Mr M Srinivas S/O Late Mr Muniswamappa Vs. The State of Karnataka - Court Judgment

SooperKanoon Citationsooperkanoon.com/1195927
CourtKarnataka High Court
Decided OnOct-14-2014
Case NumberCRL.P 6947/2012
JudgeK.N.PHANEENDRA
AppellantMr M Srinivas S/O Late Mr Muniswamappa
RespondentThe State of Karnataka
Excerpt:
® in the high court of karnataka, bangalore dated this the14h october, 2014 :before: the hon’ble mr.justice k.n. phaneendra criminal petition no.6947/2012 between mr.m. srinivas, s/o late mr. muniswamappa, aged71years, member of legislative assembly, govt. of karnataka, rajarajeshwari nagar assembly, constituency, residing at no8 4th cross, vii block west, jayanagar, bangalore- 560 070. ... petitioner (by sri. ashok haranahalli, sr.adv. for sri. j.c.kumar, adv.) and1 the state of karnataka, by lokayukta police, city division, m.s.building, dr. ambedkar veedhi, bangalore- 560 001.2. mr. dinesh kallahalli, s/o mr. ramaiah, aged34years, resident of kallahalli, 2 village and post, kanakapura taluk, ramanagara district. ... respondents (by sri.venkatesh p.dalwai spl. pp for r1) this crl.p.....
Judgment:

® IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE14h OCTOBER, 2014 :BEFORE: THE HON’BLE MR.JUSTICE K.N. PHANEENDRA CRIMINAL PETITION NO.6947/2012 BETWEEN MR.M. SRINIVAS, S/O LATE MR. MUNISWAMAPPA, AGED71YEARS, MEMBER OF LEGISLATIVE ASSEMBLY, GOVT. OF KARNATAKA, RAJARAJESHWARI NAGAR ASSEMBLY, CONSTITUENCY, RESIDING AT NO8 4TH CROSS, VII BLOCK WEST, JAYANAGAR, BANGALORE- 560 070. ... PETITIONER (BY SRI. ASHOK HARANAHALLI, SR.ADV. FOR SRI. J.C.KUMAR, ADV.) AND1 THE STATE OF KARNATAKA, BY LOKAYUKTA POLICE, CITY DIVISION, M.S.BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE- 560 001.

2. MR. DINESH KALLAHALLI, S/O MR. RAMAIAH, AGED34YEARS, RESIDENT OF KALLAHALLI, 2 VILLAGE AND POST, KANAKAPURA TALUK, RAMANAGARA DISTRICT. ... RESPONDENTS (BY SRI.VENKATESH P.DALWAI SPL. PP FOR R1) THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH THE PRIVATE COMPLAINT IN P.C.R. NO.17/2012 FILED BY THE COMPLAINANT/RESPONDENT NO.2 REGISTERED ON THE FILE OF THE XXIII ADDL. CITY CIVIL & SPL. JUDGE UNDER PREVENTION OF CORRUPTION ACT, BANGALORE URBAN DISTRICT, BANGALORE. ETC.. THIS CRIMINAL PETITION AFTER HEARING, HAVING BEEN RESERVED FOR

ORDER

S ON179.2014, COMING ON FOR ‘PRONOUNCEMENT OF

ORDER

’ THIS DAY, THE COURT PASSED THE FOLLOWING:

ORDER

This petition is filed seeking quashing of the Private Complaint registered in PCR No.17/2012 lodged by the second respondent herein and consequent referring of the matter u/s.156(3) of Cr.PC for investigation and registration of Crime No.37/2012 by Lokayuktha Police, for the offences punishable under Section 13(1)(b)(d)(I)(II)(III)(e) and 13(2) of the 3 Prevention of Corruption Act, 1988 and also u/s. 120B, 420, 465, 468 of the IPC.

2. The brief factual matrix as could be seen from the records are that: The second respondent herein lodged a Private Complaint against the petitioner herein and others claiming himself to be a social worker running an organization by name ‘Nagarika Hakku Horata Samithi”, making allegations that the petitioner herein (A1) is a sitting MLA of Rajarajeshwari Nagar Assembly Constituency and other accused persons i.e. A2 is his wife, A3 is the son of A1, who is the Corporator of Ward No.73, A4 is the daughter-in-law of A1. It is contended that the petitioner being an MLA and also former Member of Parliament has abused his office and made pecuniary gains and acquired lot of property dis- proportionate to his known source of income with the active support and connivance of the other accused 4 persons. The petitioner/A1 has also given statements before the Karnataka Lokayuktha and Election Commissioner, which do not tally with his properties acquired and known source of income. It is submitted that the petitioner/A1 was born in an average agricultural family, he was elected for Uttarahalli Constituency for the first time in the year 1983 from Bharatiya Janatha Party and subsequently also, he became MLA for the periods 1985 and 1994. In the year 2008, he has been elected for the Legislative Assembly from the Rajarajeshwari Nagar Constituency. The petitioner/A1 served in various positions in his political career and embellished and misappropriated the Government money by abusing and mis-using the powers and thereby amassed wealth dis-proportionate to his known source of income. It is further alleged by giving various details of the properties acquired by the petitioner/A1 that, he cheated the Government and the people by concocting and creating and forging certain 5 documents. Making all those allegations, the complainant has invoked the jurisdiction of the Special Court, Bangalore Urban District, by way of filing a Private Complaint u/s.200 of Cr.PC.

3. On presentation of the complaint, the learned XXIII Addl. City Civil and Special Judge for Prevention of Corruption Act at Bangalore, registered a Case in PCR No.17/2012 against the petitioner and other three persons and referred the complaint to the Superintendent of Police, Lokayuktha, Bangalore Urban, by an Order dated 5.4.2012 for investigation u/s.156(3) of Cr.PC and to report by 2.5.2012. The order sheet produced before this Court reveals that the report is not yet submitted and the Court is awaiting for the report. The Lokayuktha Police on receipt of the Private Complaint, registered a case in Crime No.37/2012 and investigating the matter. At this juncture, the present petition is filed. 6 4. Sri Ashok Harnahalli, learned Senior Counsel for the petitioner strenuously contended before this Court that the complaint filed by the respondent No.2 is not maintainable as the same is not supported by a valid sanction order issued by the competent authority. He submits that in view of the latest pronouncement of the Hon'ble Apex Court in the case of Anil Kumar Vs. M.K. Aiyappa reported in 2013(10) SCC705 the complaint itself is not maintainable without a valid sanction Order by the competent authority. He contended that, for maintaining the complaint or referring the same to the Police for investigation u/s.156(3) of Cr.PC, even at the pre-cognizance stage, sanction is an absolute legal requirement. Though there are some other grounds to be urged, the learned counsel for the petitioner did not urge all those grounds, but mainly concentrated on the above said sole ground. 7 5. Sri Venkatesh Dalwai, learned Special Public Prosecutor for the first respondent – Lokayuktha Police, has contended that ‘Order of sanction’ is not required at pre-cognizance stage as the Court has not taken cognizance at the time of referring the matter to the jurisdictional Police.

6. He further contends that, the provisions of Section 19 of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘PC Act’ for short) are not applicable to MLAs. and MPs. The question of sanction has to be considered by the Court only at the time of taking cognizance. It is contended that if the provisions of Section 19(3) of the PC Act, is properly understood and read, it creates an embargo on the Court to interfere with the proceedings of the Trial Court and also the investigation. 8 7. The learned counsel for the parties have relied upon several rulings in this regard which I am going to refer them little later, at appropriate stages.

8. The second respondent herein – the complainant before the Trial Court, also appeared before the court, and filed statement of objections. They are actually on the same tune and tenor of the objections raised by the learned Spl. PP. Therefore, there is no need for the Court to independently deal with the objections.

9. Now, let me consider the grounds urged before this Court by both the respondents.

10. The first and foremost objection raised by the respondent No.1 is that the petition itself is not maintainable because the question of sanction order does not arise so far as the MLAs. and MPs. are concerned. The learned Spl. PP has relied upon the rulings of the Hon'ble Apex Court in the following cases:

9. (1) 2011 AIR SCW3955between Abhay Singh Chautala Vs. C.B.I., and (2) (2007) 1 SCC between Parkash Singh Badal and another Vs. State of Punjab and others. In the first ruling, the Hon'ble Apex Court has held that– “Sanction to prosecute – Necessity – Accused Public servant abusing different office than one held at the time of cognizance - sanction to prosecute is not necessary.” In the second ruling it has held that – “Sanction for prosecution in case of public servant is no longer holding the same post/office during the currency of which the alleged offence was committed.” The Apex court has further observed that – “There is no need to obtain sanction for prosecution of a person alleged to have committed offences in the capacity of a Public 10 servant, where cognizance of such offences is taken after he had already ceased to hold the office in question, though he may continue to be a Public servant in any other capacity at the time of taking cognizance – Section 19(1) held to be not applicable.” Hence, it is clear that there is no need to obtain sanction to prosecute when accused/public servant at the time of service is not holding office which alleged to have been abused. In the present case, it is the allegations of the complainant throughout, that; petitioner was served the public at large as a people representative, MP or MLA. It is specifically averred that even on the date of lodging of the complaint, he was the sitting MLA of Rajarajeshwari Nagar Constituency. I can understand, if a Government servant otherwise than a people representative serves the different departments at different times and ultimately at the time of taking cognizance, if he was not holding the public office, then ‘order of sanction’ to 11 prosecute is not necessary. But in this particular case, the period for which he abused the office, as stated in the complaint, is from 1983 upto the date of lodging of the complaint and even as on the date of the lodging of the complaint, the petitioner was a public servant. Therefore, this ground raised is not tenable and the said rulings are not applicable.

11. The learned counsel for the petitioner also raised a question that provision of Section 19 of the Prevention of Corruption Act are not applicable to MLAs. and MPs. This is cleared from more than several rulings that MLAs. and MPs. are also Public servants. The Hon'ble Apex Court in a decision reported in (1998) 4 SCC626between P.V. Narasimharao Vs. State (CBI/SPE), held in detail at paragraphs 61, 67, 73, 82 and 85. The sum and substance of the said paragraph is: – 12 “A Member of Parliament would, therefore, fall within the ambit of Sub-clause (viii) of Clause (c) of Section 2 of the 1988 Act. The words used in sub clause (viii) of clause (c) of Section 2 of the Act are clear and un- ambiguous and they cannot be cut down on the basis of the statement made by the Minister while piloting the Bill in the parliament. Thus, a Member of Parliament is a Public servant for the purpose of the 1988 Act.” Even at head note H of the said decision, it is further made clear that - “MP is a Public servant but there is no authority competent to remove him from his office. Merely because there is no authority to remove an MP from his office, he does not cease to be a Public servant for the purpose of the Act.” 12. It is further clarified in a decision between Dr. Subramanian Swamy and Dr. Manmohan Singh and another, reported in 2012 AIR SCW1249 wherein the 13 Hon'ble Apex Court has formulated some guidelines as to how the ‘sanction order’ has to be obtained from the competent authority, so far as it relates to the MPs. and MLAs. In the same paragraph, it is also suggested that a suitable amendment in law has to be made by Parliament in that regard, before filing of the charge sheet by the prosecuting agency, in respect of an offence punishable u/s.7, 10, 11, 13 and 15 of the Act, against an MLA or MP in a criminal court, the prosecuting agency shall obtain permission of the Chairman of the Rajyasabha and Speaker of the Loksabha, as the case may be. From understanding the above said ruling, it is crystal clear that the same principle is also applicable to MLAs. who stand on par with the MPs. so far it relates to Legislative Assemblies are concerned. Hence, the said ground is not tenable before this court.

13. The third important point raised is that Section 19 of the Prevention of Corruption Act prevents 14 any Court from interfering with the proceedings before the Trial Court. He has also quoted the relevant portions in the decision of Sri P.V. Narasimha Rao’s case. On perusal of the relevant portions, the sum and substance of the same are as follows: “The rigor of the prohibition contained in sub-Section (1) is now reduced by sub-Section (3) of Section 19 because under clause (a) of sub-Section (3) it is provided that no finding, sentence or Order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. It is argued that this would show that the requirement of sanction under sub Section (1) of Section 19 is a matter relating to the procedure and the absence of sanction does not go to the root of the jurisdiction of the court. 15 Therefore, it is contended that this particular aspect has not been considered in Aiyappa’s case by the Hon'ble Apex Court. The judgment in P.V. Narasimharao’s case is rendered by a larger bench, compared to the Aiyappa’s case. Therefore, if this principle is applied, the court cannot interfere with the reference Order made by the Trial Court u/s.156(3) of Cr.PC for investigation.

14. I am conscious of the principle that whenever the larger bench rulings of the apex court is available, the court should give preference to the decision of the larger bench when compared to rulings of the division bench or a single bench and the courts shall rely upon the principles laid down by the larger benches, unless the court was of the opinion that the views expressed by the larger benches were not applicable to the facts of that particular case, it should say so, by giving reasons supporting its points of view. 16 This view is also supported by a decision of the Hon'ble Apex Court in the case of Union of India and another Vs. K.S. Subramanian(Beg.J.) reported in AIR1976SC2433 wherein paragraph 12 reads thus - “12. We do not think that the difficulty before the High Court could be resolved by it by following what it considered to be the view of a Division Bench of this Court in two cases and by merely quoting the views expressed by larger benches of this Court and then observing that these were insufficient for deciding the point before the High Court. It is true that, in each of the cases cited before the High Court observations of this Court occur in a context different from that of the case before us. But, we do not think that the High Court acted correctly in skirting the views expressed by larger benches of this Court in the manner in which it had done this. The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by larger benches of this Court in preference to those expressed by 17 smaller benches of the Court. That is the practice followed by this Court itself. The practice has now crystallized into a rule of law declared by this Court itself. The practice has now crystallized into a rule of law declared by this Court. If, however, the High Court was of opinion that the views expressed by larger benches of this Court were not applicable to the facts of the instant case it should have said so giving reasons supporting its point of view.” The Hon'ble Apex Court in Aiyappa’s case cited supra, after considering in detail its earlier decisions, rendered a lengthy and considered judgment in P.V.Narasimha Rao’s case.

15. Bearing in mind the principles laid down in P.V. Narasimharao’s case, now let me consider Aiyappa’s case relied upon by the learned counsel for the petitioner. 18 16. Aiyappa’s case cited supra is a land mark judgment rendered by the Hon'ble Apex Court, wherein the Hon'ble Apex Court has mainly dealt with the provisions of Section 19(1) and (3) of Prevention of Corruption Act and interpreted the said provisions along with Section 156(3) of Cr.PC and also by interpreting the word ‘cognizance’, the Hon’ble Apex Court held in the following manner: “Public accountability, vigilance and Prevention of Corruption – Prevention of Corruption Act 1988 Section 19(1) – (3). Sanction under Section 19(1) is a pre- condition for ordering investigation against a Public servant u/s.156(3) Cr.PC. even at pre- cognizance stage. Non-effect of absence of sanction in some circumstances u/s.19(3). Held it does not mean that requirement of sanction is mandatory. Private complaint against Public servant u/s.200 Cr.PC, reference of the complaint by the Magistrate u/s.156(3) Cr.PC. for investigation by Police. No sanction Order with the complaint court 19 held that the reference is not valid. Investigation u/s.156(3) Cr.PC. cannot be ordered without previous sanction u/s.19(1) of PC Act, 1988 (Emphasis supplied) 17. The Hon'ble Apex Court after considering several decisions including in P.V. Narasimharao’s case and Subramanian Swamy’s case and also considering the other important cases has ultimately by interpreting the word ‘cognizance’ held that even at the pre- cognizance stage sanction order is necessary. It is worth to refer relevant paragraph Nos.9, 11, 12, 13, 15, 20, 21 and 22 of the Aiyappa’s case cited above which reads thus: “9. Shri Uday U. Lalit, learned senior counsel appearing for the respondents, on the other hand, submitted that the question raised in this case is no more res integra. Reference was made to the judgment of this Court in Subramanian Swamy v. Manmohan 20 Singh. The learned senior counsel submitted that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duties. The purpose of obtaining sanction is to see that the public servant be not unnecessarily harassed on a complaint, failing which it would not be possible for a public servant to discharge his duties without fear and favour. The learned senior counsel also placed reliance on the judgment of this Court in Maksud Saiyed v. State of Gujarat and Others (2008) 5 SCC668and submitted that the requirement of application of mind by the Magistrate before exercising jurisdiction under Section 156(3) Cr.P.C. is of paramount importance. Learned senior counsel submitted that the requirement of sanction is a prerequisite even for presenting a private complaint under Section 200 Cr.P.C. and the High Court has rightly quashed the proceedings and the complaint made against the respondents. 21 11. The scope of Section 156(3) Cr.PC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case (supra) examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We 22 have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.

12. We will now examine whether the order directing investigation under Section 156(3) Cr.P.C. would amount to taking cognizance of the offence, since a contention was raised that the expression “cognizance” appearing in Section 19(1) of the PC Act will have to be construed as post-cognizance stage, not pre-cognizance stage and, therefore, the requirement of sanction does not arise prior to taking cognizance of the offences punishable under the provisions of the PC Act.

13. The expression “cognizance” which appears in Section 197 Cr.P.C. came up for consideration before a three-Judge Bench of this Court in State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC372 and this Court expressed the following view:

23. “6. ......10........And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, ‘no court shall take cognizance of such offence except with the previous sanction’. Use of the words ‘no’ and ‘shall’ makes it abundantly clear that the bar on the exercise of power of 24 the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black’s Law Dictionary the word ‘cognizance’ means ‘jurisdiction’ or ‘the exercise of jurisdiction’ or ‘power to try and determine causes’. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.

15. The judgments referred to hereinabove clearly indicate that the word ‘cognizance’ has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation u/s.156(3) Cr.PC, obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post cognizance stage. When a 25 Special Judge takes cognizance of the offence on a complaint presented u/s.200 Cr.PC and the next step to be taken is to follow up u/s.202 Cr.PC. Consequently, a Special Judge referring the case for investigation u/s.156(3) is at pre-cognizance stage.

20. Section 19(3) of the PC Act also has some relevance; the operative portion of the same is extracted hereunder: “19(3) – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) no finding, sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby; (b) – (c). xxxxx 21. Learned Senior counsel appearing for the appellants raised the contention that 26 the requirement of sanction is only procedural in nature and hence, directory or else Section 19(3) would be rendered otiose. We find it difficult to accept that contention. Sub-section (3) of Section 19 has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (supra).

22. Further, this Court in Army Headquarters Vs. CBI opined as follows:

27. “Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him….. If the law requires sanction and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio…..” 18. In view of the detailed discussions by the Hon'ble Apex Court in the decisions cited supra, it is crystal clear that as soon as complaint is lodged, if the learned Magistrate go through the contents of the complaint in order to proceed and refer the matter to the Police for investigation u/s.156(3) of Cr.PC or to take any other step as contemplated u/s.200 of Cr.PC., 28 it is deemed that he has taken cognizance of the contents of the complaint and came to the conclusion that it is a fit case either to refer it to the Police for investigation or to be inquired into by the Court itself. Therefore, the court held that even for the purpose of lodging a Private Complaint, order of sanction is an absolute legal requirement to prosecute u/s.19(1) of the PC Act.

19. This ruling of the Hon'ble Apex Court is fully supported by the rulings of the Apex Court in Dr. Subramanyaswamy’s case, reported in 2012 AIR SCW1249at paragraphs 20 to 22 discussed in detail regarding the question raised whether sanction order is required only at the time of taking cognizance. The Hon'ble Apex Court after relying upon several rulings in RR Chari Vs. State of UP reported in AIR1951SC207 Mohammad Kalid’s case (AIR1995SC785, in pastur T Raju’s case AIR2006SC2825 Kalimuthu’s case AIR292005 SC2257 Rajkumar Jain’s case 1998 AIR SC2985 ultimately held that taking cognizance of the offence is not the same thing as issuance of process. Cognizance is deemed to have been taken place at the initial stage itself, when the Magistrate applies his judicial mind to the facts mentioned in the complaint or to a Police report or upon information received from any other person that an offence has been committed. The issuance of process is a subsequent stage, when after considering the material placed before the Court it decides to proceed against an offender against whom a prima facie case is made out, either referring the case for investigation or proceeding further under Section 200 to 204 of Cr.P.C.

20. In view of the above said two decisions, it is crystal clear that as soon as the complaint is filed, the learned Magistrate has to decide either to refer the case to the Police for investigation u/s.156(3) of Cr.PC or to 30 inquire into the matter himself. In either of the cases, the learned Magistrate has to go through the contents of the complaint and annexures thereon to the complaint, in order to convince itself that the complainant has made out a case for further action. Therefore, in this context, in Aiyappa’s case, the court held that order of sanction is an absolute requirement even prior to referring the case to the Police for investigation.

21. Now, let me come back to the judgment rendered in P.V. Narasimharao’s case, wherein at paragraph 95, the Hon'ble Apex Court has observed in the following manner: “95. xxxx……This means that when there is an authority competent to remove a public servant and to grant sanction for his prosecution under Section 19(1) of the 1988 Act the requirement of sanction precludes a court from taking cognizance of the offences mentioned in Section 19(1) against him in the absence of such sanction, but if there is no 31 authority competent to remove a public servant and to grant sanction for his prosecution under Section 19(1) there is no limitation on the power of the court to take cognizance under Section 190 Cr.P.C of the offences mentioned in Section 19(1) of the 1988 Act. The requirement of sanction under Section 19(1) is intended as a safeguard against criminal prosecution of a public servant on the basis of malicious or frivolous allegations by the interested persons. The object underlying the said requirement is not to condone the commission of an offence by a public servant. The inapplicability of the provisions of Section 19(1) to a public servant would only mean that the intended safeguard was not intended to be made available to him. The rigour of the prohibition contained in sub-section (1) is now reduced by sub-section (3) of section 19 because under clause (a) of sub-section (3) it is provided that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal; confirmation or revision on the ground of absence of, or any error, omission or 32 irregularity in the sanction required under sub-section (1) unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. This would show that the requirement of sanction under sub-section(1) of Section 19 is a matter relating to the procedure and the absence of the sanction does not go to the root of the jurisdiction of the court. It must, therefore, be held that merely because there is no authority which is competent to remove a public servant and to grant sanction for his prosecution under Section 19(1) it cannot be said that a Member of Parliament is outside the purview of the 1988 Act.” As could be seen from the said portion of the observation made by the Hon'ble Apex Court, it is clear that the court had no opportunity to deal with the case at pre-cognizance and post–cognizance stage and the Court has not made any comments as to whether the perusal of the complaint by the learned Magistrate, at the initial stages, prior to either referring the matter to 33 the Police or inquiring itself into the matter, amounts to taking of cognizance and the court also had no occasion to deal with the requirement of valid sanction at the time of even referring the matter to the Police. In the above said paragraphs, if it is carefully observed, the court has said that where there is an authority to remove a Public servant and to grant sanction for his prosecution u/s.19(1) of PC Act 1988, the requirement of sanction precludes the court from taking cognizance of the offences. It is also clarified that if there is no authority, competent to remove a Public servant and to grant sanction for his prosecution u/s.19(1) of the PC Act, then only there is no limitation to the power of the court to take cognizance u/s.190 of Cr.PC. Therefore, it makes abundantly clear that when there is a authority, competent to remove a Public servant, in that event prior to filing of a Private Complaint or a charge sheet by the Police to the Court, it is an absolute legal requirement that the complaint or the charge sheet as 34 the case may be should be accompanied by a ‘sanction order’. In this background, the Hon'ble Apex Court in P.V. Narasimharao’s case has observed that when once the charge sheet is filed before the court, on the pretext that no authority was there competent to issue sanction order, then the absence of such sanction order, should not be a ground for interfering with the proceedings at the Trial Court. In this context, Section 19(3) of the PC Act has to be understood i.e., to say the rigor of the prohibition contained in sub Section (1) is reduced by sub section (3) of Section 19 of the PC Act. In that context only any finding, sentence or order passed by a Special Judge shall not be reversed or altered by a Court in Appeal or in Revision or even by exercising powers u/s.482 of Cr.PC. Though this is a matter relating to procedure, the sanction does not go to the root of the jurisdiction of the court, but nevertheless, it is a positive and mandatory procedure to be complied with before lodging of the complaint. 35 22. Sub clause (a) of sub Section (3) of Section 19 of the PC Act only refers to finding sentence or order passed by a Special Judge should not be reversed or altered by a court in appeal, Confirmation or revision on the ground of absence of any error, omission or irregularity in the sanction required under sub Section (1) unless in the opinion of the court, a failure of justice has in fact has been occasioned thereby. At the time of referring the matter under section 156(3), the court has no jurisdiction to pass any finding or sentence or any order touching the merits of the case except ascertaining a prima facie case for reference. Further added to that, at the initial stages itself, if the party pleads that there is a failure of justice in not adhering to the mandatory provision of Sec.19(1) of the Act, then the courts have to meticulously observe whether without there being a sanction, a complaint can be maintained or not. If this were not to be the interpretation of the said provision, it would open the 36 flood gates to the people to lodge huge number of private complaints before the courts of law, without sanction order under Section 19(1) of the PC Act, that may also be one of the reason that the Hon'ble Apex Court in Aiyappa’s case has in detail meticulously observed that without the sanction order, the complaint itself is not maintainable and the court cannot proceed either u/s.156(3) or u/s.200 of Cr.PC.

23. The Hon'ble Apex Court in Aiyyappa’s case has also relied upon Sri P.V. Narasimharao’s case at paragraphs 7 and 8. This court is not empowered to say that the observations made in Sri P.V.Narasimharao’s case were not within the knowledge of the Hon'ble Apex Court while rendering the judgment in Aiyyappa’s case, because the Hon'ble Apex Court has referred P.V.Narasimharao’s case particularly with reference to Section 19(3) of PC Act. Therefore, with all probabilities, this court has to presume that, the 37 Hon'ble Apex Court in Aiyappas case bearing in mind the observations made in P.V. Narasimharao’s case, has interpreted the word ‘cognizance’ and also the jurisdiction of the Special Court u/s.156(3) or u/s.200 of Cr.PC in the absence of a valid sanction Order u/s.19(1) of the Act.

24. It can also be taken note of from the ruling of Sri P.V.Narasimharao’s case that prosecution was launched against the concerned accused persons and the court has taken cognizance and an Application was moved for discharge and the accused has sought to be discharged and in that context, the matter was moved before the Hon'ble Apex Court, therefore, the Hon'ble Apex Court found that it tantamounts to a finding or Order passed by the Special Judge touching the rights of the parties to the proceedings. In that context, the court has held that under Section 19(3) of the Act, the 38 Appellate Court or the revisional court cannot reverse the Order of the Special Court.

25. Looking to the above said facts and circumstances of the case on hand, it exactly fit into the principles laid down in Aiyappa’s case. The case in P.V.Narasimharao, as quoted above is not at all applicable to the factual matrix of this case. Therefore, in this case also, the complainant (respondent No.2) has filed the complaint against a sitting MLA without a valid sanction Order issued by the competent authority, therefore, the said proceedings are hit by the principles laid down in Aiyappa’s case.

26. The learned counsel also brought to my notice by filing a memo that the co-ordinate bench of this court, sitting at Dharwad in Shashidar and another Vs. State of Karnataka through Lokayuktha Police in Crl.P. No.1010 /2014 vide Order dated 9.9.2014, passed an Order that the question of sanction only comes into 39 picture to the court only at the time of taking cognizance on the basis of the Police report u/s.173 of Cr.PC. Therefore, that decision also should be taken note of by this Court. I have carefully perused the said judgment. The court after discussing the factual matrix of the case at paragraph 10, only on the basis of the facts, rendered such rulings, wherein it is stated that – “the case of petitioners i.e., A3 and A5 are examined. A3 was a Tahsildar at the relevant point of time. Thereafter, on promotion as Ac moved to a different office. Similarly, A5 at the relevant point of time, was the Dy. Director (land records ) Bellary and transferred from Bellary to Davangere. By virtue of promotion and transfer of A3 and A5, it is to be held that as on the date and time of making the complaint, they were not holding the office at Bellary. In view of the said facts, the cases referred to above, gives answer to the effect that sanction is not required to file the complaint against A3 and A5.” 40 27. In that factual context only, the court has come to the conclusion, that sanction is not necessary. The facts and circumstances of the case are altogether different. Therefore, the said decision also does not come to the help of the respondents herein. Moreover when the law and principles laid down by the Hon'ble Apex Court in the rulings cited above are exactly applicable to the facts and law involved in the case on hand, this court bound to follow the same. Therefore, the petition deserves to be allowed. Accordingly, I pass the following:

ORDER

The petition is allowed. The Private Complaint in PCR No.17/2002 and consequent reference and registration of Crime No.37/2012 by Lokayuktha Police and all further investigation thereon are hereby quashed. However complainant is at liberty to 41 prosecute the accused after obtaining a valid sanction from the competent authority. PL SD/- JUDGE