K.L. Negi and Others vs Wale Babu and Others

L. Narayana Swamy, J.—The petitioners in these petitions are challenging the institution of case in PC No. 2 of 2003 on the file of Principal Sessions Judge, Raichur as per Annexure-A for the offence punishable under Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act. A prayer is also made for quashing of the First Information Report registered in Crime No. 5 of 2003 by the Lokayukta Police, Raichur.

For clarity, the facts of the case in Writ Petition No. 3351 of 2004 are narrated. Petitioner in the said Writ Petition states that he was working as a Managing Director of Hutti Gold Mines at the relevant point of time. While he was so working, he terminated the services of the first respondent on 21st January 2001 on the ground of proven misconduct. Thereafter, as a part of vengeance, the first respondent has filed complaint Annexure-A with the Lokayukta Police alleging that the petitioner has committed an offence punishable under Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act. The learned counsel for the petitioner submits that the same was registered by the learned Magistrate without application of mind. He further submits that at the pre-cognizance stage itself, the learned Magistrate should have examined the veracity of the complaint and also should have given his thought as to whether the complaint is made on the basis of vengeance, or etc. This very complaint made by the first respondent is on the fact that the petitioner has instituted disciplinary action against him. Under the circumstance, instead of rejecting the complaint, the learned Magistrate directed the Police to register the case and the same is arbitrary and is in violation of provisions of the Prevention of Corruption Act. The learned counsel has taken a ground to set aside the complaint as well as the First Information Report, firstly, for the reason that the sanction has not been taken as required under Section 19 of the Prevention of Corruption Act. The Act is very clear that unless there is a prior sanction from the Government of India, as he is an officer of Indian Administrative Service cadre for whom the President of India is the appointing authority, the case cannot be registered. Since, no such sanction is obtained; the learned Magistrate should not have taken pre-cognizance of issuing direction to the Police to investigate. In similar situation where a case has been registered as part of vengeance, he has relied upon the judgment of Hon''ble Supreme Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, wherein in the course of Judgment it is held that the High Court may in exercise of powers under Article 226 or under Section 482 of the Code of Criminal Procedure may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice, where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

The learned counsel further submitted that before issuance of a direction to the police to register the case, the learned Magistrate should have given reasons as to whether he has satisfied for doing so. In support of this submission, the learned counsel has relied upon the judgment of the Hon''ble Supreme Court in Criminal Appeal Nos. 1590-1591 of 2013 (Special Leave Petition (Criminal) Nos. 6652-6653 of 2013) in the case of ANIL KUMAR AND OTHERS v. M.K. AIYAPPA AND ANOTHER wherein at paragraph 8 of the judgment, it is observed that in terms of Section 156(3) OR Section 200 of the Criminal Procedure Code, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a pubic servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient.

The learned Counsel appearing for the respondent Lokayukta, submits without referring to the termination order of the first respondent, the first respondent who is a public spirited person, has made complaint and the learned Magistrate, having satisfied about the materials and circumstances, issued direction to the Police to register the case. Hence, the registration of case against the petitioner is sound and proper. With regard to taking sanction from the Government, the learned counsel submits that only after the pre-cognizance stage it could be pressed into service. Under the circumstance, he submits to dismiss these petitions.

Heard the learned counsel appearing for the parties. To decide the case of the petitioner I have gone through the complaint made by the first respondent. In the complaint it has been stated that the petitioner was a public servant at the relevant point of time. While he was working as Managing Director of the Company as a Public servant, he has committed criminal action, which caused loss to the Government. Petitioner had floated a tender in the year 2000 for entrustment of sub-contract for removal of over burden including drilling, blasting and transportation at Hutti Gold Mines. Two persons came forward, viz. Dr. Bhandi of Bijapur and M/s. Kala Mines and Minerals of Goa. The case of Dr. Bhandi was rejected without there being any valid reason and with an ulterior motive the contract was awarded to the next bidder, which has caused loss to the Government in a tune of Rs. 35,00,000/-. The learned counsel referred to some Ruling and stated that the allotment of work to a single company is bad in law since in such a circumstance, fresh tenders should have been invited. The said action of the petitioner is nothing but unbecoming of an officer and thereby he has acted illegally. According to the first respondent, there may be a case against the petitioner, but the learned judge, before issuing direction to the Police, should have unearthed as to whether there is any substance in the case. The learned Magistrate might have satisfied for himself, but that itself is not sufficient, unless he gives reasons in the order. Section 156(3) of the Code of Criminal Procedure, no doubt, confers a right on the Magistrate. But there must be subjective satisfaction based on the objection, reasons and on the basis of materials. From the order dated 11th December 2003 of the Magistrate, it is seen that by referring to the judgments reported in ILR 2002 KAR. 3174, direction has been issued to the Superintendent of Police, Lokayukta. This cannot be said to be a reason for the purpose of Section 156(3) Cr.P.C.

The Hon''ble Supreme Court in the case of M.K. Aiyappa, (supra) at paragraph 8 of the judgment has observed thus:

"8. We may first examine whether the Magistrate, while exercising his powers under Section 156(3) Cr.P.C. could act in a mechanical or casual manner and go on with the complaint after getting the report. The scope of the above mentioned provision came up for consideration before this Court in several cases. This Court in Maksud Saiyed case (supra) examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order will not be sufficient. After going through the complaint, documents and hearing the complaint, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C. should be flected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation." 7. In the light of the said judgment, when the present case is examined, the order sheet discloses that the learned Magistrate has not assigned reasons for having satisfied for the purpose of issuing direction to police to investigate the matter. The First respondent has stated in the complaint that the petitioner, at the relevant point of time, was working as Managing Director. In the complaint itself he has stated that there were two applicants responded to the Tender Notification. The ruling referred to by the petitioner is that if there is only one bidder, then he has to re-issue tender notification, but that is not applicable in this case since there were two bidders, of which, the application of one has been rejected. Thereafter, the contract was given in accordance with norms and though it is said that he has caused huge loss to the Government, but there is no basis for that. A person, who has got the power to float tender notification, has also got power to accept the same since he is in charge of the entire unit as a whole. No such materials are available in the complaint made. As it is stated by the petitioner, the first respondent was dismissed from service on proven misconduct, and thereafter, this complaint was made. It is made clear that even if the complaint is made out of vengeance, what is required of the learned Magistrate is whether, on substance and available materials, he has satisfied himself for issuance of direction to the police to register the case.

Section 19 of the Prevention of Corruption Act requires prior sanction for prosecuting a case against person. As is stated earlier, the petitioner is an Indian Administrative Service Officer and for him the President of India is the appointing authority and sanction should have been obtained from the competent authority, but in the instant case no such sanction is obtained. Another important thing is that the tender notification is issued in the year 2000, while now, we are in 2015 i.e. one and a half decade has elapsed, and by looking at the age of one of the petitioners, whose age was 52 years at the time of institution of the case that now he must have retired from service on superannuation and at this stage if the petitioner is allowed to undergo this ordeal under Prevention of corruption Act, it will cause hardship to the petitioner. Whether it causes hardship or not, is not the matter which makes me to pass this order. I am not satisfied with the materials available in this petition and the same are insufficient for the purpose of bringing the petitioner within the ambit of Section 13(1) and 13(1)(d) of the Prevention of Corruption Act as also no useful purpose would be served and would only be a futile exercise. Moreover, if the first respondent is so vigilant, he should have approached this Court after service of notice and also should have sought for vacating the interim order granted by this Court. Even the Lokayukta could have made an application to vacate the interim order and made a necessary prayer to dismiss the petition. Even after lapse of more than a decade, no such action is taken either by the first respondent or by the Lokayukta. Under the circumstance, I pass the following:

ORDER

Registration of case against the petitioners in Crime No. 5 of 2003 by the Lokayukta Station, Raichur vide Annexure-B is hereby quashed.

In the result, the petitions are partly allowed.