Sri Thimmappa vs State and Saibanna

Huluvadi G. Ramesh, J.—Petition is filed seeking to quash the order passed in PC 2/2011 on 8.12.2011 by the District & Sessions Judge, Yadgir referring the matter to the 1st respondent for investigation and also to quash the first information report registered in Crime No. 12/2011 in Yadgir Lokayukta Police Station. According to the petitioner, case has been registered and proceedings has been initiated against the petitioner in Crime No. 12/2011 of respondent police for the offence punishable under S. 13(1)(c)(d) and S. 13(2) of the Prevention of Corruption Act along with S. 468, 470, 406, 420 r/w S. 34, IPC. The said private complaint was registered in PC 2/2011. On the day of presentation of private complaint, the same was referred by the District & Sessions Judge, Yadgir to the police for investigation. In pursuance of the same, on referring of the complaint filed by the 2nd respondent, case came to be filed before the Lokayukta Police Station, Yadgir. Challenging the same, petitioner is before the Court on various grounds.

Heard the counsel representing the petitioner and the counsel representing the Lokayukta.

The procedure adopted by the said Court is under challenge on the ground, even prior to obtaining sanction against the petitioner for prosecution, the matter has been referred to Lokayukta for investigation which is against the law laid down by the Apex Court in the case of Anil Kumar and Others Vs. M.K. Aiyappa and Another, wherein the apex court has held, once it is noticed that there is no previous sanction as indicated in various judgments, the Magistrate cannot order investigation against a public servant while invoking powers under S. 156(3) of Cr.P.C. In view of the above, according to the petitioner''s counsel, proceedings initiated against the petitioner so far as referring the matter to Lokayukta police has to be quashed.

It transpires, on a news item reporting misappropriation of funds in fixing 206 gates for South Bank Canal of Upper Krishna Project, taking note of the same, 2nd respondent, a citizen complained of misappropriation to the Command Area Development Authority, Bheemrayanagudi to inquire into the matter pursuant to which, a report is submitted. According to the petitioner''s counsel, as per the report the specific overt act alleged is against accused 3 and 4 who have misappropriated by creating fake bills and without carrying approval and petitioner has been falsely maligned in the case.

The procedure adopted by the Sessions Judge, appears to be irregular and needs interference as is laid down by the Apex Court. However, the fact remains there is an allegation of misappropriation of funds allocated, of course, by creating fake bills while the work is not being carried out. In this regard, it has to be noted, the procedure adopted referring the matter to the Lokayukta at the threshold, on the private complaint without previous sanction appears to be like putting the cart before the horse. There may not be any impediment for the Lokayukta police to suo motu take into consideration and investigate the matter and take action, according to law against persons who are involved in the alleged misappropriation including misuse of funds and misuse of power. Accordingly, the order to investigate into the matter as per S. 156(3), Cr.P.C. is recalled. However, there may not be any impediment for the Lokayukta Police to independently investigate the matter and take action according to law. With the above exemption, petition for the present, is allowed. Counsel representing the Lokayukta is directed to bring to the notice of Lokayukta to initiate action to investigate into the matter and if it is found there is misuse or misappropriation of funds, to take action suo motu, according to law. Further, pursuant to the amount drawn for the project, if the work is not executed, to get the work done from the concerned and report compliance.