M. Ranganarasaiah Vs. State of Karnataka and Others - Court Judgment

Eswara Prasad, J.

1. The petitioner challenges Section 14 of the Karnataka Lokayukta Act, 1984 (L.A. Act of 1984' for short), as ultra vires of the Constitution of India as lacking in Legislative Competence of the State Legislature and prays for quashing of the proceedings of the Karnataka UpaLokayukta dated 31-7-1986, by which the prosecution of the petitioner was directed which is deemed to be sanction granted by the appropriate authorities.

2. The facts in brief are as follows :-

While the petitioner was working as Grading Demonstrator in the Office of the Chief Marketing Officer, Department of Marketing, Bangalore, a complaint was lodged by one Sri P. V. Naniah with the Deputy Superintendent of Police, Karnataka State Vigilance Commission on 13-9-1985 to the effect that the petitioner demanded illegal gratification of Rs. 400/- for the purpose of favouring him in connection with his official work. Pursuant thereto, it is alleged that a trap was laid and the petitioner was apprehended while demanding and accepting illegal gratification from the complainant. The matter which was under investigation by the Karnataka State Vigilance Commission stood transferred to the Karnataka Lokayukta, and the UpaLokayukta by the impugned order directed prosecution of the petitioner which is deemed to be sanction granted by the appropriate authority. A charge sheet dated 18-8-1986 was filed against the petitioner for alleged offences punishable under sections 161, IPC and 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947 ('P.C. Act of 1947' for short) in the Court of the Special Judge, Metropolitan Area, Bangalore and charges were framed. The attempts of the petitioner to have the matter referred to this Court on the question of validity of Section 14 of the L.A. Act, 1984 by seeking recourse to the provisions of Criminal Procedure Code having failed, the petitioner has filed this writ petition for the reliefs mentioned earlier.

3. Sri Srinivasachar, learned counsel for the petitioner submitted that he is not pressing the contention regarding the lack of legislative Competency of the Karnataka State Legislature in enacting Section 48 of the L.A. Act. He confines the challenge to Section 14 as being arbitrary and discriminatory, violative of Article 14 of the Constitution of India and as unreasonable. He elaborated the submission by contending that Section 14 prescribes a different procedure for granting sanction, from the procedure laid down by Section 6 of Prevention of Corruption Act, as it stood before its repeal and re-enactment by the Prevention of Corruption Act, 1988 (P.C. Act of 1988' for short), while dealing with persons who are similarly situated, thus creating two procedures. He contends that the procedure for according sanction under section 6 of P.C. Act of 1947 which was in force when the alleged offence was committed by the petitioner was more beneficial than the procedure prescribed under Section 14 of L.A. Act of 1984 and prescribing two procedures for grant of sanction against persons similarly situated, is arbitrary and discriminatory. The competent authority under the P.C. Act of 1947 could take into consideration the past official record and conduct of the employee while deciding whether to grant sanction for the prosecution of the employee, whereas the Lokayukta or UpaLokayukta will be guided only by the record of investigation, While considering whether to grant sanction or not under section 14 of L.A. Act of 1984.

4. Section 6 of P.C. Act, 1947 lays down that no Court shall take cognizance of an offence punishable under section 161 or Section 164 or Section 165 of the IPC or under sub-section (2) or sub-section (2A) of Section 5 of P.C. Act, except with the previous sanction of the Central Government in the case of employees of the Central Government, the sanction of the State Government in the case of employees of the State Government and in the case of any other person, by the authority competent to remove him from his office. The contention of the learned counsel for the petitioner is that the authority who is competent to remove the petitioner from office alone is competent to accord sanction for the prosecution of the petitioner.

5. The L.A. Act was enacted in the year 1984 and after receiving the assent of the President, became the Karnataka Act No. 4/1985. The said Act was amended by Karnataka Act No. 31 of 1986. Section 9 of the Act makes provisions relating to complaints and investigations according to which, any person many make complaint to the Lokayukta or UpaLokayukta in the prescribed form, whereupon, after making preliminary inquiry investigation may be conducted. After affording opportunity to the public servant against whom the complaint has been made and after considering his comments on such complaint, the complaint may be dropped or can be further investigated. Section 10 enable issuance of search warrants etc. Section 11 confers all the powers of the Civil Court on Lokayukta or UpaLokayukta. Under Section 12, report of Lokayukta can be submitted to the Governor. Prosecution of the public servant can be sanctioned by the Lokayukta or UpaLokayukta when it is satisfied that the public servant has committed any criminal offence. Such sanction shall be deemed to have been granted by the appropriate authority, where prior sanction of any authority is required for such sanction. The Karnataka State Vigilance Commission Rules, 1980 and certain other enactments stand repealed by Section 26. Under sub-section (2) of Section 26, any act or thing done under the repealed enactment or rule shall be deemed to have been done under the L.A. Act, 1988 and may be continued and completed under the corresponding provision of the said Act. Under sub-section (3) of Section 26, all enquiries and investigations and other disciplinary proceedings pending before the Karnataka State Vigilance Commission and which are not been disposed of, shall stand transferred to and be continued by the Upalokayukta as if they were commenced before him under the L.A. Act, 1988.

6. It is to be noted that the L.A. Act of 1984 received the assent of the President on 16-1-1985. Section 6 of P.C. Act, 1947 which was in force when the proceedings against the petitioner commenced, prescribed the authority competent to sanction prosecution against the petitioner. By virtue of Section 14 of L.A. Act of 1984, the Lokayukta or Upalokayukta are empowered to pass an order for the prosecution of the public servant concerned. If prior sanction of any authority is required for such prosecution, such sanction shall be deemed to have been granted by the appropriate authority. The L.A. Act of 1984 having received the assent of the President, operates and the order of the Upalokayukta shall be deemed to be the sanction of the appropriate authority. The contention of the learned counsel for the petitioner that in view of Section 6 of the P.C. Act, 1947 no sanction can be granted under section 14 of the L.A. Act, 1984 cannot be accepted. If sanction is accorded by the competent authority under the P.C. Act, 1947 or under section 19 of Prevention of Corruption Act, 1988 there will be no further need for the Lokayukta or Upalokayukta to pass an order directing the prosecution of a public servant, which may be deemed to be the sanction of the competent authority. If there is no such sanction of the competent authority under the Prevention of Corruption Act, the direction of the Lokayukta or Upalokayukta under section 14 will be deemed to be sanction of the competent authority.

7. The learned counsel lays emphasis on the different procedures prescribed under the Prevention of Corruption Act and the Lokayukta Act for sanctioning prosecution and contended the different procedures prescribed for similarly placed persons would lead to discriminatory treatment being meted out. Under the Prevention of Corruption Act, it is the competent authority that is empowered to accord sanction for prosecution. No specific guidelines are provided to the competent authority for coming to a conclusion in according sanction. The competent authority will have to guard itself against acting arbitrarily. The observations of the Supreme Court in R. S. Nayak v. A. R. Antulay relied on by the learned counsel, to the effect that the sanction to prosecute can be given by an authority competent to remove the public servant from the office, because the authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider, has no bearing on the facts and circumstances of this case, where the order which is deemed to be sanction of the competent authority as in this case, is a statutory authority, namely, the Upalokayukta. The statutory authority cannot be called a rank outsider. Under the provisions of the L.A. Act, 1984 elaborate procedure is prescribed under Sections 9, 11 and 12. Sufficient safeguards are provided for the public servant involved in the compliant to ensure that there is no room for the Lokayukta or Upalokayukta to arrive at arbitrary conclusions. A person to be appointed as a Lokayukta should have held the Office of a Judge of the Supreme Court or that of the Chief Justice of the High Court. A person to be appointed as Upalokayukta shall be a person who has been holding the Office of the Judge of the High Court. The Office of the Lokayukta and Upalokayukta are held by persons who have held high offices in the judiciary. The contention of the learned counsel that the Lokayukta or Upalokayukta are guided only by the record of investigation in coming to a conclusion under section 14, whereas the competent authority under the Prevention of Corruption Act can go into other considerations also, cannot be countenanced. The possibility of arriving at arbitrary conclusions is ruled out by confining to the record of investigation and by excluding extraneous considerations. It is not open to the petitioner to plead that he is denied the opportunity of placing extraneous material before the Lokayukta or Upalokayukta. At any rate, the petitioner cannot complain that he was prejudiced on account of the proceedings initiated in accordance with Section 14 of the L.A. Act, 1984. We are of the view that the procedure prescribed under Section 14 is neither arbitrary nor unreasonable and that it does not violate Article 14 of the Constitution of India and cannot be struck down. Thus the impugned order made cannot be struck down on that ground.

8. The learned counsel next contended that the sanction to prosecute is an important matter and it constitutes a condition precedent to the institution of the prosecution. The competent authority has an absolute discretion to grant or withhold sanction and can refuse sanction on any ground which commends itself to the competent authority, even on political or economic grounds when they regard prosecution as inexpedient, relying on Gokulchand Dwarkadas v. The King . On the facts of that case it was held by the Privy Council that the sanction was invalid. As observed earlier, the petitioner cannot complain that there was no scope for Upalokayukta to consider extraneous materials in granting sanction.

9. We are unable to accept the contention of the learned counsel for the petitioner that Articles 309 and 311(1) of the Constitution of India are attracted while dealing with the validity of Section 14 of the Lokayukta Act. Neither of the said articles deals with grant of sanction for prosecution person under the P.C. Act.

10. Relying on the decisions in Vishnoo V. Kamat Tarcar v. First Income-tax Officer, : [1994]207ITR1040(Bom) and P. V. Pai v. R. L. Rinawwa, ILR 1993 Kant 709 the learned counsel for the petitioner contended that the grant of sanction without giving an opportunity to the petitioner was violative of the principles of natural justice. In the writ petition, the petitioner took the plea that no opportunity was given to him before the impugned order was passed. In the counter filed on behalf of the respondent, the stand taken is that no opportunity need be given to the petitioner, before sanctioning prosecution.

11. Under Section 9(3)(a) of the Lokayukta Act, a copy of the complaint shall be forwarded to the public servant and the competent authority concerned, after making preliminary enquiry under sub-section (3). An opportunity to offer his comments on such complaint shall be afforded to the public servant under clause (b) of sub-section (3). The said provision is mandatory. The opportunity that should be given to a public servant is not merely based on principles of natural justice as contended by the learned counsel for the petitioner but is a mandatory statutory provision. The contention of the respondents that no opportunity need be given to the public servant before sanctioning prosecution cannot be accepted as the requirement of giving an opportunity is mandatory. Admittedly no such opportunity was given to the petitioner. On that very ground the impugned order has to be quashed and is accordingly quashed.

The writ petition is allowed. It is open to the 3rd respondent to afford an opportunity to the petitioner as required by Section 9 of the Lokayukta Act and to proceed further.

12. Petition allowed.