1. This is a petition, under Article 226/227 of the Constitution of India, for issuance of :-
(a) writ of mandamus or any other appropriate writ, order or direction declaring that the Lokayukt under the M.P. Lokayukt Evam Up-Lokayukt Adhiniyam, 1981 (hereinafter referred to as “the Adhiniyam”) isonly a recommendatory body and not a prosecuting agency.
(b) writ of certiorari or any other appropriate writ, order or direction quashing the entire proceedings held in file No.45/99 against the petitioner in the Lokayukt Sangathan as illegal and void ab initio.
(c) writ of certiorari or any other writ, order or direction quashing the order, passed by Lokayukt directing the SPE for registering a case and proceeding further, as illegal and contrary to the provisions of the Adhiniyam.
(d) writ of certiorari for quashing the FIR leading to registration of case as Crime No.37/07 at SPE Lokayukt, Bhopal in respect of the offences punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short “the PC Act”) on 16/10/2007.
2. However, during pendency of the petition, charge-sheet in respect of the offences has already been submitted against the petitioner U.K. Samal and the co-accused namely Narsingh Mandal and Prakash Chand Sethi, respectively the then Chairman and Deputy General Manager, (Store and Purchase) of M.P. State Road Transport Corporation (hereinafter referred to as “the Corporation”).
3. Background facts, not in dispute, may be summarized as under :-
(a) At the relevant point of time, the petitioner, an officer belonging to the Indian Administrative Service was posted as Managing Director of the Corporation. During his tenure as such Director from 28/2/1995 to 26/4/1997, an order for procurement of 100 Buses having chassis manufactured by W.P. No.16863/2007TELCO (Tata Engineering and Locomotive Co. Ltd.) was issued. This order comprised of two parts - one for purchase of the Chassis and the other for construction of motorbus bodies to be fitted thereon by Automobile Corporation Goa Limited (“ACGL” for short).
(b) Upon report published in a local newspaper namely M.P. Chronicle on 23/5/1996 under the heading “MPSRTC Rs.30 Crore Deal In Trouble”, the Lokayukt organization initiated an inquiry in the year 1996 without giving notice to the petitioner.
(c) On 12/7/2007, on behalf of the Lokayukt organization, notice (Annexure P/1) was issued to the petitioner under Section 10 read with S.12 of the Adhiniyam, to show cause against initiation of action for causing a loss to the extent of Rs.35.24 lacs to the MPSRTC by getting the Bus bodies constructed at ACGL Goa despite the fact that the Corporation had its own workshops at Gwalior and Indore.
(d) The petitioner submitted reply (Annexure P/5) and also made oral submissions before the then Lokayukt who, in turn, directed his legal adviser to prepare scrutiny report. In compliance, the legal adviser submitted the report proposing registration of a case against the petitioner in respect of the offences punishable under Section 13(1)(d) read with 13(2) of the PC Act. Upon the report, the Lokayukt passed the following order:-
“I have perused the note of LA-I. This is a fit case to be dealt with further by the SPE. All the papers be sent to the SPE for appropriate”
(e) In the light of the findings recorded by the legal adviser in his report that was endorsed by the Lokayukt with the aforesaid note, Rajendra Singh Chouhan posted as Dy. W.P. No.16863/2007Superintendent of Police in the SPE registered the FIR in question.
4. According to the petitioner :-
(i) since the Board of Directors of the Corporation did not approve the Chairman’s decision, the matter was referred to the State Government and ultimately only 28 Buses could be purchased, but it is wrong to suggest that by getting the bus bodies built by ACGL, the Corporation had incurred loss to the extent of Rs.35.24 lacs. By no stretch of imagination, bus bodies built by the Corporation could be treated at par with those built by ACGL in view of the fact that the technical specifications adopted by ACGL were much higher. This aspect of the matter was duly reflected in his reply to the show-cause notice. Further, the ACGL is a Public Limited Company having shares of TELCO, Goa Government, UTI and the public and is under the administrative control of the Telco.
(ii) Despite his repeated requests, copies of the documents forming basis of show-cause notice were not supplied. Moreover, during oral submissions made on 7/8/2007, he had requested the Lokayukt to send a technical team to Goa and Gwalior to assess and compare the quality of Bus body building work at the workshop located in these places. However, the Lokayukt did not accede to the request and directed the legal adviser to prepare a scrutiny note and the adviser without appreciating the technical aspects of the matter completely misread the facts.
W.P. No.16863/20075. In reply to the writ petition, respondent nos.1 and 2 have submitted that :-
(i) no notice was required to be given to the petitioner for initiation of the inquiry.
(ii) Immediately after initiation of the inquiry, relevant documents were called for from the petitioner and also from the Transport department. However, the same were not forwarded to the Lokayukt organization on the pretext that they were sent to the State Government. Thus, in absence of complete record, the inquiry remained pending and in the year 2004, the Transport department informed the Lokayukt that an inquiry was pending in the department also to find out whether any financial irregularity had been committed but no report or record was ever submitted to the Organization. In these circumstances, the matter remained pending only due to non co-operation of the concerned department and the notice could be issued to the petitioner only after a gap of 11 years.
(iii) Request for supply of photocopies of the documents was rightly rejected with the liberty to inspect the documents in the office of the organization.
(iv) No request for sending technical team to Goa and Gwalior was ever made.
(v) The Lokayukt had approved the scrutiny note prepared by the legal adviser only after considering the entire material available on record and the reply submitted by the petitioner.
W.P. No.16863/2007(vi) The legal advisers are members of Higher Judicial Services of M.P. and have been posted in the organization to assist the Lokayukt.
(vii) As the SPE, after due investigation into the matter, has already filed a charge-sheet arraigning the petitioner as one of the accused, the registration of the offence upon the opinion received from the Lokayukt organization cannot in any manner be said to be illegal.
In view of these facts, terming the petition as an infructuous one, the respondent nos. 1 and 2 have prayed for its dismissal.
6. The contentions raised by learned Senior Counsel appearing on behalf of the petitioner may be summed up as under :-
(i) Proceedings in the Lokayukt organization were contrary to the provisions of the Adhiniyam and hence were void ab initio.
(ii) Entire assumption of jurisdiction to take suo motu action was in breach of Section 7 of the Adhiniyam.
(iii) The inquiry that was conducted was hit by the bar of limitation as prescribed in Section 8(c) of the Adhiniyam.
(iv) The complete abdication of functions amounted to dereliction of duty on the part of the Lokayukt as all the substantive proceedings were conducted by Legal adviser.
(v) Lokayukt has only power of recommendation under Section 12 and 12(a) of the Adhiniyam and, therefore,, cannot pass any substantive order much less an order for registration of FIR as the power to initiate action on his recommendation vests in the competent authority.
In other words, Lokayukt is only a recommendatory W.P. No.16863/2007authority and not a prosecuting agency.
7. In the light of these submissions, learned Senior Counsel has further urged that (a) the order/endorsement of the Lokayukta dated 12.7.2007 is completely ultra vires the powers of the Lokayukt conferred by the Adhiniyam (b) all the proceedings rendered prior to and after the endorsement are void ab initio as being contrary to the corresponding provisions of the Adhiniyam and (c) the consequential action taken by respondent no.2 SPE is also illegal and nonest. To buttress the contention, reference has been made to the decision of the Apex Court in Babu Verghese v. Bar Council of Kerala (AIR 1999 SC 1281) wherein while considering the effect of non compliance with the statutory provisions, the Supreme Court had reaffirmed the principle that an act cannot be considered to have been done unless it was done in the manner prescribed under the statute.
8. Further, in support of the argument that under the garb of the power of superintendence of investigation the Lokayukt cannot direct an investigation by registration of FIR, reliance has been placed on the following observations made by the Supreme Court in the case of Vineet Narain v. Union of India, (1998) 1 SCC 226 :-
“There can be no doubt that the overall administration of the said force, i.e., CBI vests in the Central Government, which also includes, by virtue of Section 3, the power to specify the offences or class of offences which are to be investigated by it. The general superintendence over the functioning of the Department and specification of the offences which are to be investigated by the agency is not the same as and would not include within it the control of the initiation and the actual process of investigation, i.e., direction. Once the CBI is empowered to investigate an offence generally by its specification under Section 3, the process of investigation, including its initiation, is to be governed by the statutory provisions which provide for W.P. No.16863/2007the initiation and manner of investigation of the offence.
This is not an area which can be included within the meaning of “superintendence” in Section 4(1).”
9. In response, learned Special Public Prosecutor has submitted that the entire proceedings were conducted in accordance with the procedure prescribed under the Adhiniyam. According to him the provisions of the Adhiniyam have to be interpreted keeping in view the object and purpose thereof. Attention has also been invited to the fact that the Lokayukt had only marked the matter to the SPE Lokayukt for appropriate action and had not directed registration of FIR.
10. In order to appreciate the merits of rival contentions in a proper perspective, it would be necessary to advert to the legislative history, object, basic scheme and the provisions of the Adhiniyam relevant for the purpose of present discussion.
LEGISLATIVE HISTORY
Attempt to establish an independent Organization on the lines of "Ombudsman" started way back in mid 70’s after the State Administrative Reforms Commission recommended that the State Vigilance Commission, which was then functioning as an instrument to prevent/check corruption should be replaced by an organization with statutory base and powers. Examining the role and limitations of the State Vigilance Commission, the ARC had observed that in the absence of a constitutional or even statutory recognition of its position, the Vigilance Commission might act at best as a department of the Government to check corruption. In view of the above observations of the ARC and on the basis of various recommendations received from the Government of India, a bill was moved in the M.P. Legislative Assembly in the year 1975 which was sent for President’s assent after its passage by the Assembly. But W.P. No.16863/2007due to certain rethinking at the level of the Union Government the bill was returned to the State Government for reconsideration and the same was passed in April 1981 with certain modifications. The bill so passed became the Act after it received the Presidential assent in September 1981. The Lokayukt Organization was constituted under the Act in place of the Vigilance Commission.
OBJECT
“An Act to make provision for the appointment and function of certain authorities for the enquiry into the allegations against public servants and for matters connected therewith.”
SCHEME
It is to establish an organization, totally free from the executive influence, to deal with the growing menace of corruption in the public offices. Lokayukt, who should have been a former Judge of the Supreme Court or a Chief Justice of any High Court in India, is appointed under Section 3 of the Adhiniyam after consultation with the Chief Justice of this Court and the leader of the opposition in the legislative assembly and if there is no such leader, a person selected in this behalf by the members of the opposition in that House in such manner as the Speaker may direct. Section 7 enumerates the matters which may be enquired into by Lokayukt or Uplokayukt whereas Section 8 specifies the matters not subject to enquiry. Provisions relating to complaints have been encapsulated in Section 9 and Section 10 prescribes the procedure in respect of the enquiry. S.12 provides for communication of findings and recommendations by the Lokayukt to the competent authority in case the allegations are established to his satisfaction. Sub-section (3) of Section 13 empowers the Lokayukt to utilize the services of W.P. No.16863/2007other persons or agencies for the purpose of conducting enquiries under the Adhiniyam.
11. Learned Senior Counsel has strenuously contended that Section 7 of the Adhiniyam is exhaustive in relation to the powers of the Lokayukt and accordingly, there are only two sources viz. complaint and other information, that may form basis for initiation of an enquiry. He is further of the view that the word "other information" used in Section 7 cannot be liberally interpreted to mean conferral of a suo motu power to take cognizance and initiate action by the Lokayukt on its own motion. According to him, had it been the intention, nothing prevented the Legislature to say so expressly in Section 7 by further use of the words such as "on its own motion" or "suo motu", which are the expression of common usage. He has also contended that in absence of the specification of any other source, “other information” contemplated in Section 7 means the information described in Section 9(1)(a) of the Adhiniyam that reads as under -
9. Provisions relating to complaints :-
(1) Every complaint involving an allegation shall be made in such form as may be prescribed and shall be accompanied by a deposit of 25 rupees. The complainant shall also swear in affidavit in such form as may be prescribed before the Lokayukt or any officer authorised by the Lokayukt in this behalf.
“Provided that, in the case of a complaint against a public servant in relation to whom the Chief Minister is not the competent authority, neither the deposit nor affidavit shall be necessary ; Provided further that, if in the opinion of the Lokayukt or the Up-Lokayukt, it is necessary to have the deposit as well as the affidavit, he may direct that the complainant shall also make the deposit of twenty five rupees and submit an affidavit in the prescribed form before him or any W.P. No.16863/2007officer authorised by him.”
(1-a) Notwithstanding anything contained in this Act or any other law enacted by the State Legislature for the time being in force, any letter written to the Lokayukt by a person in police custody or in a Jail or in any asylum or other place for insane person, shall be forwarded to the Lokayukt unopened and without delay by the Police Officer or person in charge of such Jail, asylum or other place and the Lokayukt may, if satisfied that it is necessary so to do, treat such letter as a complaint made in accordance with the provisions of sub-section (1).”
12. Before proceeding further, it would be necessary to advert to the provisions of Section 7 of the Adhiniyam reproduced as under:- Section 7. Matters which may be enquired into by Lokayukt or Up-Lokayukt: –
Subject to the provision of this Act, on receiving complaint or other information:-
(i) the Lokayukt may proceed to enquire into an allegation made against a public servant in relation to whom the Chief Minister is the competent authority.
(ii) the Up-Lokayukt may proceed to enquire into an allegation made against any public, servant other than referred’ to in clause (i)
Provided that the Lokayukt may enquire into an allegation made against any public servant referred to in clause (ii).
Explanation:– For the purpose of this section the expressions “may proceed to enquire”, AND “May enquire,” include investigation by Police agency put at the disposal of Lokayukt and Up-Lokayukt in pursuance of sub-section (3) of section 13.
13. The explanation was added by M.P. Act No.20 of 1984 and simultaneously by way of M.P. Act No.19 of 1984, Section 4 of the Madhya Pradesh Special Police Establishment Act, 1947 was also W.P. No.16863/2007suitably amended to confer power of superintendence over the special police force on the Lokayukt. Thereafter, certain other amendments were made to Section 4 of the Act by M.P. Act 25 of 2003 w.e.f. 20.05.2003. The Section, as it stands now, reads -
“4.(1) The Superintendence of investigation by the Madhya Pradesh Special Police Establishment] shall vest in the Lokayukt appointed under section 3 of the Madhya Pradesh Lokayukt Evam Up-Lokayukt Adhiniyam, 1981 (No. 37 of 1981).
(1-a) Without prejudice to the generality of the power of Superintendence, the Lokayukt may call from the Director Special Police Establishment returns 2 [and may issue general directions for regulating practice and procedure of investigation to be adopted by the Special Police Establishment.”
(2) The administration of the said police establishment shall vest in the Director-General of Police, Madhya Pradesh who shall exercise in respect of that police force in the State as the State Government may specify in this behalf.
14. Obviously, the explanation was introduced to explain the meaning and effect of the expression “may proceed to enquire” and “may enquire” and to avoid any possible argument, which might be raised in regard to the construction of the main provision whereas corresponding amendments to Section 4 were made with a view to putting Special Police Establishment as the only police agency at the disposal of Lokayukt and Up-lokayukt to investigate into the matters which may be enquired into by them by virtue of the powers conferred under Section 7 of the Adhiniyam. As indicated already, the Lokayukt may inquire into an allegation made against any public servant referred to in clause (ii) of Section 7 upon receiving complaint or other information.
15. Use of the expression “other information” in Section 7 of the Adhiniyam is not an unusual one. Section 133 and Section 145 of the Code of Criminal Procedure (for brevity ‘the Code’) may be cited W.P. No.16863/2007as the provisions containing a similar expression. But, such an information cannot be equated with a complaint for making of which an exhaustive procedure has been provided under Section 9 of the Adhiniyam.
16. It is relevant to note, that in exercise of the power conferred under Section 17 of the Adhiniyam, the Governor has made Rules for the purpose of carrying into effect the provisions thereof. These Rules are known as Madhya Pradesh Lokayukta Evam UpLokayukta (Investigation) Rules, 1982 (“Rules” for short). A
conjoint reading of the provisions of the Adhiniyam, the Rules made thereunder and those of the Madhya Pradesh Special Police Establishment Act, 1947 would reveal that –
(i) “Allegation” has been defined in clause (b) of Section 2 as under:-
(b) “allegations” in relation to a public servant means any affirmation that such public servant, -
(i) has abused his position as such to obtain any gain or favour to himself or to any other person or to cause undue harm to any person.
(ii) was actuated in the discharge of his functions as such public servant by improper or corrupt motives.
(iii) is guilty of corruption; or
(iv) is in possession of pecuniary resources or property disproportionate to his known source of income and such pecuniary resources or property is held by the public servant personally or by any member of his family or by some other person on his behalf. (ii) Even though complaint has been defined under Rule 2(ii) of the Rules, yet the word “other information” has remained undefined.
W.P. No.16863/2007(iii) As defined in Rule 2(iv) of the Rules “Investigation” means any enquiry or other proceeding in connection with the complaint, but does not include a preliminary enquiry whereas Section 2 of the Act specifies that investigation to be conducted by the SPE shall have the same meaning as defined in Section 2(h) of the Code and thus, investigation would include all proceedings under the Code for the collection of evidence conducted by a Police Officer.
(Emphasis supplied)
(iv) By virtue of the provisions of sub-section (1) of Section 4 of the Act, the Superintendence of Investigation by the Madhya Pradesh SPE vests in the Lokayukt.
(v) Section 7 of the Adhiniyam contemplates procedure to be followed by the Lokayukt upon receiving “complaint” or “other information”.
17. It is one of the settled principles of construction that to ascertain the legislative intent, all the constituent parts of the statute are to be taken together and each word, phrase or sentence has to be considered in the light of general purpose and object of the Act. Accordingly, the words “other information” are clearly suggestive of the obvious inference that Lokayukt can act upon any information other than specified in Section 9(1)(a) of the Adhiniyam. In this view of the matter, the contention that “other information” means the information communicated to the Lokayukt by way of any letter, as contemplated in Section 9(1)(a), by a person in police custody or in Jail or in any asylum or other place for insane person, is not legally tenable.
W.P. No.16863/200718. Further, having regard to the purpose and object of the Adhiniyam, it is difficult to hold that the Lokayukt cannot exercise suo motu power of initiating an enquiry into the allegations made against a public servant. On the contrary, decline to exercise such a power may also raise a question as to the efficacy of the Lokayukt organization. As such, when it comes to the knowledge of the Lokayukt that a crime has been committed that too under the PC Act he has not only a duty but also a right under Section 7 of the Adhiniyam to inform the appropriate agency under his control and supervision to take appropriate action. Moreover, considering the qualification prescribed for his appointment, there is hardly any chance of misuse or abuse of such a power by the Lokayukt.
19. For these reasons, the contention that the Lokayukt has no jurisdiction to take suo motu action deserves to be rejected as apparently misconceived.
LEGAL STATUS OF THE LOKAYUKT
20. Learned Senior Counsel while making extensive reference to the provisions of Section 12 of the Adhiniyam has urged that the Lokayukt is only a recommendatory authority and not an investigating agency. For a ready reference, the provisions of Section 12 may be reproduced -
12.Report of Lokayukt and Up-Lokayukt :-
(1) If, after enquiry into the allegations, the Lokayukt or an Up-Lokayukt is satisfied that such allegation is established, he shall, by report in writing, communicate his findings and recommendation along with the relevant documents, materials and other evidence to the competent authority.
(2) The competent authority shall examine the report forwarded to it under sub-section (3) and intimate, within three months of the date of receipt of the W.P. No.16863/2007report, the Lokayukt or, as the case may be , the UpLokayukt, the action taken or proposed to be taken on the basis of the report.
(3) If the Lokayukt or Up-Lokayukt is satisfied with the action taken or proposed to be taken on his recommendations, he shall close the case under information to the complainant, the public servant and the competent authority concerned. In any other case, if he considers that the case so deserves, he may make a special report upon the case to the Governor and also inform the complainant concerned.
(4) The Lokayukt and the Up-Lokayukt shall present annually a consolidated report on the performance of their functions under this Act, to the Governor.
(5) If in any special report under sub-section (3) or the annual report under sub-section (4) any adverse comment is made against any public servant, such report shall also contain the substance of the defence adduced by such public servant and the comment made thereon by or on behalf of the State Government or department concerned of the State Government or the public authority concerned, as the case may be.
(6) On receipt of a special report under sub-section (3), or the annual report under sub-section (4), the Governor shall cause a copy there of together with an explanatory memorandum to be laid before the State Legislative Assembly.
(7) Subject to the provisions of section 10, the Lokayukt may at his discretion make available from time to time, the substance of cases closed or otherwise disposed of by him or by an Up-Lokayukt, 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.
21. Learned Senior Counsel, laying emphasis on the provision of sub-section (2) (supra), has further contended that power to initiate action against a delinquent public servant stands vested in the competent authority and not in the Lokayukt. Attention has also been invited to the definition of “action”, as given in clause (d) of Section 2 W.P. No.16863/2007of the Adhiniyam as under:-
“action” means action by way of prosecution or otherwise taken on the report of the Lokayukt or the UpLokayukt and includes failure to act, and all other expressions connecting action shall be construed accordingly;
22. However, from a bare reading of Section 7 of the Adhiniyam, it is clear that the Lokayukt has the power to get any matter contemplated therein investigated by the SPE, the police agency put at his disposal. The Apex Court in M.P. Special Police Establishment vs. State of M.P. (AIR 2005 SC 325), while observing that the Office of the Lokayukta was held by a former Judge of the Supreme Court, did not prefer to interfere with the direction given by the then Lokayukt, on the basis of the statements recorded by Shri P.P. Tiwari, the then legal adviser to register a case and ensure that investigation was conducted by an officer not below the rank of Superintendent of Police. In that case the Lokayukt, while dealing with the complaint, had decided to exercise powers conferred under Section 7 of the Adhiniyiam and had issued the aforesaid direction.
23. It is true that in the guise of purposive interpretation, the Court cannot re-write a statute but a purposive interpretation may permit a reading of the provision consistent with the purpose and object of the Act. For this, the following observations made by the Supreme Court in Chief Justice of A.P. v. L.V.A. Dixitulu (1979 (2) SCC 34) may usefully be quoted :-
"The primary principle of interpretation is that a constitutional or statutory provision should be construed "according to the intent of they that made it" (Coke). Normally, such intent is gathered from the language of the provision. If the language or the phraseology W.P. No.16863/2007employed by the legislation is precise and plain and thus by itself proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean or evocative or can reasonably bear meanings more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the Court to go beyond the arid literal confines of the provision and to call in aid other wellrecognised rules of construction, such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light, on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation.
24. Applying the principle to the aforesaid provisions of the Adhiniyam, the Rules made thereunder and the Act, the contention that the Lokayukt is only a recommendatory authority does not appear to be sound. He not only has the power to enquire into the allegations contained in a complaint or other information but also to refer the matter to the SPE at any stage of the enquiry. Although, the practice normally adopted by the SPE to carry out a preliminary enquiry to find out truth or otherwise of the allegations contained in the information is not unknown yet, no opinion on the question as to whether upon receipt of information by an officer-in-charge of the police station disclosing cognizable offence, it is imperative for him to register a case under Section 154 of the Code or a discretion lies with him to make some sort of preliminary enquiry before registering the same, would be necessary as it has already been referred to a larger Bench of the Apex Court (See Lalita Kumari vs. Govt. of U.P. (2008)14 SCC 337).
W.P. No.16863/200725. To conclude, the procedure prescribed in the Adhiniyam requiring the Lokayukt to communicate his findings and recommendations by way of a report to the competent authority is not the only option available to the Lokayukt. Further, he is not required to wait for a clearance of the competent authority for initiation of action proposed to be taken on the basis of a complaint or other information against a public servant.
26. Needless to say that the decision in Babu Verghese’s case (supra) has no application to the facts of the instant case wherein the action against the petitioner was taken in the manner prescribed under the statute.
27. Coming to the facts of the case, learned Senior Counsel has submitted that the Lokayukt after hearing the arguments in the presence of his legal adviser had directed him to prepare a scrutiny report and thereafter without examining the record had accepted the findings recorded by the legal adviser in his scrutiny report that was running in several pages. According to him, virtually for all legal and practical purpose, functions of enquiry, in which appreciation of facts and sifting of evidence was required, have been performed by the Legal Advisor and not by the Lokayukta and due to this kind of procedure and abdication of functions by the Lokayukta, the enquiry ceases to be an enquiry under the Adhiniyam. In his opinion, enquiry at every stage had to be conducted by the Lokayukta himself, particularly in view of the statutory and quasi judicial character of the functions and powers vested in him. He is further of the view that Section 13 of the Adhiniyam only empowers the Lokayukta to utilize services of a Legal adviser but does not make any provision for delegation of powers and functions of conducting an enquiry.
However, this argument is also wholly devoid of merit in view of clause (ii) of Section 13(3) of the Adhiniyam, as reproduced below. W.P. No.16863/200713.Staff of Lokayukt and Up-Lokayukt:-
(1) …..
(2)……
(3) Without prejudice to the provisions of sub-section (1) the Lokayukt or an Up-Lokayukt may, for the purpose of conducting enquiries under this Act, utilize the service of :-
(i) [Divisional Vigilance Committee] constituted under Section 13-A.
(ii) any officer or investigation agency of the State or Central Government, with the concurrence of that Government, or
(iii) any other person or agency.
(4) ……
[Emphasis supplied]
28. As a general rule of law any person is entitled, though not always bound, to lay before a police officer information as to any criminal offence, which he has reasonable and probable cause to believe, has been committed with a view to ensuring an appropriate legal action. In the present case, the office of Lokayukt was held by a former Chief Justice of High Court who after taking into consideration the scrutiny report submitted by the legal adviser, had only endorsed the findings to the SPE for an appropriate action.
29. It is true that the registration of FIR was not preceded by a preliminary enquiry by the SPE but the object of such an enquiry would have been limited to ascertain whether any cognizable offence has been committed. Further, the fact of the matter is that the Lokayukt had not specifically directed the SPE to register a case against the petitioner and, therefore, the observations made in Vineet Narain’s case (Supra) are of no avail to the petitioner.
30. Under Section 154 of the Code, the word ‘information’ is not qualified by any adjective meaning thereby that information preceding a process not fully in conformity with the relevant legal provisions can also form basis of the first information report. For this, reference may be made to the decision of the Apex Court in W.P. No.16863/2007Parkash Singh Badal v. State of Punjab AIR 2007 SC 1274 wherein it has been observed -
“Section 154(1) regulates the manner of recording the first information report relating to the commission of a cognizable offence ....
At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154 (1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157 thereof ….
It has to be noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the nonqualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case …..
An overall reading of all the Codes makes it clear that the condition which is sine-qua-non for recording a First Information Report is that there must be an information and that information must disclose a cognizable offence.” dd
PLEA AS TO LIMITATION -
31. In this regard, learned Senior Counsel has urged that no action could be initiated against the petitioner in view of the embargo placed on the power of Lokayukt by clause (c) of Section 8 of the Adhiniyam. The Section is couched in the following terms :-
8. Matter not subject to enquiry:– The Lokayukt or an W.P. No.16863/2007Up-Lokayukt shall not inquire into any matter :-
(a) in respect of which a formal and public inquiry has been ordered under the Public Servants Inquiries Act, 1950 ( No. 37 of 1950) :
(b) which has been referred for inquiry under the Commission of Inquiry Act, 1952 (No. 60 of 1952) : or (c ) relating to an allegation against a public servant, if the complaint is made after expiration of a period of five years from the date on which the conduct complained against is alleged to have been committed.
32. As indicated already, the enquiry against the petitioner had commenced in the year 1996 but the show-cause notice (Annexure P/1) under Section 10 read with Section 12 of the Adhiniyam was issued on 12/7/2007. However, no period of limitation is provided under Chapter XXXVI of the Code or the PC Act for taking cognizance of the offence under that Act. Even otherwise, the offences relating to wrongful loss to the public exchequer, by their very nature do not generally come to light as soon as they are committed and their cognizance is often preceded by a time consuming investigation. In this view of the matter, the contention that an enquiry could not be continued further against the petitioner after a lapse of 11 years also has no merit or substance. 33. In view of the aforesaid discussion, we are of the considered opinion that none of the contentions assailing legality and propriety of the proceedings initiated against the petitioner deserves acceptance. As an obvious consequence, the petitioner is not entitled to any one of the reliefs as claimed for.
34. The writ petition, therefore, stands dismissed. Petition dismissed.