accused No. 2. Accused No. 2 had addressed a letter on.16.10.2008 to the Liaison Officer, Scheduled Tribe Development Department. Madikeri that a decision has been taken in the meeting of Zilla Panchayat held on 26.02.2008 to withdraw the work from Engineering Division of Kodagu Zilla Panchayat, pursuant to decision taken by resolution of Zilla Panchayat. In the resolution dated 26.02.2008, accused No. 2 was not empowered to take a decision, but he was given the responsibility to expedite the work. Accused No. 2 by exorcising official power, directed the Liaison Officer, Scheduled Tribe Development Department to cancel the work entrusted to Engineering Division of Kodagu Zilla Panchayat and entrust the work to Kodagu District Nirmithi Kendra.

21. At this juncture, it is necessary to refer to constitution of Kodagu District Nirmithi Kendra. The Kodagu District Nirmithi Kendra is a Government of Karnataka undertaking established under the Societies Registration Act in the year 1990. The Deputy Commissioner is the Chairman, Chief Executive Officer of Zilla Panchayat is the Co-Chairman. Deputy Secretary. Zilla Panchayat, Chief Accounts Officer. Zilla Panchayat, Executive Engineer, PWD and Executive Engineer (Engineering Division) are the membeRs. The member Secretary is the District Manager. Thus, from constitution of Kodagu District Nirmithi Kendra, it is clear that it a Government of Karnataka undertaking established under the Societies Registration Act.

22. That on 16.10.2008, accused No. 2 had written a letter to Liaison Officer, Scheduled Tribe Development Department (F.T.D.P.), Madikeri, as if he had been empowered to transfer the work from Kodagu Zilla Panchayat, even without, administrative and financial approval from the Department of Social Welfare, Government of Karnataka.

23. At this juncture, it is necessary to refer to section 195 of the Karnataka Panchayat Raj Act, 1993, which deals with the mode of making contracts.

Section 195 of the Karnataka Panchayat Raj Act, 1993 reads thus:-

195. Mode of making contracts.-(1) Every contract or agreement entered into on behalf of the Zilla Panchayat, shall be binding on the Zilla Panchayat only if the said contract or agreement as executed in accordance with the provisions of this section.

(2) The Chief Executive Officer shall, execute contracts or agreements on behalf of the Zilla Panchayat in respect of matters which he is empowered to carry out under the provisions of this Act. He may execute such contract or agreement on behalf of the Zilla Panchayat upto such amount of value of contract or agreement as may be specified by the Government from time to time. In all other cases he shall execute a contract or agreement only with the sanction of the Zilla Panchayat.

24. Accused No. 2, who had been authorised by the resolution of Zilla Panchayat dated 26.02.2008 to expedite execution of work has ignored statutory provisions and has written letter dated 16.10.2008. as if he was the sole repository of power. Accused No. 2 had not bothered to verify the fate of work after it was entrusted to Kodagu District Nirmithi Kendra. The allegations made in the complaint and supporting documents would reveal that accused No. 2 as a member of Zilla Panchayat and the Chairman of Social Justice Committee has misused his official position without there being any public interest. The letter dated 16.10.2008, addressed by accused No. 2 to the Liaison Officer (I.T.D.P.). Madikeri, Scheduled tribe Development Department, would reveal that accused No. 2 had directed the Liaison Officer to withdraw the work from the Engineering Division of Zilla Panchayat and entrust the work to Kodagu District. Nirmithi Kendra even before administrative and financial approval war, sanctioned by the Department of Social Welfare. Government of Karnataka. Accused No. 3 at the instance oi" accused No. 2 had obtained estimation of work from Kodagu District Nirmithi Kendra. The hasty action taken by accused No. 2 by usurping power not vested with him as alleged in the complaint, and as found in the documents annexed to complaint would constitute offences alleged against accused No. 2, warranting investigation u/s 156(3) Cr.P.C.

25. As already stated, accused No. 3 was not the Chief Executive Officer before work was transferred from the Engineering Division of Kodagu Zilla Panchayat to Kodagu District Nirmithi Kendra, in terms of the Government Order dated 24.04.2010, but the subsequent correspondence and the acts of accused No. 3 would reveal his culpability. On 16.12.2010. accused No. 3 had placed work order with the Project Manager, Kodagu District Nirmithi Kendra, giving estimate of work as follows:-

The English version of which reads as follows:-

The work order dated 16.12.2010 contains various conditions, which in fact were not complied by accused No. 4 before funds were released to him. Accused No. 3 before issuance of work order to accused No. 4 had not verified from the Engineering Division or Kodagu Zilla Panchayat about estimate prepared by it and reasons for not obtaining technical approval.

In the letter dated 20.06.2011, the Executive Engineer of Engineering Division of Kodagu Zilla Panchayat, Madikeri, had informed II-respondent that originally Rs. 89.5 lakhs were sanctioned for execution of work during the year 2006-07. After preparing estimation, it was found that estimate for execution of work would be Rs. 120 Lakhs. Therefore, the Engineering Division of Kodagu Zilla Panchayat had sought for administrative approval of the Director. Directorate of Scheduled Castes A Scheduled Tribes, Bangalore.

The letter dated 17.09.2010, written by the present Chief Executive Officer, Kodagu Zilla Panchayat, Madikeri, would reveal that work order was issued, without obtaining estimation of work and technical sanction. The records do not reveal reasons for non-application of Karnataka Transparency in Public Procurements Act, 1999, in the matter of entrusting the work to Kodagu District Nirmithi Kendra, Kushalnagar. The work order dated 16.12.2010 is in contravention of section 197(3) of the Karnataka Panchayat Raj Act, 1993.

26. It is seen from the Official Memorandum dated 08.02.2011 that accused No. 3 had directed the Liaison Officer, Schedule Tribe Development Department, (I.T.D.P.), Madikeri, to draw a sum of Rs. 59 lakhs out of Rs. 120 lakhs and deposit the same in the account held by the Project Manager of Kodagu District Nirmithi Kendra (accused No. 4). Accused No. 3 had not ensured estimated cost of work entrusted to accused No. 4. Accused No. 3 had not verified execution of work by accused No. 4.

27. The report dated 03.08.2011, submitted by the Assistant Commissioner, Madikeri Sub-Division, pursuant to directions given by the Deputy Commissioner. Madikeri would reveal that on 21.07.2011, the Assistant Commissioner along with some of the members of Kodagu Zilla Panchayat had visited "Doddareshme Haddlu" and found that certain areas of work spot falls within forest area and no concurrence was obtained from the Forest Department before execution of work. There was sporadic execution of work. The technical and financial feasibility was not considered before entrusting the work to Kodagu District Nirmithi Kendra. There was partial desiltation and mud so excavated had been laid on tank bund. Accused No. 3 having entrusted the work to accused No. 4 has failed to supervise the work to ascertain that cost of work executed was anywhere nearer to the amount of Rs. 59 Lakhs, which had been released in favour of accused No. 4

28. Accused No. 4 to whom work was entrusted had not prepared bills from time to time. Even the extract of measurement book purported to be for the period from 09.03.2011 to 30.13.2011 maintained by accused No. 4 clearly reveals that entire measurement book was written at a stretch to make it appear that accused No. 4 had spent a sum of Rs. 39,50.000/- during the period between 09.03.2011 and 30.11.2011. The extract of measurement book gives a sad reflection of nature of work executed by accused No. 4. Accused No. 4 has made entries in the measurement book as aforestated and has also relied on estimation of work prepared by M/s.Vikas Consultancy Services, Architects & Consultants, Vidyaranyapura Post Bangalore.

29. As already stated, Kodagu District Nirmithi Kendra of which accused No. 4 was the Project Manager, is a Government of Karnataka undertaking established under the Societies Registration Act in the year 1990. The Deputy Commissioner is the Chairman, Chief Executive Officer of Zilla Panchayat is the Co-Chairman, Deputy Secretary, Zilla Panchayat Chief Accounts Officer, Zilla Panchayat. Executive Engineer, PWD and Executive Engineer (Engineering Division) are the membeRs. The member Secretary is the District Manager. If the execution of work and the amount expended were transparent, accused No. 4 would have got the estimation of work executed prepared by the Executive Engineer, Public Works Department, who was one of the members of Kodagu District Nirmithi Kendra. The reasons for accused No. 4 for getting the report of cost of work executed from M/s.Vikas Consultancy Services, Architects & Consultants, Vidyaranyapura Post, Bangalore (a private consultant), would justify the averments of complaint made against accused No. 4.

30. Therefore. I am of the considered opinion that averments of complaint and documents filed along with the complaint accepted at their face value would establish that accused 2 to 4 have misused their official position and acted without any public interest by spending money from public exchequer for gaining pecuniary advantage for themselves. The allegations made against accused 2 to 4 warrant investigation u/s 156(3) Cr.P.C.

31. The learned counsel appearing for Lokayukta Police would submit that when the matter is under investigation, this court cannot interfere u/s 482 Cr.P.C.

32. The learned senior counsel appearing for accused No. 1 would submit that they have not sought for quashing investigation but they have challenged the reference made u/s 156(3) Cr.P.C. The learned senior counsel would submit that before making a reference u/s 156(3) Cr.P.C., the learned Judge should have applied his mind to the averments of complaint and the documents filed along with complaint to satisfy himself for referring the complaint u/s 156(3) Cr.P.C.

33. In the discussion made supra, 1 have held that this court has to consider whether averments of complaint and contents of supportive documents accepted at their face value would constitute a cognizable offence and allegations made against each of the accused would warrant investigation u/s 156(3) Cr.P.C.

34. The learned counsel appearing for accused 2 to 4 relying on the judgment of the Supreme Court (in the case of Dr.Subramanian Swamy Vs. Dr.Manmohan Singh & another) dated 31.01.2012 would submit that the trial court should not have referred the complaint u/s 156(3) Cr.P.C., since the complainant had not obtained sanction to prosecute the accused for an offence u/s 13(d) of the Prevention of Corruption Act, 1988.

In the aforestated judgment, in paragraphs 42 to 44, the Supreme Court has held:-

42. In formulating this submission, the learned Attorney General substantially advanced two contentions. The first contention is that an order granting sanction is not required to be filed along with a complaint in connection with a prosecution u/s 19 of the P.C.Act. The aforesaid submission is contrary to the settled law laid down by this Court in various judgments. Recently a unanimous three-judge Bench decision of this Court in the case of State of U.P. Vs. Paras Nath Singh, , speaking through Justice Pasayat and construing the requirement of sanction, held that without sanction:

.... The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black s Law Dictionary the word cognizance means jurisdiction or the exercise of jurisdiction or power to try and determine causes. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been commuted during discharge of his official duty.

43. The other contention of the learned Attorney General is that in taking cognizance under the P.C.Act the Court is guided by the provisions u/s 190 of the Code and in support of that contention the learned Attorney Ceneral relied on several judgments. However, the aforesaid submissions were made without noticing the judgment of this Court in the ease of Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh and Another, . Dealing with Section 19 of P.C.Act and Section 190 of the Code, this Court held in paragraph 8 at page 713 of the report as follows:

....The Prevention of Corruption Act is a special statute and as the preamble shows, this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. (See Godde Venkateswara Rao v. Govt. of A.P., State of Bihar v. Dr.Yogendra Singh and Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth.) Therefore, the provisions of Section 19 of the Act will have an overriding effect over the general provisions contained in Section 190....

44. Therefore, concurring with brother Singhvi, J., I am unable to uphold the submission of the learned Attorney General.

In the aforestated judgment, the Supreme Court has held:-

20..... Though, the term cognizance has not been defined either in the 1988 Act or the Cr.P.C., the same has acquired a definite meaning and connotation from various judicial precedents. In legal parlance cognizance is "taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially. In R.R. Chari Vs. The State of Uttar Pradesh, , the three Judge Bench approved the following observations made by the Calcutta High Court in Superintendent and Remembrancer of Legal AffaiRs. West Bengal v. Abni Kumar Banerjee (supra):

What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence u/s 190(1)(a). Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter - proceeding u/s 200 and thereafter sending it for inquiry and report u/s 202. When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g. ordering investigation u/s 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.

(underlining supplied)

In the case on hand, the learned trial Judge has not taken cognizance of offences. The learned trial Judge has referred the complaint u/s 156(3) Cr.P.C. The order made by the learned trial Judge does not indicate that he has taken cognizance of offences to try and determine the cause.

Therefore, submission of learned counsel for accused 2 to 4 cannot be accepted.

35. In the discussion made supra, I have referred to the allegations of complaint and documents relied upon by the complainant and recorded my findings with reference to accused 1 to 4. Therefore, I hold that allegations of complaint and documents relied upon by complainant accepted at their face value do not constitute cognizable offences alleged against accused No. 1 and do not warrant reference and investigation u/s 156(3) Cr.P.C.

36. As regards accused 2 to 4, allegations of complaint and documents relied on by the complainant accepted at their face value would constitute cognizable offences alleged against them, warranting reference and investigation u/s 156(3) Cr.P.C.

37. In the result. I pass the following: -

ORDER

I. Criminal Petition No. 7055/2011 is accepted. The impugned reference is modified.

II. The impugned reference u/s 156(3) Cr.P.C., for investigation of allegations of complaint and offences alleged against accused No. 1 is quashed.

III. Criminal Petition No. 7056/2011, Criminal Petition No. 7057/2011 and Criminal Petition No. 7058/2011 are dismissed.

IV. The impugned reference u/s 156(3) Cr.P.C., as it relates to investigation of allegations made against accused 2 to 4 and offences alleged against accused 2 to 4 is confirmed.