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Judgment
The Revision Petitioners being arrayed as accused
persons in a private complaint filed by respondent No.2
are challenging the order of the Special Judge in taking
cognizance of the offence and issuing summons to them.
Briefly stated, the second respondent filed a
complaint against four accused persons. The First
accused is the Former Deputy Chief Minister/Chief
Minister of Government of Karnataka. The second
accused is the wife of third accused, who is MLC and
Former Minster of Government of Karnataka and the
fourth accused is the landlord of the immovable
properties, the de-notification of which was challenged in
the complaint. The learned Special Judge referred the
matter for investigation to the first
respondent/Lokayukta Police. After investigation, the
Investigating Officer submitted ''B'' Final Report since
there was no evidence/documentary proof in support of
complaint allegation. The learned Special Judge rejected
the final report and took cognizance in respect of the
offences under Sections 406, 409, 420, 463, 464, 468,
471 read with Section 120B of the Indian Penal Code,
Sections 13(1)(c) and (d) read with Section 13(2) of the
Prevention of Corruption Act (''the Act'' for short) and
Sections 3, 4 and 5 read with Section 9 of the Karnataka
Land (Restriction and Transfer) Act, 1991 (''the
K.L.R.T.Act'' for short).
Sri.C.V.Nagesh, learned Senior Counsel
appearing on behalf of the petitioners submits that the
final report was filed on 21.3.2012. On the same day,
complainant filed a memo and he was heard on
21.3.2012 and the matter was posted to 29.3.2012. On
29.3.2012 the matter was reserved for orders on
13.4.2012. However, the complainant got the case
advanced to 5.4.2012 and was heard. On 13.4.2012, the
learned Special Judge rejected the final report and took
cognizance against the petitioners and others and issued
summons returnable by 30.4.2012. The learned Judge
has not followed the mandatory procedure envisaged
under Sections 200 and 202 of the Code, in directly
issuing summons. Since the complainant had filed a
protest application, same had to be treated as private
complaint and the mandatory procedure contemplated at
Chapter-V of the Code ought to have been followed. The
discussion in the body of the impugned order does not
reflect that the learned Judge has taken cognizance. As
such, very reference of the complaint for investigation
was bad in law since the complainant had not obtained
prior sanction under Section 19 of the Act and Section
197 of the Code. Petitioner No.2 is a "public servant"
falling under the definition of Section 2(c) of the Act and
Section 21 of IPC. Thus the entire proceedings is
vitiated. Even otherwise, the complaint allegations do
not make out any offence against the petitioners. They
are in no way connected to the crime in question. The
complaint allegations are absurd and inherently
improbable. The impugned order is passed in a
mechanical way without application of mind. Hence, the
continuation of proceedings would be an abuse of
process of the Court and the petitioners will have to
unnecessarily undergo the ordeal of facing the trial
before the Special Court.
Learned Senior Counsel continues to submit that
as per law enunciated in Vasanti Dubey -vs- State of
Madhya Pradesh ([2012] 2 SCC 731), it is only after
holding an enquiry, the learned Trial Court would have
formed an opinion as to whether the complainant has
made out a case for the purpose of proceeding in the
matter. The impugned order is passed without proper
application of judicial mind, thus, against the principles
laid down by the Apex Court in Sunil Bharti Mittal -vs-
Central Bureau of Investigation reported in (2015) 4
SCC 609 and M/s.GHCL Employees Stock Option
Trust -vs- M/s.India Infoline Limited ((2013) 4 SCC
505).
The documents collected by the Investigating
Officer during the course of his investigation is not
looked into by the trial court. In the gazette notification
itself, the fourth accused Lingaiah''s name is notified and
award is also passed in favour of Lingaiah. As per the
status reports of the BDA, several structures have come
up over the land in Sy.Nos.77 and 78 of Nagadevanahalli.
Some of the structures are also regularized by the
authority concerned and a Trust is also running
educational institutions in the structure standing on the
land. B.D.A. has not been able to take possession of the
land. The investigation material also indicates that, large
extent of land in Sy.Nos.77 and 78 of Nagadevanahalli is
already de-notified and the land in question cannot be
availed by B.D.A. Since the possession of the land
continued with the applicant, the Government in its
wisdom and in exercise of power clothed upon it under
Section 48 of the Land Acquisition Act ordered
denotification of the land. Said order of denotification so
far is not challenged before any forum. There was no
illegality on the part of the land owner in continuing his
efforts for an order of denotification, since his name was
borne in the revenue records and the preliminary
notification, till issuance of notification under Section
16(2) of Bangalore Development Authority Act. The De-
notification Committee is not a Statutory Committee, it is
only a recommending body. The Trial Court itself has
observed that there was absolutely no legal impediment
for the authority to exercise its powers under Section 48
of the Land Acquisition Act. On identical allegations, the
cognizance taken by the Special Judge was quashed by
this Court in exercise of power under Section 482 of the
Code of Criminal Procedure (''the Code'' for short) in
Criminal Petition No.7274/2012 and connected cases
D.D. 18.12.2015 (Sri.Hamed Ali -vs- Kabbalegowda and
another). To make out an offence under Section 13(2) of
the Act for violation of the provisions of Section 13(1)(d)
of the Act, there must be material indicating demand or
request for a valuable thing or a pecuniary advantage by
the Public Servant, as held by the Apex Court, in
A.Subair -vs- State of Kerala reported in [2009] 6 SCC
587 . The vital fact is, in the complaint, there was no
allegation of demand and acceptance of illegal
gratification. Even the ingredients of Sections 406 and
420 of IPC are lacking in the case on hand (placing
reliance on Common Causes -vs- Union of India
([1999] 6 SCC 667) .
Learned Senior Counsel further submits that in
view of the following judgments of the Apex Court,
issuance of summons cannot be termed as an
Interlocutory Order within the meaning of Section
19(3)(c) of the Act or Section 397(2) of the Code:
i) Bhaskar Industries Ltd. -vs Bhiwani Denim
and Apparels Ltd. And Others (2001 SCC
(Crl.) 1254);
ii) Urmila Devi -vs- Yudhvir Singh ([2013] 15
SCC 624); and
iii) Prabhu Chawla -vs- State of Rajasthan and
Another (AIR 2016 SC 4245).
The petitioners are not challenging in these revision
petitions the Order directing framing of the charges.
Hence, the order of the learned Special Judge dated
13.4.2012 in P.C.R.No.25/2011 in taking cognizance of
the offence and issuing summons to the accused persons
since challenged, these revision petitions are
maintainable and the impugned order deserves to be set
aside.
Sri.B.S.Prasad, learned Special Public Prosecutor
for Lokayuktha though does not support the order of the
Special Judge, has a technical objection to the
maintainability of the petition in view of the bar
enumerated in Section 19(3)(c) of the P.C. Act restricting
revision jurisdiction against any interlocutory order
passed in the proceeding under the Act.
Sri.P.N.Hegde, learned Counsel appearing for R-
2/complainant in reply submits, first accused is the
Former Chief Minister of Government of Karnataka
between 30.5.2008 and 31.7.2011. The third accused
was earlier an MLA elected on Indian National Congress
ticket. He resigned from the membership w.e.f. 4.4.2009
and joined Bharatiya Janata Party and was inducted into
the Council of Ministers headed by first accused on
18.6.2009. In the by-election he suffered defeat, thus,
had to resign from the Council of Ministers on 31.8.2009.
He was elected to upper house of the Legislature on
24.6.2010 and was inducted to the Cabinet headed by
first accused. Second accused is the wife of third
accused. She is the President of VSS Educational Group
of Institutions and the Trustee of the VSS Educational
Trust. The fourth accused was the absolute owner of the
properties bearing Sy.No.77 measuring 1 acre 30 guntas
and another property bearing Sy.No.78 measuring 2
acres 10 guntas. A preliminary notification was passed
on 2.2.1989 by the Bangalore Development Authority for
the formation of Jnanabharathi Layout. The above said
properties belonging to the father of fourth accused were
notified. Objections were filed by the fourth accused and
his brother to the preliminary notification for the
proposed acquisitions. There was a family partition in
respect of the above properties and those properties fell
to the share of fourth accused. A memorandum of
partition was entered into on 28.10.1993. A final
notification came to be issued on 19.1.1994. Some
properties belonging to the father of fourth accused along
with the above mentioned properties were notified. Again
there was a protest memo by the fourth accused and his
brothers seeking to drop the proceedings. In furtherance
of the final notification, the possession of the land is
taken over on 26.8.1997 and is handed over to the
Engineering Section of BDA on 15.9.1997; award is
passed and the compensation is deposited in the RD
account of the BDA. A notification under Section 16(2) of
the L.A.Act is also issued on 25.6.1998. The fourth
accused was well aware of the above facts. Sections 3
and 4 of the Karnataka Land (Restriction on Transfer)
Act, 1991 creates a bar for the land owners from
disposing of notified lands. Still he has executed the sale
deed on 4.9.2004 and handed over possession. On the
same day, vacant site Nos.47, 48 and 49 carved out of
Sy.Nos.77 and 78 are sold out to second accused by a
separate registered sale deed for consideration and
possession is handed over. After the alienation, fourth
accused had no right to make any representation to the
Principal Secretary, Urban Development Department.
Until the first accused assumed office, the land was not
de-notified, however, on the first accused taking charge
as the Chief Minister of the State, the fourth accused
gave one more representation on 6.6.2009 to the
Principal Secretary, Urban Development Department to
drop 22 guntas of land in Sy.Nos.77 and 78, which he
had sold to the second accused. The Principal Secretary,
Urban Development Department in his note dated
20.6.2009 expressed his opinion that prayer sought for
cannot be considered as per law since the property has
already been vested with the BDA and the process of
acquisition is complete. But the first accused ignored the
opinion of the Senior Officer and overruled the decision of
the Principal Secretary and ordered for de-notification of
22 guntas of the land in Sy.Nos.77 and 78 in the name of
the fourth accused. When the second accused
purchased the lands in question, buildings were not
existing on the same. In the Assets and Liabilities
Statement for the year 2009-10, the third accused
submitted to the Registrar, Karnataka Lokayukta, since
he was the then sitting MLC had declared that, site
Nos.47, 48 and 49 in Sy.No.78 measuring 21178 sq.ft.
worth Rs.28,35,314/- is leased out and vacant plot No.50
measuring 2490 sq.ft. stands in the name of second
accused in the same survey number. There was no
mention of any building standing on the land. But the
fourth accused in his application stated that there were
buildings over the said properties and he is in possession
of the same at the time of passing the de-notification
order of the lands by the first accused.
Learned Counsel continues to submit that the
second accused filed her self-assessment of property tax
in respect of the properties situated in Sy.Nos.77 and 78
to the BBMP for the year 2007-2008. In her self-
assessment of property tax for the year 2008-2009, for
the first time, she declared the total built up area of the
building as 26620 sq.ft. consisting of five floors in the
lands purchased by her and declared that the said land
was constructed in the year 2004. That establishes the
fact that, vacant land was leased to third parties. No
building plan for construction of the building was
obtained from the authorities and the land was already
in possession of BDA for formation of layout. Thus, both
the second and third accused have violated the
regulations and illegally constructed the building by
using political power. Second and fourth accused by
using their political influence got the land de-notified
through the first accused. The first accused in order to
make unlawful gain to his supporters/second accused,
conspired with the co-accused and floated all existing
rules and regulations. The Investigating Officer after
investigation has filed the final report on following
counts:
a) The fourth accused sold the land in favour
of the second accused without disclosing
the acquisition of the said land for the
formation of layout;
b) The second accused purchased the land
without knowing the acquisition
proceedings;
c) Physical possession of the land since was
not taken over by BDA, the possession
remained with accused No.4;
d) As per Section 27 of BDA Act, 1976, the
scheme will lapse if the authority fails to
execute the scheme substantially within a
period of five years from the date of the
publication in the official gazette.
e) Issuance of notification under Section 16(2)
of Land Acquisition Act is not sufficient
unless physical possession is taken. The
remaining land in survey number is de-
notified in favour of Housing Cooperative
Society on two occasions.
f) The former Chief Ministers had ordered for
de-notification/to take needful action and
the second accused after purchasing the
land started institutions;
g) There is no evidence of third accused
participating in the process of de-
notification;
h) The SPP gave his opinion that it is a fit
circumstance to file B report.
But the above reasons assigned by the I.O. are not
tenable. The fourth accused despite selling the land
continued to maintain that he is in possession of the
property. Non-execution of the scheme under Section 27
of the BDA Act for a small piece of land does not fall
within the definition of Section 27 of the BDA Act. It is
not within the jurisdiction of the I.O. to opine the manner
in which possession taken is right or wrong. Subsequent
to the final notification, mahazar was drawn, possession
was taken over, award was passed and notification under
Section 16(2) was also issued. The land was handed over
to the Engineering Section of BDA for formation of sites,
but on account of pendency of the litigations, the officials
could not form the sites. De-notification of the adjacent
land is not a ground for de-notifying the land in question.
The circumstances under which those lands were de-
notified is totally different from the one in the hand. Any
order of the Government needs to be issued and
published in the name of the Governor of the State
authenticated by the Under Secretary to the concerned
Department in terms of business transaction rules once
former Chief Minister had de-notified the land. But, de-
notification in question did not culminate into formal
order. The effort of former Chief Minister in de-notifying
the land is not a ground for the subsequent Chief
Minister to float the rule. In the last representation of
the accused made in the year 2009, for the first time, he
disclosed the name of the purchaser as Shylaja, wife of
Somanna. That leaves no room for the I.O. to hold that
the third accused had no role in getting the property de-
notified. The way the I.O. framed questionnaire discloses
that he made up his mind to file final report in the form
of ''B'' right from the beginning of the investigation.
Involving or obtaining opinion from the Public Prosecutor
is not provided either under the Code or under the Police
Manual. The I.O. was not right in seeking opinion from
the Public Prosecutor to arrive at the final conclusion.
The material collected by the I.O. is sufficient to hold that
the accused are guilty of the offences and rightly the
Special Judge rejected the ''B'' final report and has taken
cognizance of the offences and the revision petitions are
liable to be dismissed.
In the light of the above rival submissions
and on perusal of the lower court records, the point that
arises for my consideration is:
"Whether the order of the Special Judge in taking cognizance of the alleged offence and issuing summons to the petitioners is illegal?"
The attack on these revision petitions at the first
stroke is on the maintainability of the revision petitions
in view of special bar contemplated under Section 19
sub-section (3) (c) of the Act, which reads thus:
"19. Previous sanction necessary for prosecution. - (1) . . . .
(2) . . . . . .
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) . . . .
(b) . . . .
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings."
A Special Judge is appointed by the
Government in exercise of the power under Section 3 of
the Act and jurisdiction of Special Judge is regulated by
Section 4 of the Act. The position of a Special Judge is
that of a Magistrate as settled by the Apex Court in
A.R.ANTULAY -vs- RAMDAS SRINIWAS NAYAK AND
ANOTHER (AIR 1984 SC 718).
In Rajendra Kumar Sitaram Pande &
Others -vs- Uttam & Another reported in AIR 1999
S.C. 1028, the Apex Court observed thus:
" ... it would not be appropriate to hold that
an order directing issuance of process is purely
interlocutory and, therefore, the bar under sub-
section (2) of section 397 would apply. On the
other hand, it must be held to be intermediate
or quasi final and, therefore, the revisional
jurisdiction under section 397 could be
exercised against the same. . . . ."
Yet, in another judgment, in the case of
Urmila Devi -vs- Yudhvir Singh [(2013) 15 SCC 624],
on a survey of earlier judgments covering the controversy,
the legal position was asserted to the effect that the
revisional jurisdiction under Section 397 of the Code is
available to the aggrieved party challenging the order of
the Magistrate directing issuance of summons.
By virtue of Section 27 of the Act, the High
Court exercises appellate and revisional jurisdiction over
the Special Court as if it is a Sessions Court trying the
cases within the local limits of the High Court. That
being so, in the light of the legal position cited supra, the
bar contemplated by sub-section (3) of Section 19 of the
Act pertaining to interlocutory order in an enquiry, trial,
appeal or proceedings under the Act, definitely has no
application, to challenge the process ordered by the
Special Judge against the accused persons. Hence, there
cannot be any room to entertain the doubt about the
maintainability of the present petition.
Now reverting back to the case of the revision
petitioners, they are assailing the order of the Special
Judge basically, on the cognizance taken in the absence
of previous sanction from the State Government; secondly
on the ground that process is issued directly without
holding enquiry as enumerated by Section 200 of the
Code and thirdly, it is an order without application of
mind.
As per the complaint allegation, at the time of
lodging the complaint, the first accused is the former
Chief Minister and the third accused/second petitioner of
Crl.R.P.No.473/2012 is a former Minister for Housing
between 18.6.2009 and 31.8.2009. He was re-elected on
24.6.2010. The de-notification is ordered by the first
accused on 25.9.2009. Admittedly, the complaint is
without the back up of previous sanction. Cognizance
taken without previous sanction is barred (as per (2012)3
SCC 64 Subramanian Swamy Vs Manmohan Singh &
others and N.K.Ganguly Vs C.B.I (2016) 2 SCC 143 ). It
is also the law that if on the date of taking cognizance
accused continues to be a public servant but in a
different capacity or is holding a different office than the
one alleged to have been abused (as per Abhay Singh
Chautala Vs C.B.I (2011)7 SCC 14) ), s anction is not a
pre-requirement. Though the Special Judge has not
dwelled upon requirement of previous sanction under
Section 19 of the Act or otherwise, it may be conveniently
assumed that cognizance taken and process issued is not
hit by Section 19(1) of the P.C. Act. Thus the first ground
urged by the revision petitioners gets diffused.
Much reliance is placed on the judgment of
Vasanti Dubey''s case (supra) which highlighted the
requirement of an independent enquiry before taking
cognizance and issuing process under Section 200 of the
Code. In India Carat (Pvt.) Ltd. -vs- State of
Karnataka ( 1989(2) SCC 132), three Judges'' Bench of
the Apex Court had dealt in detail the power of the
Magistrate under Sections 90(1)(b), 200, 202 and 204 of
IPC, as under:
" 16. The position is, therefore, now well
settled that upon receipt of a police report
under Section 173(2) a Magistrate is entitled
to take cognizance of an offence under
Section 190(1)(b) of the Code even if the
police report is to the effect that no case is
made out against the accused. The
Magistrate can take into account the
statements of the witnesses examined by
the police during the investigation and take
cognizance of the offence complained of and
order the issue of process to the accused.
Section 190(1)(b) does not lay down that a
Magistrate can take cognizance of an offence
only if the Investigating Officer gives an
opinion that the investigation has made out
a case against the accused. The Magistrate
can ignore the conclusion arrived at by the
Investigating Officer and independently
apply his mind to the facts emerging from
the investigation and take cognizance of the
case, if he thinks fit, in exercise of his
powers under Section 190(1)(b) and direct
the issue of process to the accused. The
Magistrate is not bound in such a situation
to follow the procedure laid down in Sections
200 and 202 of the Code for taking
cognizance of a case under Section 190(1)(a)
though it is open to him to act under Section
200 or Section 202 also. The High Court
was, therefore, wrong in taking the view that
the Second Additional Chief Metropolitan
Magistrate was not entitled to direct the
registration of a case against the second
respondent and order the issue of summons
to him."
While laying down the law regarding
requirement of an independent enquiry prior to issue of
process in Vasanti Dubey''s case (supra) , the facts and
circumstances of the said case was not distinguished
from India Carat (supra), there was no reference to the
said case. Thus, the judgment of India Carat (supra),
which is by Larger Bench of the Apex Court, holds over
the judgment of Vasanti Dubey (supra). Same legal
position is reiterated by the Apex Court in its later
judgment i.e., State of Orissa -vs- Habibullah Khan
[(2003) 12 SCC 129] and it was observed that the
Magistrate can take into account the statements of the
witnesses examined by the Police during investigation
and take cognizance of the offence complained of and
order the issue of process to the accused. In that view of
the matter, the second ground on which these revisions
are brought finds no support.
Thus we arrive at the third ground, i.e., non-
application of mind of the Special Judge and the order
not disclosing his satisfaction about existence of a prima
facie case to issue summons to the accused.
The very scheme of the Act is to provide
punishment for the offence of bribery and corruption
among public servants. While Section 7 deals with
public servants taking gratification other than legal
remuneration in respect of official act, Section 13
envisages punishment for the offence of criminal
misconduct of public servant. Sections 10 and 11
contemplate punishment for abetment of offence defined
under Sections 8 and 9 of Act respectively and receiving
valuables without consideration. By Sections 8 and 9 of
the Act, others (whoever) taking gratification to influence
public servant/for exercise of personal influence with
public servant are brought to justice.
The intriguing question is, under what
category, revision petitioners herein fall? To say that the
second petitioner of Crl.R.P.No.473/2012 has not acted
under the capacity of a public servant at the time of
alleged offence and previous sanction is not warranted to
take cognizance against him, then he falls under either of
the category of Section 8 or 9 of the Act. The two
petitioners of Cr.R.P.No.473/2012, as such are not the
public servants. Then it follows that unless the
ingredients of Section 8 or 9 of the Act is satisfied from
the acts alleged against them, they cannot be prosecuted
before the forum of Special Court.
The learned Special Judge in the body of his
order has not made endeavour to record his satisfaction
as to the existence of a prima facie case in respect of the
offences for which he issued summons i.e., Sections 406,
409, 420, 463, 464, 468, 471 r/w Section 120-B of IPC,
Section 13(1)(c) & d (i) r/w section 13(2) of Act, Sections
3, 4 and 5 r/w Section 91 of the Karnataka Land
(Restriction on Transfer) Act 1991. The entire exercise of
the Special Judge was only to reject the ''C'' Final Report
submitted by the Investigating Officer with an omnibus
observation that the documents collected by the I.O.
corroborates the allegation. Even if that were to be so,
the learned Sessions Judge was obliged to reason out
how the acts alleged against the petitioners herein fall
within the four corners of the offences under the Act,
K.L.R.T.Act and Indian Penal Code in respect of which
summons was ordered.
In Pepsi Food Limited Vs. Judicial
Magistrate reported in 1998(5) SCC 749 the Hon''ble
Supreme Court highlighted the importance of the stage,
the Magistrate issues summons to the accused persons
in respect of the alleged offences. Para-28 relevant for
the moment reads as follows:
"28 . Summoning of an accused in a criminal
case is a serious matter. Criminal law cannot be
set into motion as a matter of course. It is not that
the complainant has to bring only two witnesses to
support his allegations in the complaint to have the
criminal law set into motion. The order of the
Magistrate summoning the accused must reflect
that he has applied his mind to the facts of the
case and the law applicable thereto. He has to
examine the nature of allegations made in the
complaint and the evidence both oral and
documentary in support thereof and would that be
sufficient for the complainant to succeed in
bringing charge home to the accused. It is not that
the Magistrate is a silent spectator at the time of
recording of preliminary evidence before
summoning of the accused. The Magistrate has to
carefully scrutinize the evidence brought on record
and may even himself put questions to the
complainant and his witnesses to elicit answers to
find out the truthfulness of the allegations or
otherwise and then examine if any offence is prima
facie committed by all or any of the accused".
In M/s GHCL Employees Stock Option
Trust''s case (supra), the omission on the part of the
Magistrate for not recording his satisfaction in his order
issuing summons about the prima facie case against the
accused and the role played by them in their official
capacity was strongly taken note of.
In Sunil Bharathi Mittal''s case (supra) at
para.48 it was held thus:
"48. Sine qua non for taking cognizance of the
offence is the application of mind by the Magistrate
and his satisfaction that the allegations, if proved,
would constitute an offence. It is, therefore,
imperative that on a complaint or on a police
report, the Magistrate is bound to consider the
question as to whether the same discloses
commission of an offence and is required to form
such an opinion in this respect. When he does so &
decides to issue process, he shall be said to have
taken cognizance. At the stage of taking cognizance,
the only consideration before the court remains to
consider judiciously whether the material on which
the prosecution proposes to prosecute the accused
brings out a prima facie case or not."
In the case of Mehmood Ul Rehman vs.
Khazir Mohammad Tunda and Others reported in
(2015) 12 SCC 420 , it was observed at para Nos.21 and
22 thus:
"21. Under Section 190(1)(b) CrPC, the
Magistrate has the advantage of a police report
and under Section 190(1)(c) CrPC, he has the
information or knowledge of commission of an
offence. But under Section 190(1)(a) CrPC, he has
only a complaint before him. The Code hence
specifies that "a complaint of facts which
constitute such offence". Therefore, if the
complaint, on the face of it, does not disclose the
commission of any offence, the Magistrate shall
not take cognizance under Section 190(1)(a) CrPC.
The complaint is simply to be rejected.
The steps taken by the Magistrate
under Section 190(1)(a) CrPC followed by Section
204 CrPC should reflect that the Magistrate has
applied his mind to the facts and the statements
and he is satisfied that there is ground for
proceeding further in the matter by asking the
person against whom the violation of law is
alleged, to appear before the Court. The
satisfaction on the ground for proceeding would
mean that the facts alleged in the complaint
would constitute an offence, and when
considered along with the statements recorded,
would, prima facie, make the accused
answerable before the court. No doubt, no formal
order or a speaking order is required to be passed
at that stage. The Code of Criminal Procedure
requires speaking order to be passed under
Section 203 Cr.P.C. when the complaint is
dismissed and that too the reasons need to be
stated only briefly. In other words, the
Magistrate is not to act as a post office in taking
cognizance of each and every complaint filed
before him and issue process as a matter of
course. There must be sufficient indication in the
order passed by the Magistrate that he is
satisfied that the allegations in the complaint
constitute an offence and when considered along
with the statements recorded and the result of
inquiry or report of investigation under Section
202 CrPC, if any, the accused is answerable
before the criminal court, there is ground for
proceeding against the accused under Section
204 CrPC, by issuing process for appearance.
The application of mind is best demonstrated by
disclosure of mind on the satisfaction. If there is
no such indication in a case where the Magistrate
proceeds under Sections 190/204 CrPC, the High
Court under Section 482 CrPC is bound to invoke
its inherent power in order to prevent abuse of the
power of the criminal court. To be called to
appear before the criminal court as an accused is
serious matter affecting one''s dignity, self-respect
and image in society. Hence, the process of
criminal court shall not be made a weapon of
harassment"
The jurisdiction of a Special Judge under the
Act is controlled by Section 4 of the Act. The Special
Judge gets jurisdiction to try the offences notified by the
Government for a particular area under sub-section (1) of
Section 3 of the Act. In addition to that, Sub-Section (3)
of Section 4 enables him to try other offences apart from
the offences under the Act. Relevant Sub-Section reads
thus:
"4(3) When trying any case, a special Judge
may also try any offence, other than an
offence specified in Section 3, with which the
accused may, under the Code of Criminal
Procedure, 1973(2 of 1974), be charged at the
same trial."
Thus, it is clear that unless any out of many
other acts alleged against an accused falls within the
description of the offence contemplated under the Act, a
Special Judge does not get jurisdiction to try the offences
under IPC or any other allied statute. Unfortunately,
learned Special Judge did not address this aspect of the
matter. There is no indication of application of his mind
as to what offence the alleged acts amount to. He gets
jurisdiction to try offences under I.P.C. if only ingredients
of any of the offences under Sections 7 to 11 and 13 of
the Act is attracted as against the revision petitioners.
He has not expressed his satisfaction that for violation of
provisions of K.L.R.T Act, Special Court is the right forum
for prosecution. That cloths the impugned order with
illegality.
In Urmila Devi ''s case (supra), it was declared
by the Apex Court that such an order of a Magistrate
deciding to issue process or summons to an accused in
exercise of his power under Sections 200 to 204 of the
Code can always be the subject matter of challenge under
inherent jurisdiction of the High Court under Section 482
of the Code.
Still, it is for the Special Judge, being the
primary Authority to discharge his function in
accordance with the requirement of law, but not for this
Court to take over the matter from the province of the
Trial Court. The revisional power of this Court is to see
that justice is done in accordance with the recognized
rules of Criminal Jurisprudence and the subordinate
courts do not exceed their jurisdiction or abuse the
powers vested in them under the Code. In that view of
the matter, it suffices for the present to set aside the
order impugned with a direction to the court below to
firstly ascertain from the complaint and evidentiary
material collected by the Investigating Officer as to the
jurisdiction of the Special Court to entertain the
complaint, and then to take the matter to its logical end.
It is also for the Special Judge to record his satisfaction
from the record before him as to what offences are made
out to issue summons to the accused.
The Revision Petitions are allowed. The order dated
13.4.2012 in Special C.C.No.46/2012 (PCR No.25/2011)
passed by the Special Judge thereby taking cognizance
and issuing summons to the revision petitioners in
respect of the offences under Sections 406, 409, 420,
463, 464, 468, 471 read with Section 120-B of the Indian
Penal Code, Sections 13(1)(c) and (d) read with Section
13(2) of the Act and Sections 3, 4 and 5 read with Section
9 of the K.L.R.T.Act, is set aside. The learned Special
Judge is directed to re-consider the matter in the light of
the observations supra.