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Judgment
Huluvadi G. Ramesh, J.—Petitioner is before this Court seeking to quash the First Information Report fried by the Lokayukta Police in Crime No. 8/2013 on 25.9.2013 under S. 13(1)(e) r/w S. 13(2) of the Prevention of Corruption Act, 1988 before the District & Sessions Judge, Bijapur. Heard the learned counsel for the petitioner and the counsel representing the Lokayukta.
It appears that petitioner has been serving as Project Manager of Nirmithi Kendra Bijapur, which is said to be a private society and unconnected with Government activities. The objects of Nirmithi Kendra are to develop skills in construction area may it be private or public as assigned by way of Civil contract. The Kendra is governed by its Governing Body duly constituted as per rules and regulations framed there under. The entire control, administration and management is solely governed by the Government body of the Nirmithi Kendra - Association. The terms of appointment and service conditions are within the memorandum of Association. It is submitted that from the source of information, respondent has initiated a case against the petitioner.
It is the contention of the petitioner that even an IAS officer deputed to a Co-operative Society drawing his salary from Society cannot be a public servant and the provisions of Prevention of Corruption Act, does not apply. The petitioner is not a public servant within the meaning of Section 2(c) of Prevention of Corruption Act. The petitioner falls totally outside the definition of public servant and jurisdiction of Lokayukta police and there is no scope and also looking into the body of the six bye-laws framed, though it is a private sector, it has to receive funds from the State Government or Central Government, no such fund has been received by the society for which the petitioner is the Project Manager. Only on the ground that the petitioner is a Project Manager, a case is registered against him.
The letter at annexure-C1 from the Housing department of the State Government addressed to the President of the Nirmithi Kendra clearly mentions that as per the rule 20 - appointment by deputation, the Nirmithi Kendra is registered under the Karnataka Societies Registration Act, 1960, it is not a Government department and also petitioner cannot be called as Government servant. Accordingly, it is contended that a false case has been initiated against the petitioner by the Lokayukta by filing a complaint before the Lokayukta police, Bijapur, alleging violation of Section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988. Hence, this petition.
Various Annexures produced by the petitioner do depict that except the Society is registered under the Karnataka Society Registration Act, petitioner cannot be said to be a public servant or Government servant as such, according to the petitioner, filing of the complaint and initiation of action against petitioner is without jurisdiction and also in violation of the provisions of the Karnataka Lokayukta Act as well as Prevention of Corruption of Act and the power exercised by the respondent by filing a complaint is nothing but abuse of process of law and also defamatory.
The learned counsel for the Lokayukta referring to S. 2(c)(xii) of the Prevention of Corruption Act, 1988 which reads:
Section 2(c)(xii) : Any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.
submitted that petitioner is an office bearer of Nirmithi Kendra which is receiving or having received any financial assistance from the State Government or Central Government, as such any violation forms the basis to initiate action against the petitioner under the provisions of Prevention of Corruption Act, 1988. The learned counsel also relied upon the decision reported in State of Punjab Vs. Karnail Singh, , wherein the Apex Court was dealing with similar case of Co-operative Agricultural Development Bank Limited, that was established by the Government and the appeal filed by the State was allowed and matter was remitted for reconsideration.
The submission of the learned counsel for the petitioner is that neither the Society has received the funds from the State Government or Central Government nor appointments are made by the Government and is having no character of any authority or local authority under the State. The filing of the complaint and initiation of proceedings against the petitioner is non-est in the eye of the law and is nothing but abuse of process of laws.
The petitioner is said to be the Project Manager of an institution which undertakes contracts taking no assistance of the State Government or Central Government. Accordingly, it is submitted the institution has no character of the Government or Governmental body. It is also submitted, there is a provision made to receive the amount from both the State Government or Central Government however, no such amount is received so far nor any financial assistance is extended to the Project Manager i.e., Nirmithi Kendra.
The learned counsel for the petitioner also relied upon the judgment reported in State of Maharashtra Vs. Laljit Rajshi Shah and Others, , wherein referring to Section 2 of the Maharashtra Co-operative Societies Act and also Section 21 of the Penal Code, as regards a ''Public Servant'' the Apex Court has held that the Chairman of Maharashtra Co-operative Societies Act, though, a public servant under Societies Act but not so, u/s 21 of Penal Code and he cannot be prosecuted for offences under the Penal Code and he cannot be prosecuted for the offence u/s 161 of the Co-operative Societies Act. The learned counsel also relied upon the judgment of this Court reported in Sri M.A. Parthasarathy Vs. The Spl. Deputy Commissioner, The State of Karnataka and The Commissioner, Survey, Settlement of Land Records, , wherein it held that as per Scheme of the Lokayukta Act, 1984, The condition precedent for submitting the said report is, only when the allegation is substantiated either wholly or partly against public servants so that follow up action may be taken against them by the Government. As per Section 7 of the Lokayukta Act, The investigation to be conducted by the Lokayukta and Upa-Loakyukta is in respect of a complaint against a public servant only. The words ''public servant'' has been defined u/s 2(12) of the Lokayukta Act.
The question in this case is with respect to the petitioner who is a Project Manager of Nirmithi Kendra which is neither enunciated by the State Government or Central Government, except a Society registered under the Societies Registration Act and the case of the petitioner does not fall within the definition of Section 2(12) of Lokayukta Act, so as to initiate action u/s 13(1)(e) of the Prevention of Corruption Act. In the above cited decision of the High Court, it is specifically held that Lokayukta or Upa-Lokayukta have no jurisdiction to entertain a complaint against the person who does not come within the definition of a public servant as defined under the Act. This makes it clear that except a provision that has been made in the bye-laws of Nirmithi Kendra to receive the funds etc., by the State Government or Central Government, in the absence of any such fund being received from the State Government or Central Government and without there being any misuse of power or misuse of the amount so available with the society, there was no scope for the investigation officer to file a complaint to the Lokayukta and the said complaint even if it filed, is non-est.
In view of the fact that there is no prima facie material made out by the complainant to demonstrate that the petitioner falls within the definition of Section 2(12) of the Lokayukta Act, the question whether the petitioner has got assets disproportionate to known source of income or not could be taken note of by some other authority. The very fact of filing a complaint against the petitioner is nothing but abuse of power and misuse of power by the complainant. Petition is allowed. The entire proceedings are quashed.