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Judgment
N. Ananda
This petition is filed to quash the proceedings initiated in PCR No.27/2011. on the file of Special Judge for Prevention of Corruption Act, Bangalore City and quash the order dated 03.12.2011 referring the complaint u/s 156(3) Cr.P.C., for investigation by Lokayukta Police.
I have heard Sri Hashmath Pasha, learned counsel for petitioner, Sri S.G.Rajendra Reddy learned counsel for I-respondent and II respondent Sri T.J.Abraham, Party-in-person.
The relevant averments of complaint as they relate to petitioner are as follows:-
(a) In the month of July 2006, one Sri Janardhana Reddy, MLC, said to have made allegation that the petitioner has collected bribe of Rs.150 crores from the Miners and the same was published in "The Hindu" News Paper dated 15th July 2006.
(b) The petitioner has approved the Mining Lease illegally in favour of M/s. Shree Sai Venkateshwara Minerals in respect of 550 acres of land in Jog, Thimmappagudi. Vhavihalli, NEB Range. Sandur Taluk, Bellary District in violation of Rule 59 of the Mineral Concession Rules, 1960.
(c) That the petitioner is to have indulged in renewal of Mining Lease No.593/933 in favour of M/s.Janthakal Enterprises and also put pressure on the Commissioner, Mines and Geology Department to issue permit for lifting old dump of 1 lakh M.T. of low grade iron and manganese.
Sri. Hashmath Pasha, learned counsel for petitioner has made following submissions:-
I The averments of complaint that in the month of July 2006 Sri Janardhana Reddy, MLC, had alleged that petitioner had collected bribe of Rs.150 crores from miners, extracted from news item published in "The Hindu" newspaper dated 15.07.2006 are baseless.obviously without there being any supporting material. The learned Special Judge, without noticing these averments of complaint has referred the same for investigation u/s 156(3) Cr.P.C. which manifestly demonstrates lack of application of mind before making reference u/s 156(3) Cr.P.C.
II. The averments of complaint, regarding approval of mining lease in favour of M/s.Sai Venkateshwara Minerals, in respect of 550 acres of land in Jog, Thimmappagudi, Vhavihalli, NEB Range, Sandur Taluk, Bellary District, in violation of Rule 59 of the Mineral Concession Rules, 1960, accepted on their face value do not constitute an offence punishable u/s 13(1)(d) r/w section 13(2) of the Prevention of Corruption Act, 1988 (for short, ''the P.C.Act'').
III. The averments of complaint that the petitioner had renewed mining lease in favour of M/s.Janthakal Enterprises and exerted pressure on the Commissioner of Mines & Geology to issue permit for lifting old dump of 1 lakh metric tonne of low grade iron and manganese ore are baseless. In respect of these allegations, proceedings were initiated in PCR No.9/2011. After enquiry, summons were issued. The proceedings in PCR No.9/2011 were quashed by this court in Crl.P.No.4707/2011 dated 21.10.2011. In the circumstances, the allegations made against petitioner in the instant complaint, which is a second complaint, should not have been referred u/s 156(3) Cr.P.C.
IV. The grant of mining lease in favour of M/s.Shree Sai Venkateshwara Minerals was the subject matter of W.P.No.22348/2009 dated 26.08.2009, wherein this court has directed;- the State Government to pass orders revising exact availability of land and send recommendations to the Central Government for its approval and the Central Government on receipt of such recommendations to be made by the State Government shall pass orders, without prejudice to the rights of the petitioner and subject, to the decision of the revision pending before the Central Mines Tribunal against the lease granted in favour of VISL u/s 17A of the MMDR Act.
Therefore, grant of mining lease in favour of Shree Sai Venkateshwara Minerals do not attract an offence punishable u/s 13(1)(d) r/w section 13(2) of the P.C.Act.
V. The allegations made against the petitioner in respect of grant of an area of 550 acres of land in Jog, Thimmapagudi, Vhavihalli, NEB Range, was a matter of enquiry by the Lokayukta of Karnataka on the reference made by the Government of Karnataka u/s 7 (2-A)of the Karnataka Lokayukta Act, 1984 (for short, ''the Act"). The averments of complaint are reiterations of facts stated in the report submitted by Lokayukta vide page 269 of 464 Part-II. The Government of Karnataka has not so far accepted the report as required u/s 12(4) of the Act. Therefore, complaint filed by a private citizen u/s 200 Cr.P.C., is not maintainable. There is legal bar under sections 12& 14of the Act to investigate into the allegations made against petitioner.
VI. The cognizance of an offence for alleged violation of Rule 59 of the Mineral Concession Rules, 1960 can be taken by a competent court only upon a complaint lodged by a competent officer u/s 22 of the Mines and Minerals (Development and Regulation) Act, 1957 (for short, MMDR Act'').
VII. The petitioner is a Member of Parliament and he was the former Chief: Minister of Karnataka State, therefore, there must be a suitable preliminary enquiry into the allegations made in the first information report. The preliminary enquiry is necessary; ultimately if allegations are found baseless, that would cause irreparable loss and injustice to petitioner.
VIII. The learned Special Judge without application of mind has referred the complaint u/s 156(3) Cr.P.C. Therefore, complaint registered in PCR No.27/2011, on the file of Special Judge for Prevention of Corruption Act, Bangalore City and subsequent reference u/s 156(3) Cr.P.C., for investigation by Lokayukta Police are liable to be quashed.
The II-respondent T.J.Abraham, party-in-person has made following submissions:-
I. There is no legal bar for investigation of offences alleged against petitioner, merely because the State Government has not made up its mind to act upon the report submitted by the Lokayukta.
II. The averments of complaint, which are based upon Lokayukta report would constitute offences alleged against the petitioner, in any event, in this petition u/s 482 Cr.P.C., averments of complaint will, have to be accepted on their face value. The II-respondent as a citizen of this country has every right to set criminal law into motion, more particularly when the competent authorities have neither accepted nor rejected Lokayukta report.
III. This court cannot interfere with the investigation, which is at threshold.
The party-in-person has relied on the judgment made by a Division Bench of this court in W.P.No.4231/2009 dated 24.04.2009.
The learned counsel appearing for Lokayukta Police, relying on a decision of this court reported in 2008 (4) KCCR 2842 (in the case of Sri Govindaraju Vs. State of Karnataka) and a decision of the Supreme Court, reported in State of Karnataka and Another Vs. Pastor P. Raju, . would submit that this court in exercise of its powers u/s 482 Cr.P.C., cannot interfere with the investigation of offences under the provisions of Prevention of Corruption Act, 1988.
In view of the aforestated submissions and contentions urged by the parties, the following points would arise for determination: -
(1) Whether averments of complaint made against this petitioner accepted on their face value would constitute offences alleged against the petitioner?
(2) Whether there is legal bar to continue investigation of complaint and consequent first information report, which are founded on the report submitted by Lokayukta when the Government has not taken any action in terms of section 12of the Karnataka Lokayukta Act, 1984 and there is bar to initiate a complaint u/s 200 Cr.P.C., in view of the provisions contained u/s 14of the Karnataka Lokayukta Act, 1984?
(3) Whether the impugned order calls for interference?
My findings on the above points and reasons there for are as follows: -
Point No. 1:
The averments of complaint as they relate to petitioner herein and which have been referred u/s 156(3) Cr.P.C., are stated supra. It is not in dispute that the averments extracted at paragraph 3(a) supra are based upon a news item published in "The Hindu" newspaper dated 15.07.2006. The averments made in paragraph 3(a) supra had not been referred to Lokayukta in the reference u/s 7(2-A)of the Act. Even in the report submitted by the Lokayukta, there is no reference to these averments. Thus, on the basis of allegations made by Sri Janardhana Reddy, the then MLC that petitioner has collected bribe of Rs.150 crores from miners, which was published in "The Hindu" newspaper dated 15.07.2006, which are absurd and inherently improbable, it is not possible to hold that such allegations would constitute any cognizable offences against petitioner.
The learned counsel for petitioner has brought to the notice of this court said Sri Janardhana Reddy, who had filed a writ petition before this court for a direction to CBI investigation into such allegations was unsuccessful before this court. Thereafter, he was before the Hon''ble Supreme Court in W.P.(Civil) No.573/2006 and the same was dismissed as withdrawn by an order dated 10.08.2010.
The learned counsel for petitioner, relying on a decision of this Court, reported in Guruduth Prabhu and Others Vs. M.S. Krishna Bhat and Others, would submit that the order of learned Sessions Judge, directing investigation u/s 156(3) Cr.P.C., without applying his mind to the allegations of complaint is without jurisdiction. This court either u/s 482 Cr.P.C., or under article 226 of the Constitution is empowered to quash the investigation.
The learned Special Judge has failed to apply his mind as to whether averments of complaint based on such newspaper item would constitute offences alleged against the petitioner.
In a decision reported in 1992 SCC (Cri) 426 (in the case of State of Haryana & others Vs. Bhajan Lal and others), the Supreme Court has held where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceedings against the accused, the first information report is liable to be quashed. The court can exercise powers u/s 482 Cr.P.C., to quash the proceedings.
In the case on hand, averments of complaint are reiterations of news item published in "The Hindu" newspaper dated 15.07.2006 against the petitioner that, he had collected bribe of Rs.150 crores from miners are as vague as they could be. If Sri Janardhana Reddy had any first hand information as published in Hindu Newspaper dated 15.07.2006, he would not have kept quite, without setting criminal law into motion. Therefore, I hold that the impugned order as it relates to reference of these averments of complaint for investigation u/s 156(3) Cr.P.C. cannot be sustained.
It is averred in the complaint that petitioner by abusing his position as the Chief Minister of the State of Karnataka, has approved mining lease in favour of M/s.Shree Sai Venkateshwara Minerals in respect of 550 acres of land in Jog, Thimmappagudi, Vhavihalli, NEB Range, Sandur Taluk, Bellary District, which is in violation of Rule 59 of the Mineral Concession Rules, 1960.
The learned counsel for petitioner would submit/that order made by the petitioner even if it is accepted, it is only an administrative order. Therefore, on the basis of such order, it is not possible to hold that petitioner has committed offences alleged against him.
The learned counsel for petitioner would further submit even in the Lokayukta report, the petitioner has not been indicted and there is no recommendation by the Lokayukta to prosecute the petitioner.
The party-in-person, referring to the report of Lokayukta would submit that Lokayukta after a detailed enquiry has indicted the petitioner. Therefore, contention of petitioner that averments of complaint relating to grant of mining lease in favour of M/s.Shree Sai Venkateshwara Minerals by the petitioner do not constitute offences alleged against the petitioner cannot be accepted. The party-in-person would submit that at this stage, averments of complaint based on the report of Lokayukta will have to be accepted on their face value and petitioner cannot be permitted to contradict these allegations.
At this stage, it cannot be disputed that petitioner as the Chief Minister of State of Karnataka has passed the following order on 05.10.2007:-
I have perused the records. The Mining Lease in respect of 550 acres of land in Jog. Thimmappagudi. Vhavihalli, NEB Range, Sandur Taluk, Bellary District is granted in favour of the following:
M/s.Sri Sai Venkateshwara Minerals
Sd/- H. D. Kumaraswamy, Chief Minister.
It is not in dispute that petitioner was the Chief Minister of State of Karnataka during period between 03.02.2006 and 08.10.2007. Thus, the petitioner as the Chief Minister of State of Karnataka made the above order on 05.10.2007 i.e. just 3 days prior to resigning from the post of Chief Minister.
The report, of Lokayukta under the caption "ILLEGAL APPROVAL OF MINING LEASE IN FAVOUR OF SHREE SAI VENKATESHWARA MINERALS" is found at page 279 of 464. In the report, the Lokayukta has stated the following:-
There were 29 applicants for allotment of mining lease on the same area for different extent of land. The applicant Sri S.V.Sakre. represented M/s.Shree Sai Venkateshwara Minerals (SSVM) and has described himself as the leading manufacturer of steel and iron rods. He has claimed at para (4) that mining and industries as his profession; at para (2) of the application, he has stated that SSVM is a private limited company, which was subsequently contradicted by him. Subsequently, he would claim that M/s.Shree Sai Venkateshwara Minerals is an unregistered partnership firm. The Lokayukta on verification has found that the Director of Mines & Geology has made a comparative statement of all the applications and submitted the same to the State Government on 14.09.2006 for processing the same under Rule 28(1) and 59(2) of Mineral Concession Rules. 1960.
The petitioner being the Chief Minister of the State of Karnataka has approved mining lease in terms of the order dated 05.10.2007. The grant of mining lease without obtaining relaxation from the Central Government under Rule 59(2) of the Mineral Concession Rules, 1960 and Rule 59(1)(a) of the Mineral Concession Rules, 1960. The grant of mining lease of large extent of 550 acres in forest area for mining lease in favour of M/s.Shree Sai Venkateshwara Minerals, which is an unregistered partnership firm, having no experience in mining activities and iron ore trade is arbitrary, non-transparent and in violation of Rule 59 of Mineral Concession Rules, 1960. After having the approval from the then Chief Minister, a letter was written to the Director of Mines and Geology, on the very same day i.e., on 06.10.2007, to submit the proposal for onward submission to Government of India. In the said letter, the name of Sri Vinod Goel as Proprietor of M/s.Shree Sai Venkateshwara Minerals was introduced for the first time by substituting the name of Sri S.V.Sakre. The relevant portion of letter is as follows:-
Thus, we find from the letter, the name of Sri S.V.Sakre was substituted with Sri Vinod Goel and he has been shown as Proprietor of M/s.Shree Sai Venkateshwara Minerals.
On verification, it was found that said Sri Vinod Goel was not the proprietor and there was no such name in the original application of Sri S.V.Sakre. The name of Vinod Goel as Proprietor of M/s.Shree Sai Venkateshwara Minerals was introduced later. On further verification, it was found that original application, which was submitted by Sri S.V. Sakre was replaced by another application and proposal was built up in favour of Sri Vinod Goel, as if the same was the original application. There was collusion between said Sri Vinod Goel and concerned officials. They had played fraud.
Apart from the above, the other illegalities highlighted in the report of Lokayukta are as follows:-
(b) the firm (SSVM) was not registered because no transaction and trading has been done with this firm so far:
(c) they have not obtained VAT registration in Karnataka;
(d) they have not obtained VAT registration in Maharashtra State also;
(e) Mr.Rajkumar Agarwal is his partner;
(f) No MST and KST number obtained;
(g) They have not opened any account by this firm Shree Sai Venkateshwara Minerals, because no transaction and trading has been done by this firm.
(h) The claim made by Sri S.V.Sakre as the Proprietor of M/.s.Shree Sai Venkateshwara Minerals was false address furnished by him relating to address of one Rajkumar Agarwal. On 14.04.2006. the firm was not in existence. The partnership deed was signed on 17.04.2006. the day of filing the application for mining lease before the Director of Mines & Geology.
It is further observed in the report:-
It is a matter of concern, as to how a firm which does not have VAT number, no financial transaction, no KST registration, no experience in mining and iron ore trading can be granted mining lease to an extent of 550 acres. When Sri Rajkumar Agarwal was questioned by the team of Dr.U.V.Singh, his answer was they are not in the mining business. Sri S.V.Sakre is a P.W.D. Contractor in Maharashtra. He also has no mining experience. The partnership deed of SSVM had not been enclosed while submitting the proposal application on 17/4/2006, instead in the application it has been recorded as a private company.
The Lokayukta has requested the State Government to intimate the proposed action to be taken as required u/s 12(4) of the Act.
The learned counsel for petitioner referring to the Lokayukta report, which is reiterated in the complaint would submit that Lokayukta has not recommended any action against petitioner.
This submission cannot be accepted, in view of the fact that in the Lokayukta report (vide page 238 of 464), it is stated thus:-
In the case of Sri H.D.Kumaraswamy, former Chief Minister of Karnataka, since he is not holding any public post under the State at present, no action is recommended. However, it is open for the Government to take appropriate action against him for his misconduct as stated in this chapter.
On perusal of records and averments of complaint and report of Lokayukta and related documents, at this stage, it is not possible to hold that averments of complaint relating to illegal grant of mining lease in favour of M/s.Shree Sai Venkateshwara Minerals by petitioner do not constitute offences alleged against the petitioner. Therefore, I hold that the impugned reference u/s 156(3) Cr.P.C., as it relates to investigation into allegations of complaint of illegal grant of mining lease by petitioner in favour of M/s.Shree Sai Venkateshwara Minerals vide order dated 05.10.2007 does not call for interference.
It is averred in the complaint that petitioner is said to have indulged in renewal of mining lease No.593/933 in favour of M/s.Janthakal Enterprises and also put pressure on the Commissioner, Mines and Geology Department to issue permit for lifting old dump of 1 lakh metric tonne of low grade iron and manganese. The learned counsel for petitioner would submit in relation to these averments, one Sri M.Vinod Kumar had initiated PCR No.9/2011, on the file of Special Judge at Bangalore, after enquiry, summons were issued. The petitioner challenged issuance of summons and complaint registered in PCR No.9/2011 in Criminal Petition No.4707/2011. On 21.10.2011, this court accepted criminal petition No.4707/2011 and quashed PCR No.9/2011. Therefore, there cannot be a second investigation into very allegations, which have been quashed by this court in Crl.P.No 4707/2011.
This court-in Crl.P.No.4707/2011 dated 2.1.10.2011 while dealing with the allegations made against the petitioner for passing the order, permitting lifting of iron ore by M/s.Janthakal Enterprises, has held:
As regards the allegation concerning passing an order permitting lifting of iron ore in favour of M/s.Janthakal Enterprises is concerned, the material placed reveals that the order was passed by the Commissioner of Mines and Geology and not by the first petitioner and secondly Government of India had already accorded sanction and only implementation of it was done by the said Commissioner. Therefore, even this allegation against first petitioner does not stand on the strength of very complaint averments and the documents produced by the complainant.
The II-respondent/party-in-person would submit that in Criminal Petition No.4707/2011, this court has quashed the proceedings on the basis of averments of compliant made therein. This court has not considered the report of Lokayukta regarding illegalities committed in renewal of mining lease in ML No.593/933 in favour of M/s.Janthakal Enterprises and the report of Lokayukta, had not been made available to this court. Therefore, in Crl.P.No.4707/2011 this court had no occasion to consider whether recommendations of Lokayukta relating to this aspect would constitute offences alleged against petitioner.
After a detailed analysis. Lokayukta in his report dated 27.07.2011 at page No.277 of 464 has stated:-
24) In the case of Sri K.D.Kumaraswamy, former Chief Minister of Karnataka, since he is not holding any public post under the State at present, no action is recommended. However, it is open for the Government to make assessment, if any Joss is caused and take appropriate action against him.
It is not in dispute and cannot be disputed that. II-respondent (complainant) herein is entirely relying on the report of Lokayukta submitted on 27.07.2011. The party-in-person (complainant) has entirely relied on the report of Lokayukta and he has entirely reiterated the facts narrated in the report of Lokayukta dated 27.07.2011. The complainant has not furnished any other material. The averments of complaint and the related facts stated in the report of Lokayukta accepted on their face value do not constitute offences alleged against petitioner.
In view of the above discussion, I hold that the impugned order of reference as it relates to investigation of offences alleged against petitioner regarding illegal grant of mining lease in favour of M/s.Shree Sai Venkateshwara Minerals does not call for interference.
The allegations of complaint that petitioner had collected bribe of Rs.150 crore from miners which are reiterations of news item published in "The Hindu" newspaper dated 15.07.2006, even accepted on their face value do not constitute offences alleged against petitioner and do not warrant investigation u/s 156(3) Cr.P.C., The averments of complaint and offences alleged to have been committed by petitioner to favour M/s.Janthakal Enterprises do not warrant reference u/s 156(3) Cr.P.C. Point no. 1 is answered accordingly.
Point No.2:
The learned counsel for petitioner has submitted that there is legal bar to initiate complaint and continue investigation of first information report under reference, in view of the provisions contained under sections 12& 14of the Karnataka Lokayukta Act, 1984. The learned counsel for petitioner has submitted that Karnataka Lokayukta Act, 1984 being a special act would over ride the provisions of Prevention of Corruption Act, 1988. The learned counsel for petitioner would submit that it is for the competent authority to act or not to act upon the report submitted by Lokayukta. The report submitted by Lokayukta is still pending consideration before the competent authority. Therefore, there is legal bar for initiation of complaint on the basis of facts stated in the report of Lokayukta. The complainant has no locus standi to initiate the complaint. The offences for violation of Rule 59 of the Mineral Concession Rule''s, 1960 can be taken cognizance only upon a complaint lodged by a competent officer u/s 22 of MMDR Act.
The II-respondent party-in-person, relying on the judgment of the Supreme Court, reported in R.S. Nayak Vs. A.R. Antulay, would submit that there is no bar to initiate complaint under the provisions of Prevention of Corruption. Act, 1988.
The II-respondent/party-in-person relying on the judgment of this court in W.F.No.25574/2009 dated 08.10.2009 would submit, that there is no bar to initiate complaint/prosecution into allegations made in the complaint based upon the report of Lokayukta, which is neither accepted nor rejected by the competent authority.
In a decision reported in V.L. Shankar and Another Vs. State of Karnataka and Another, , this court considering repugnancy between section 14of the Karnataka Lokayukta Act, 1984 and section 19 of the Prevention of Corruption Act, 1988 has held:-
A reference to the relevant text of the two provisions is necessary to examine the aspect of ''repugnancy'' and its extent.
Section 14of the Karnataka Lokayukta Act. 1984:
Initiation of prosecution - If after investigation into any complaint the Lokayukta or an Upa-Lokayukta is satisfied that the public servant has committed any criminal offence in a Court of law for such offence, then, he may pass an order to that effect and initiate prosecution of the public servant concerned and if prior sanction of any authority is required for such prosecution, then, notwithstanding anything contained in any law, such sanction shall be deemed to have been granted by the appropriate authority on the date of such order.
Section. 19 of the P.O. Act, 1988:
Previous sanction necessary for prosecution: (1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2).............
. A plain reading of the above would show that Section 14of the Lokayukta Act is repugnant to Section 19 of the P.C. Act, 1988 to the extent, it confers power to grant sanction for prosecution for the offences for which previous sanction is required u/s 19 of the P.C. Act, 1988. The repugnancy arose in the year 1988 when parliament enacted the P.C. Act, 1988, The effect of this repugnancy is that Section 14does not confer power on the Lokayukta or Upa-Lokayukta to order prosecution against a public servant for offences enumerated in Section 19 of the P.C. Act, 1988 without obtaining the previous sanction of the Government or the authority concerned, wherever such previous sanction is required. In the present case, previous sanction of the State Government was required u/s 19 of the P.C. Act, 1988 for prosecution of the petitioners as they were employees of the State Government. Hence, ordering prosecution of the petitioners without the previous sanction of the State Government cannot be sustained in law.
It is relevant to State that the President''s assent to a State Law under Article 254(2) does not confer irrevocable immunity to the State law from the operation of the rule of repugnancy The fact that the President''s assent has been obtained for a State law under Clause (2) of Article 254 will not make it immune from alack for repugnancy to a subsequent parliamentary enactment. The immunity will be available only till parliament makes any law with respect to the same matter making a provision conflicting with the State law. In view of the proviso to Clause 2 of Article 254, parliament can enact any law repugnant to the earlier State law which had received the assent of the President. When parliament enacts such a law, the State law would be void to the extent of repugnancy.
In a decision reported in T. Barai Vs. Henry Ah Hoe and Another, , the Supreme Court dealing with article 254 clauses (1) & (2) has held.-
There is no doubt or difficulty as to the low applicable. Art. 254 of the Constitution makes provision firstly, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict. Art. 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a Concurrent subject is ''repugnant'' to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in clause (1), clause (2) engrafts an exception, viz., that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a Concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent, with a previous Union law relating to a Concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in their applicability to that State only. The predominance of the State law may however be taken away if Parliament legislates under the Proviso to clause (2). The Proviso to Art. 254(2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the President''s assent. Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the ''same matter''. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant, to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together e.g., where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law under Art. 254(1). That being so, when Parliament stepped in and enacted the Central Amendment Act, it being a later law made by Parliament "with respect to the same matter", the West Bengal Amendment Act stood impliedly repealed.
At this juncture, it is relevant to state that Karnataka Lokayukta Act, 1984, preamble of which reads thus:-
Whereas, it is expedient to make provision for the appointment and functions of certain authorities for making enquiries into administrative action relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution taken by or on behalf of the Government of Karnataka or certain public authorities in the State of Karnataka (including any omission or commission in connection with or arising out of such action) in certain cases and for matters connected therewith or ancillary thereto" received the assent of the President on 16.01.1985 and brought into force with effect from 15.01.1986.
The Prevention of Corruption Act, 1988, preamble of which reads thus:-
An Act to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith was brought into force with effect from 09.09.1988.
As could be seen from the provisions of the Karnataka Lokayukta Act, 1984 and the provisions of Prevention of Corruption Act, 1988, there is no direct conflict between two Acts and both Acts do not hold the same field. The petitioner cannot, rely upon clause (2) of article 254 of the Constitution of India to contend that provisions of the Karnataka Lokayukta Act, 1984 (Karnataka Act No.4/1985) would override the provisions of Prevention of Corruption Act, 1988 (Central Act. No.49/1988).
The provisions of Prevention of Corruption Act, 1988 do not define locus standi of the complainant to initiate complaint/prosecution in relation to offences punishable under the provisions of Prevention of Corruption Act, 1988.
A Division Bench of this court in W.P.No.25574/2009 dated 08.10.2009, dealing with maintainability of complaint based upon the report of Lokayukta and initiation of complaint/prosecution when the report of Lokayukta is yet to be accepted by the competent authority has held:-
6.2) Of course, it is seriously contended by Mr.Vijayashankar, learned senior counsel appearing for the petitioner that it would be very unsafe for the respondents or for the jurisdictional Magistrate much less to this Court to act upon and/or to initiate, to investigate, to prosecute or to pass any orders based upon the Lokayukta Report which is yet to be accepted by the Government; or based upon the Satellite maps enclosed along with the Lokayukta report and relied upon by the respondents herein identifying the impugned areas as encroached areas by the petitioner, as such report or the maps cannot be a conclusive evidence against the petitioner as they were not parties to the Lokayukta proceedings nor they were given any notice or opportunity to file their objections to the Lokayukta report or the GPS sketches, while registering the impugned FIR dated 3.2.2009 and passing the order of seizure dated 3.2.2009.
6.3) We are, but, unable to appreciate that the Lokayukta report cannot, be a basis for initiating any lawful action against those who are involved in unlawful acts in an illegal manner. One should not forget that the office of the Lokayukta is held by a former Judge of the Apex Court. It is difficult to assume or presume that the said high authority would give a report without any material whatsoever. Therefore, we are unable to digest the contention that the Lokayukta report cannot be a basis for even to initiate an action against an illegal act.
6.6) When the Lokayukta finds fault against the executives for their failure to implement such laws to protect the environment and ecology, the petitioner projects the grievance against the executives for acting upon the Lokayukta report. But, under such circumstances, in our considered opinion, the executives should have a free hand to proceed with investigation further into the matter to do their duty conferred by law and by people, particularly when faced with money power and man-power. Otherwise, the respect of law and people would be lost.
The learned counsel for petitioner would further submit that provisions of Cr.P.C., are not applicable to the Karnataka Lokayukta Act, 1984, which is a special enactment.
Section 4 of Cr.P.C., reads thus:-
Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into tiled and otherwise dealt with according to the provision hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
Section 5 of Cr.P.C., reads thus:-
Saving - Nothing contained in this Code shall in the absence of a specific provision to the contrary, affect any special or local law any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
In a decision reported in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, , the Supreme Court has held:-
It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to court. Even for the most serious offence of murder, It was not disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statue creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision Numerous statutory provisions, can be referred to in support of this legal position such as (i) Sec. 187 A of Sea Customs Act. 1878 (ii) Sec. 97 of Gold Control Act. 1968 (iii) Sec. 6 of Import and Export Control Act, 1947 (iv) Sec. 271 and Sec. 279 of the Income Tax Act, 1961 (v) Sec. 61 of the Foreign Exchange Regulation Act, 1973 (vi) Sec. 621 of the Companies Act, 1956 and (vii) Sec. 77 of the Electricity Supply Act. This list is only illustrative and not exhaustive. While Sec. 190 of the Code of Criminal Procedure permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Secs. 195 to 199 of the Cr. P. C. These specific provisions clearly indicate that in the absence of any such statutory provision, a locusstandi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force (See Sec. 2(n), Cr. P. C.) is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendatta or vengeance. If such is the public policy underlying penal statutes who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind pencil statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straight jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception.
In the discussion made supra, I have stated that in order to set criminal law into motion for investigation of offences punishable u/s 13(1)(d) r/w section 13(2) of the Prevention of Corruption Act, 1988, locus-standi of the complainant/first informant has not been defined under the provisions of Prevention of Corruption Act, 1988.
The learned counsel for petitioner would submit that petitioner is alleged to have committed an offence punishable under Rule 59 of the Mineral Concession Rules, 1960. Therefore, offence for alleged violation of Rule 59 of the Mineral Concession Rules, 1960 can be taken cognizance only upon a complaint initiated by the officers authorised u/s 22 of the MMDR Act.
In order to appreciate this submission, it is necessary to refer to section 4 of the Prevention of Corruption Act, 1988 reading thus:-
Cases triable by Special Judges - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, or in any other law for the time being in force, the offences specified in sub-section (1) of section 3 shall be tried by special Judges only.
(2) Every offence specified in sub-section (1) of section 3 shall be tried by the special Judge for the area within which it was committed, or as the case may be, by the special Judge appointed for the case, or where there are more special Judges than one for such area by such one of them as may be specified in this behalf by the Central Government.
(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, be charged at the same trial.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, a Special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis.
Section 4(3) of the Prevention of Corruption Act, 1988 enables a Special Judge to try any offence, other than an offence specified in section 3, with which the accused may, under the Code of Criminal Procedure. 1973, be charged at the same trial.
Therefore, the submission of learned counsel for petitioner cannot be accepted.
u/s 4(2) Cr.P.C., all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
After going through, the provisions of the Karnataka Lokayukta Act, 1984, we find that the Karnataka Lokayukta Act, 1984 was not enacted to try the offences under special law. There is no provision in the Karnataka Lokayukta Act, 1984, which would exclude application of the provisions of Criminal Procedure Code.
Section 14of the Karnataka Lokayukta Act, 1984 which relates to initiation of prosecution, reads thus:-
Initiation of Prosecution. If after investigation into any complaint the Lokayukta or an Upalokayukta is satisfied that the public servant has committed any criminal offence and should be prosecuted in a court of law for such offence, then, he may pass an order to that effect and initiate prosecution of the public servant concerned and if prior sanction of any authority is required for such prosecution, then, notwithstanding anything contained in any law, such sanction shall be deemed to have been granted by the appropriate authority on the date of such order.
The word "complaint" in section 14is defined under rule 4 of the Karnataka Lokayukta Rules, 1985 as under:-
Complaint- (1) Every complaint shall be made in Form I, signed by the complainant and shall be supported by his affidavit in Form II duly sworn to before any Judicial Magistrate First Class, Notary Public, Oath Commissioner, Judicial Officers working on deputation in the Karnataka Lokayukta or any Gazetted Officer duly authorised to administer oaths.
(2) The complaint may be presented in person or sent by registered post to the Registrar. Such complaint shall be acknowledged by the Registrar specifying the name and designation of the public servant against whom such complaint is made.
The word "complainant" is defined under rule 2(b) of the Karnataka Lokayukta Rules, 1985 as under: -
2(b). Complainant" means a person who makes a complaint u/s 9of the Act.
Section 20of the Karnataka Lokayukta Act. 1984, which provides for prosecution for lodging false complaint, reads thus:-
Prosecution for false complaint-(1) Notwithstanding anything contained in this Act, whoever makes any false and frivolous or vexatious complaint under this Act shall, on conviction be punished with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees.
(2) No Court, except a Court of a Metropolitan Magistrate or a Judicial Magistrate First Class shall take cognizance of an offence under sub section (1).
(2-A) No such Court shall take cognizance of an offence under sub-section (1) except on a complaint made by a person against whom false, frivolous or vexatious complaint was made after obtaining the previous sanction of the Lokayukta or Upalokayukta, as the case may be.
(4) The prosecution in relation to an offence under sub section (1) shall be conducted by the Public Prosecutor and all expenses connected with such prosecution shall be borne by the State Government.
u/s 4 of the Prevention of Corruption Act, 1988, offences specified in section 3(1) of the Prevention of Corruption Act, 1988 shall be tried by a Special Judge appointed u/s 3(1) of the Prevention of Corruption Act. 1988.
Section 5 of the Prevention of Corruption Act, 1988 provides for procedure and powers of Special Judge.
Section 5 of the Prevention of Corruption Act, 1988 reads thus:-
Procedure and powers of Special Judge. -
(1) A special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by Magistrates.
(2) A Special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to, such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall, for the purposes of sub-sections (1) to (5) of Section 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be deemed to have been tendered u/s 307 of that Code.
(3) Save as provided in sub-section (1) or subsection (2), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge; and for the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor.
(4) In particular and without prejudice to the generality of the provisions contained in subsection (3), the provisions of Sections 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to the proceedings before a Special Judge and for the purposes of the said provisions, a Special Judge shall be deemed to be a Magistrate.
(5) A Special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted.
(6) A Special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ordinance 38 of 1944).
Section 19 of the Prevention of Corruption Act, 1988 states that no court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction.
Under section 22 of the Prevention of Corruption Act, 1988, the provisions of Cr.P.C., 1973 are made applicable, subject to certain modifications.
Section 22 of the Prevention of Corruption Act, 1988 reads thus:-.
The Code of Criminal Procedure, 1973 to apply subject to certain modifications. - The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall in their application to any proceeding in relation to an offence punishable under this Act have effect as if,
(a) in sub section (1) of Section 243, for the words "The accused shall then be called upon," the words "The accused shall then be required to give in writing at once or within such time as the court may allow, a list of the persons (if any) whom he proposes to examine as his witnesses and of the documents (if any) on which he proposes to rely and he shall then be called upon" had been substituted;
(b) In sub-section (2) of Section 309, after the third proviso, the following proviso had been inserted, namely: -
"Provided also that the proceeding shall not be adjourned or postponed merely on the ground that an application u/s 397 has been made by a party to the proceeding.";
(c) After sub-section (2) of Section 317, the following sub-section had been inserted, namely: -
"(3) Notwithstanding anything contained in subsection (1) or sub-section (2) the Judge may, if he thinks fit and for reasons to be recorded by him, proceed with inquiry or trial in the absence of the accused or his pleader and record the evidence of any witness subject to the right of the accused to recall the witness for cross-examination.'';
(d) In sub-section (1) of Section 397, before the Explanation the following proviso had been inserted, namely: -
"Provided that where the powers under this section are exercised by a court on an application made by a party to such proceedings, the court shall not ordinarily call for the record of the proceedings:-
(a) Without giving the other party an opportunity of showing cause why the record should not be called for; or
(b) If it is satisfied that an examination of the record of the proceedings may be made from the certified copies.
Under the provisions of Prevention of Corruption Act, 1988, the word "complainant" has not been defined. Even there is no definition of "first information report" and "first informant". u/s 17 of the Prevention of Corruption Act, 1988 certain police officers in the case of Delhi Special Police Establishment, in metropolitan areas and elsewhere are notified and they have been empowered to investigate into the matter, without the order of Magistrate and they are empowered to make any arrest, without a warrant ox without the order of a Metropolitan Magistrate or a Magistrate of the first class. Thus, offences are made cognizable.
The learned counsel for petitioner has relied on the provisions of sections 12& 14of the Karnataka Lokayukta Act, 1984 to contend that any person indicted in the report of Lokayukta should be prosecuted in the manner provided under the Karnataka Lokayukta act. 1984.
The learned counsel for petitioner would submit, pursuant to reference made u/s 7(2-A) of the Karnataka Lokayukta Act, 1984, Lokayukta has submitted a report u/s 12(3) of the Karnataka Lokayukta Act, 1984. The "competent authority" to act upon the report of Lokayukta has been defined u/s 2(4) of the Karnataka Lokayukta Act, 1934. Therefore, it is for the competent, authority to take action proposed by the Lokayukta, A citizen like the complainant cannot, initiate criminal prosecution when the report of Lokayukta is pending consideration before the State Government and the competent authority.
Section 12of the Karnataka Lokayukta Act, 1984 reads thus:-
Reports of Lokayukta, etc.- (1) If, after investigation of any action [xxx] involving a grievance has been made, the Lokayukta or an Upalokayukta is satisfied that such action has resulted in injustice or undue hardship to the complainant or to any other person, the Lokayukta or an Upalokayukta shall, by a report in writing, recommend to the competent authority concerned that such injustice or hardship shall be remedied or redressed in such manner and within such time as may be specified in the report.
(2) The competent authority to whom a report is sent under sub-section(1) shall, within one month of the expiry of the period specified in the report, intimate or cause to be intimated to or the Lokayukta or the Upalokayukta the action taken on the report.
(3) If, after investigation of any action [xxx] involving an allegation has been made, the Lokayukta or an Upalokayukta is satisfied that such allegation is substantiated either wholly or partly, he shall by report in writing communicate his findings and recommendations along with the relevant documents, materials and other evidence to the competent authority.
(4) The Competent authority shall examine the report, forwarded to it under sub-section (3) and within three months of the date of receipt of the report, intimate or cause to be intimated to the Lokayukta or the Upalokayukta the action taken or proposed to be taken on the basis of the report.
(5) If the Lokayukta or the Upalokayukta is satisfied with the action taken or proposed to be taken on his recommendations or findings referred to in sub-sections (1) and (3), he shall close the case under information to the complainant, the public servant and the competent authority concerned; but where he is not so satisfied and if he considers that the case so deserves, be may make a special report upon the case to the Governor and also inform the Competent Authority concerned and the Complainant.
(6) The Lokayukta shall present annually a consolidated report on the performance of his functions and that of the Upalokayukta under this Act to the Governor.
(7) On receipt of the special report under subsection (5), or the annual report under subsection (6), the Governor shall cause a copy thereof together with an explanatory memorandum to be laid before each House of the State Legislature.
(8) The Lokayukta or an Upalokayukta may at his discretion make available, from time to time, the substances of cases closed or otherwise disposed of by him which may appear to him to be of general, public, academic or professional interest in such manner and to such persons as he may deem appropriate.
Section 9of the Karnataka Lokayukta Act, 1984, relates to complaints and investigations, the procedure for lodging the complaint and the manner of preliminary enquiry and investigation into such complaints.
At this juncture, it is necessary to state that the provisions relating to investigation u/s 9relate to investigation into a complaint as defined under rule 4 of the Karnataka Lokayukta Rules, 1985. Section 9of the Karnataka Lokayukta Act, 1984 provides for investigation into any complaint involving any grievance or any allegation. The complaint referred in section 9 has been defined under Rule 4 of the Karnataka Lokayukta Rules, 1985.
u/s 2(8) of the Karnataka Lokayukta Act, 1984, the word "grievance" has been defined as hereunder: -
"2(8). "Grievance" means a claim by a person that he sustained injustice or undue hardship in consequence of mal-administration."
Under section 2(2) of the Karnataka Lokayukta Act, 1984, the word "Allegation" has been defined as hereunder:-
"(2) "Allegation" in relation to a public servant includes any affirmation that such public servant-
(a) has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person;
(b) was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives;
(c) is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant;
OR
(d) has failed to act in accordance with the norms of integrity and conduct which ought to be followed by public servants of the class to which he belongs:
Section 7(2-A) of the Karnataka Lokayukta Act, 1984 reads thus:-
7(2-A) Notwithstanding anything contained in sub-sections (1) and (2), the Lokayukta or an Upalokayukta may investigate any action taken by or with the general or specific approval of a public servant, if it is referred to him by the State Government.
In view of the definitions of "complaint", "grievance" and "allegation" as extracted supra, a reference u/s 7(2-A) of the Karnataka Lokayukta Act, 1984 cannot be considered as a complaint for investigation into a complaint involving any grievance or any allegation and the State Government which has made the reference u/s 7(2-A) of Karnataka Lokayukta Act cannot be termed as a complaint under Rule 4 of Karnataka Lokayukta Rules, 1985.
In the Lokayukta report dated 18.12.2008, at page 278, the Lokayukta has stated:-
Therefore, u/s 12(3) of the Lokayukta Act, I recommend initiation of disciplinary proceedings under the service rules applicable to them and so also appropriate proceedings shall be initiated'' against the said officers for recovery of the loss caused by them as detailed above.
Therefore, submission of learned counsel for petitioner that there cannot be initiation of complaint/prosecution unless competent authority takes action as recommended by the Lokayukta in terms of section 12(3) of the Karnataka Lokayukta Act, 1984 cannot be accepted.
The competent authority in terms of section 12(4)of the Karnataka Lokayukta Act, 1984, shall examine the report forwarded to it under sub-section (3) and within three months of the date of receipt of the report, intimate or cause to be intimated to the Lokayukta or the Upa-lokayukta the action taken or proposed to be taken on the basis of the report.
In the case on hand, the report of Lokayukta was submitted on 27.07.2011. The competent authority as defined under the Karnataka Lokayukta Act. 1984 has not taken any action.
The learned counsel for petitioner has produced a copy of letter dated 19.10.2011 stated to have been written by the Secretary to Government, Commerce and Industries Department, seeking advice of Lokayukta on his subsequent report dated 27.07.2011 and such an advice was pursuant to cabinet meeting held on 13.10.2011.
After going through the letter, I am of the opinion that advice on the questions formulated in the aforestated letter has no bearing on the report submitted by the Lokayukta against petitioner under the caption "ILLEGAL APPROVAL OF MINING LEASE IN FAVOUR OF SHREE SAI VENKATESHWARA MINERALS". Therefore, submission of learned counsel for petitioner that report of Lokayukta is pending consideration before the Government cannot be accepted.
The learned counsel for petitioner has relied on section 14of the Karnataka Lokayukta Act, 1984 to contend that the instant, complaint, is not maintainable. As already stated, section 14of the Karnataka Lokayukta Act. 1984 relates to investigation into any complaint as defined under Rule 4 of the Karnataka Lokayukta Rides, 1985 by the Lokayukta or Upa-lokayukta, if he is satisfied that the public servant has committed any criminal offence and should be prosecuted in a court of law for such offence, then, he may pass an order to that effect and initiate prosecution of the public servant concerned in terms of section 14of the Karnataka Lokayukta Act, 1984.
In the case on hand, report submitted by Lokayukta does not relate to investigation into any complaint as defined under Rule 4 of the Karnataka Lokayukta Rules, 1985. therefore, section 14of the Karnataka Lokayukta Act, 1984 does not preclude application of provisions of Code of Criminal Procedure, 1978 for initiation of complaint, inquiry and trial as provided u/s 4(2) of the Code of Criminal Procedure, 1973.
Therefore, 1 am of the considered opinion, there is no provision either under the Karnataka Lokayukta Act, 1984 or under the Prevention of Corruption act. 1988. which would exclude the application of Criminal Procedure Code, but for certain modifications stated under the Prevention of Corruption Act and such modifications do not exclude application of the provisions of Criminal Procedure Code, relating to other aspects.
In view of the above discussion, I hold that there is no legal bar to initiate complaint/prosecution or investigate into allegations made in the instant complaint. Point No.2 is answered accordingly.
The learned counsel for petitioner relying on a decision of the Supreme Court, reported in P. Sirajuddin, etc. Vs. State of Madras, etc., would submit that when serious offences are alleged against a public servant and first information report is registered against him, there must be a suitable preliminary enquiry into the allegations made against a public servant by a responsible officer.
This submission cannot be accepted for following reasons:-
It is not in dispute and cannot be disputed that the averments made against petitioner are reiterations of report submitted by Lokayukta as stated supra. Therefore, further preliminary investigation of the complaint by a responsible officer is not necessary.
The learned counsel for petitioner relying on the judgment of this court in W.P.No.22348/2009 dated 26.08.2009 would submit that mining lease granted in favour of M/s.Shree Sai Venkateshwara Minerals has been accepted by this court and this court has given directions to the State Government to pass revised order as to the exact availability of land and send recommendations to the Central Government.
This submission cannot be accepted for the following reasons:-
The question whether petitioner has committed any illegality in granting mining lease in favour of M/s.Shree Sai Venkateshwara Minerals was not a point for consideration in W.P.No.22348/2009 dated 26.08.2009.
In the said order, the State Government has been directed to pass revised order as to the exact availability of land granted in favour of M/s.Shree Sai Venkateshwara Minerals, which would demonstrate that petitioner had rot even asserted the exact availability of land before he granted mining lease in favour of M/s.Shree Sai Venkateshwara Minerals on 05.10.2007, reading as hereunder:
I have perused the records. The Mining Lease in respect of 550 acres of land in Jog, Thimmappagudi, Vhavihalli; NEB Range, Sandur Taluk, Bellary District is granted in favour of the following:
M/s.Sri Sai Venkateshwara Minerals
Sd/- H. D. Kumaraswamy, Chief Minister.
Therefore, submission of learned counsel for petitioner cannot be accepted.
The learned counsel for petitioner referring to provisions of section 13(1)(d) of the Prevention of Corruption Act. 1988 would submit that there are no allegations in the complaint that petitioner by corrupt or illegal means has obtained for himself or for any other person any valuable thing or pecuniary advantage. Therefore, if averments of complaint are accepted on their face value, they do not constitute offences u/s 13(1)(d) r/w section 13(2) of the Prevention of Corruption Act, 1988.
The learned counsel for petitioner referring to paragraph 18 of the complaint, would submit that allegation that ill-gotten money from all corrupt practices of petitioner have found a safe haven in the form of investments in the name of his brother whose wealth has gone up to Rs.70 crores, after his retirement as a Karnataka Administrative Service Officer in 2005 onwards, are totally untenable as the same averments are made in PCR No. 19/2011 (Crime No.47/2011) which is initiated by Sri S.N.Balakrishna against the brother of petitioner.
At this stage, this court cannot resolve these factual controversies. The averments of complaint will have to be accepted on their face value.
In a decision reported in Rajesh Bajaj Vs. State NCT of Delhi and Others, , the Supreme Court has held:-
It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary chat the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft, of even the basic facts which are absolutely necessary for making out the offence. In State of Haryana vs. Bhajan Lal (supra) this Court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder: (SCC p.379, para 103)
We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as 10 the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.
In the case on hand, the complaint allegations are reiterations of relevant portions of the report of Lokayukta. Therefore, it is not possible to hold that the allegations, which are reiterations of the relevant portions of the report of Lokayukta do not constitute offences alleged against petitioner.
At this juncture, it is necessary to state that "any other person" occurring u/s 13(1)(d)(ii) of the Prevention of Corruption Act, 1988 would also include immediate beneficiary. Therefore, submission of learned counsel for petitioner cannot be accepted.
In view of my findings on points 1 and 2, I pass the following:-
ORDER
The petition is accepted in part. The impugned order of reference is modified as following: -
I. The proceedings initiated in PCR No.27/2011 and consequent reference u/s 156(3) Cr.P.C., on the file of XXIII Addl.City Civil & Sessions Judge and Special Judge for Prevention of Corruption Act, Bangalore City, as they relate to investigation of offences alleged against petitioner based upon a news item published in "The Hindu" newspaper dated 15.07.2006, wherein it is alleged that petitioner had collected bribe of Rs. 150 crore from miners, are quashed.
II. The allegations of complaint and that petitioner had misused his official position to renew licence in favour of M/s.Janthakal Enterprises and the allegations that petitioner had exerted pressure on the Commissioner of Mines & Geology Department to issue permit to M/s.Janthakal Enterprises for lifting of old dump of 1 lakh metric tonne of low grade iron and manganese and the reference u/s 156(3) Cr.P.C., fur investigation into these allegations, are quashed.
III. The reference u/s 156(3) Cr.P.C., for investigation of offences alleged to have been committed by petitioner in the matter of approval of mining lease in favour of M/s.Shree Sai Venkateshwara Minerals is confirmed.