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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated the 3rd day of August 2012
: B E F O R E :
HON’BLE MR.JUSTICE : V.JAGANNATHAN
WRIT PETITION No. 14047 / 2012 (GM-RES)
BETWEEN :
Sri B.V.Acharya,Senior Advocate,S/o late Ramachandra Acharya,Aged about 78 years,No.42, 5th Main Road,Jayamahal Extension,Bangalore – 560 046.
…Petitioner
( By Sri R.N.Narasimhamurthy & Sri AshokHarnahalli, Senior Advocates, along withSri Sreenivas Rao, Sri Vishal Badni,
Sri Shahul Hameed and Sri Sandesh J.Chouta, Advocates. )
A N D :
1. Sri N.Venkateshaiah,S/o late Narayanappa,Aged about 94 years,No.7, Shivaganga Mutt Road,Chamarajapete, Bangalore-18.
2. The State by Lokayuktha Police,Bangalore, represented bythe Public Prosecutor,High Court Buildings, Bangalore.
…Respondents
( By Sri Ramesh Gupta, Senior Advocate,along with Sri B.Rajendra Prasad, Advocate, &
Sri Shivananda Raj for Kochhar & Co.,Advocates for R-1.
Sri B.A.Belliappa, Advocate for R-2. )
R
2
Writ Petition filed under Articles 226 and 227 of the
Constitution of India read with Section 482 of the Cr.P.C.
praying to issue a writ of certiorari quashing the impugned
order dated 21.4.2012 in P.C.R.No. 19/2012 passed by the
Court of the XXIII Addl. City Civil & Sessions Judge (Special
Court, Lokayuktha), Bangalore, and also to quash the
complaint, which is the basis of the said case.
This petition coming on for orders this day, the court
made the following :
O R D E R
The petitioner, a senior advocate, former Advocate
General of the State and the Special Public Prosecutor
in the case involving the Chief Minister of Tamil Nadu
and presently a member of the Law Commission of
India, is before this court calling in question the order of
the Special Judge under the Prevention of Corruption
Act referring the complaint of R-1 to the Superintendent
of Police for investigation under Section 156(3) of the
Cr.P.C.
2. R-1 filed the complaint on 7.3.2012 against five
persons including the petitioner and alleged in the
complaint thus: It was contended in the complaint that
3
the complainant was the author and trustee of a public
charitable trust called “Smt.Lakshmamma
B.M.Sreenivasaiah Charities” and the trust was a
registered trust and came into existence on 14.12.1995.
It was also averred in the complaint that the trust was
founded as per the will of late B.S.Narayan, son of late
B.M.Sreenivasaiah and as per the trust deed, the
complainant and one Sathyanarayana Swamy were
appointed as the first two trustees apart from three
other trustees being there.
3. In the year 1946, B.M.Sreenivasaiah College of
Engineering came into being and in course of time,
many others joined as trustees and the said B.M.S.
College of Engineering started functioning with the
financial assistance and aid from the Government of
Mysore. The Government of Karnataka later on
provided financial assistance of Rs.1,00,000/- as loan
to establish the B.M.S. College of Engineering. After
referring to the financial assistance received from the
Government during various periods, it was averred in
the complaint that the Government notification
4
appointing one Mr. M.R.Srinivasa Murthy as the donor
trustee in place of deceased Narayan was questioned by
Smt. Ragini Narayan, wife of B.S.Narayan, and that led
to a suit being filed in O.S.No. 2680/2000 by Smt.
Ragini Narayan, the third accused in the present
complaint.
4. Thereafter, after the judgment of the civil court
decreeing the suit of the plaintiff, aforesaid Ragini
Narayan, the donor trustee, appointed the petitioner
herein and two others viz., Vijay Gore and
Dr.P.Dayananda Pai, as member trustees. It is then
contended in the complaint that the council of trustees
of the B.M.S. Educational Trust, in the meeting held on
19.7.2010, enhanced the monthly remuneration from
Rs.1,00,000/- to Rs.2,00,000/-, though the amount
initially was only Rs.10,000/- per month and the
complainant also refers to the various benefits conferred
on the trustees as well as the Chairman, like purchase
of Toyota and Innova car and the payment made to
trustees also being very high, the bank balance under
F.D. head coming down.
5
5. The complaint also mentions that huge sums of
money were being collected as donation from the
students overlooking the merit candidates and the
trustees, therefore, are answerable for the excess
expenditure incurred and the petitioner herein, being
the Chairman of the trust, is also answerable for the
unaccounted donations and for misappropriating the
funds in the name of developmental activities. It was
also alleged in the complaint that as the accused
persons come within the meaning of ‘public servant’ the
offences under the P.C.Act also get attracted against
them.
6. Referring to the other factors like paying huge
amounts towards lease and house rent allowances to
the trustees and foreign tours being permitted to be
taken by them, the complainant, therefore, alleged that
the persons named as the accused in the complaint
have committed the offences punishable under Sections
409 and 120-B of the I.P.C. and Sections 13(1)(d) and (e)
read with 13(2) of the P.C.Act, 1988. As the trust was
6
also getting financial assistance from the Government,
the aforesaid acts on the part of the accused, therefore,
are indicative of the trust headed by the petitioner
herein having indulged in misappropriation of funds by
increasing the honorarium and perks when the money
involved is public money and, therefore, the
complainant sought for a comprehensive investigation
to be taken up by referring the matter to the
Lokayuktha police under Section 156(3) of the Cr.P.C.
7. The learned judge of the court below, after
referring to the aforesaid averments in the complaint,
passed the impugned order referring the matter to the
Superintendent of Police for investigation under Section
156(3) of the Cr.P.C. and to report by 23.5.2012. It is
this order of the court below that has given rise to this
petition under Articles 226 and 227 of the Constitution
of India read with Section 482 of the Cr.P.C.
8. I have heard learned senior counsel Shri
R.N.Narasimhamurthy and learned senior counsel Shri
Ashok Harnahalli for the petitioner and learned senior
7
counsel Shri Ramesh Gupta and also learned counsel
Shri Shivananda Raj for R-1 complainant, and learned
counsel Shri B.A.Belliappa for R-2 Lokayuktha, and
perused the material placed.
9. Shri R.N.Narasimhamurthy, learned senior
counsel, opening the arguments on behalf of the
petitioner, at the outset, submitted that the procedure
followed by the learned Special Judge itself is unknown
to law inasmuch as the impugned order mentions that
the first complaint filed by R-1 herein was withdrawn
and then the second complaint came to be presented.
But, the order sheet of the court below does not indicate
that the complainant was permitted to withdraw the
first complaint. Therefore, for all purposes, two
complaints were before the court and the question of
permitting one complaint to be substituted by another
complaint does not arise.
10. The order sheet also reveals that, soon after filing
of the first complaint, the matter was posted to hear on
the maintainability of the complaint and without
8
passing any order on that aspect, the court below could
not have taken into account the second complaint.
Therefore, the procedure followed is totally contrary to
law and a careful perusal of the order sheet of the court
below and the order passed, which is impugned in this
petition, do not make out as to which of the two
complaints were taken note of by the learned judge for
referring the case for investigation under Section 156(3)
of the Cr.P.C.
11. The next contention put forward by the learned
senior counsel is that, in respect of some of the
allegations made in the complaint, writ petitions were
pending in which C.B.I. inquiry was sought, but the
court below proceeded to refer the matter for
investigation although the subject matter of the
complaint was also seized by a superior court. This is
another defect in the procedure followed by the court
below.
12. As far as the position of the petitioner is
concerned, it is contended that the petitioner cannot be
9
brought within the definition of ‘public servant’ as he
was only the Chairman of the Board of Trustees and,
therefore, the complaint before the Lokayuktha is not
maintainable. In the alternative, it was argued that if
the petitioner was to be construed as a public servant
within the meaning of the P.C.Act, then, the complaint,
without being accompanied by a valid sanction order,
could not have been entertained by the learned Special
Judge of the court below.
13. Referring to the averment at paragraph-23 of the
complaint, it is submitted that the complainant wants
the court to collect the evidence on his behalf inasmuch
as it is averred in the complaint that the complainant
has got no access to the documents and, therefore,
investigation is necessary to collect the material
evidence to unfold the charges levelled in the complaint.
The court, therefore, cannot collect the evidence on
behalf of the complainant so as to enable the
complainant to make out a case against the accused
persons. It is, therefore, argued that without any
material being there to substantiate the allegations
10
made in the complaint, it cannot be said that the
complaint reveals the facts relating to cognizable
offences to be taken note of by the court.
14. Supplementing the aforesaid submissions of Sri.
R.N. Narasimha Murthy, learned senior counsel Shri
Ashok Harnahalli, referring to the contents of the
complaint, argued that no grants were received by the
B.M.S. Educational Trust, but only an industrial loan
was raised in 1957 and the salary grants were limited to
the payment of salary to the teachers. It was then
contended by Sri Ashok Harnahalli that the impugned
order of the court below does not indicate any
application of mind on the part of the trial court and
except reproducing the arguments of the counsel for the
complainant, the trial court took no steps to examine as
to whether the facts alleged in the complaint constituted
cognizable offences or not. The very fact that the trial
court had initially posted the matter to hear on
maintainability itself indicates that the complaint did
not make out any of the offences whatsoever against the
petitioner.
11
15. As far as the manner of utilizing the funds is
concerned, it is submitted that merely because the
petitioner herein, as the Chairman of the trust, had
agreed with the other trustees to increase the
honorarium to Rs.2,00,000/- per month and if certain
amounts were also kept in the reserve fund, the said
acts by themselves will not constitute the offences
alleged against the petitioner. Moreover, some of the
issues raised in the complaint were also seized by this
court in Writ Petition No. 33135/2011 and when the
matter was thus pending before this court, the present
complaint came to be filed and the trial court ought to
have refrained itself from taking any action in the
matter under such circumstances.
16. Since the Lokayuktha insisted upon the
complainant to produce the documents in proof of the
allegations against the accused persons, the
complainant, therefore, wants the court to aid him by
collecting the material and documents so that he could
produce them before the Lokayuktha police. This being
12
the sole aim and objective of the complainant, the court
below, therefore, could not have passed the impugned
order.
17. Referring to the two complaints, it is argued that
though the learned judge of the court below has
observed in the second paragraph of the impugned
order that on same set of facts a complaint was filed
earlier, the submission made is that, a perusal of the
two complaints would go to show that the facts are not
one and the same but entirely different. Referring to the
rejoinder filed by the petitioner in response to the
objections filed by the complainant in the present
petition, it is argued that the details of the investments
made have been explained in the rejoinder and that
would go to show that, in order to get certain benefits
under the Income Tax Act, the deposits were made.
18. The next contention put forward is that, the
present complaint has been lodged for extraneous
reasons because, the petitioner is also the Special
Public Prosecutor to conduct the disproportionate
13
assets case against the present Chief Minister of Tamil
Nadu in Special C.C.No. 208/2004 and referring to the
various writ petitions filed, it is contended that the effort
was to see that the petitioner does not appear as Special
Public Prosecutor and, therefore, the present complaint
is ill-motivated only to ensure that the petitioner is
dislodged from the role of public prosecutor in the
aforementioned Special C.C.No. 208/2004. The further
submission made is that the petitioner resigned from
the post of Advocate General on 8.2.2012 and the
present complaint came to be filed much before that on
24.1.2012 and the second complaint was filed on
7.3.2012. Referring to all these events, the submission
made is that, the complaint now presented is with an
ulterior motive and, as such, the court below could not
have mechanically referred to matter to the S.P. for
investigation under Section 156(3) of the Cr.P.C.
19. Referring to the orders passed by this court in
various petitions, it is submitted that, as the attempt of
D.V.A.C. to engage its own counsel was unsuccessful
and secondly, as the further attempt made by the
14
D.V.A.C. to seek further investigation in respect of the
aforementioned Special C.C.No. 208/2004 also being
unsuccessful and as the Apex Court also confirmed the
orders of this court in these matters, now, the present
complaint is filed to somehow see that the petitioner
does not continue to function as the Special Public
Prosecutor. Thus, the complaint is filed with an oblique
motive.
20. The next contention put forward by the learned
senior counsel Sri Ashok Harnahalli for the petitioner is
that, without proper sanction order accompanying the
complaint, the trial court could not have referred the
matter to the police for investigation under Section
156(3) of the Cr.P.C. even if it is taken into
consideration that the petitioner fits into the definition
of ‘public servant’ as defined in the P.C.Act. Therefore,
for want of sanction order, the complaint itself is not
maintainable and the learned judge of the court below,
therefore, has acted without jurisdiction. To fortify the
aforesaid submission, reliance is placed on the Apex
Court decision in the case of Subramanian Swamy Vs.
15
Manmohan Singh, reported in (2012)3 SCC 64, and
particular reference was made to the argument
canvassed by the Attorney General and the said
contention being rejected by the Apex Court. Therefore,
in the light of the observations of the Apex Court in the
said case, the submission made is that, the court below
could not have taken notice of the complaint itself
without there being a sanction order to prosecute the
petitioner.
21. The learned senior counsel also argued that,
taking into account the entire scheme of the Cr.P.C. and
in particular, Sections 156, 190, 197 and 200 of the
Cr.P.C., the Magistrate dealing with a complaint under
Section 200 of the Cr.P.C. cannot be forced to take a
particular course of action only, without any discretion
left to him whatsoever. In other words, if the complaint
is accompanied by a sanction order, then, the
Magistrate will have several options open to him as are
contained in Sections 200 and 202 read with 190 of the
Cr.P.C. If, in a given case, the complaint is not
accompanied by a sanction order, then, the Magistrate
16
will be compelled to refer the matter for investigation
under Section 156(3) of the Cr.P.C. and will be left with
no other option. Such a situation is not contemplated
under the scheme of the Cr.P.C.
22. As far as application of mind on the part of the
Magistrate is concerned, it is argued that even where
the court invokes the power under Section 156(3) of the
Cr.P.C., application of mind is necessary and, therefore,
merely because the court orders investigation under
Section 156(3) of the Cr.P.C. before actually taking
cognizance of the offence, it cannot be said that the
order passed under Section 156(3) of the Cr.P.C. does
not require any application of mind on the part of the
judge concerned. In other words, it is argued that
whether the stage is post-cognizance or pre-cognizance
stage, application of mind is essential. In the instant
case, the court below, without applying its mind and
without there being a sanction order, has mechanically
ordered investigation by the police under Section 156(3)
of the Cr.P.C. and, therefore, the said action on the part
of the court below is contrary to the law laid down by
17
the Apex Court and hence, the impugned order is liable
to be set aside on that sole ground alone.
23. Another submission put forward by Shri Ashok
Harnahalli is that, the petitioner has high reputation
and the number of positions held by him reflects this.
Hence, the trial court could not have directed
investigation merely because a complaint is presented
making certain allegations against the accused persons.
Even if the entire complaint is taken as reflecting the
true facts, yet, the complaint allegations do not make
out any of the offences against the petitioner and thus
the court below committed serious error in not taking
into account these vital factors and the complaint itself
is nothing but an abuse of the process of law only to
tarnish the image of the petitioner.
24. Nextly it is contended that the only allegations
against the petitioner are that, he allowed the
honorarium to be increased and secondly, certain
amounts were kept in F.D. as development funds and,
as far as the capitation fee issue is concerned, the
18
submission made is that the writ petition filed in this
regard by the students came to be dismissed by this
court. Therefore, none of the offences alleged in the
complaint can be said to have been, even remotely,
made out against the petitioner and thus, it is clear that
the entire complaint is nothing but an act of
vindictiveness with a malafide intention to harass the
petitioner. Such being the nature of the complaint, in
the backdrop of the positions held by the petitioner,
more particularly that of the Special Public Prosecutor
in Special C.C.No. 208/2004, the learned judge of the
trial court has totally failed to consider these aspects of
the matter and, as such, the impugned order of the
court below is liable to be set aside.
25. The aforesaid submissions are sought to be
supported by relying on the decisions reported in AIR
1992 SC 604, AIR 1990 SC 1962, 2012(3) SCC 64,
2009(6) SCC 372, 2003(8) SCC 361, 2004(3) Kar.L.J.
505, 1999 Crl.L.J. 3909, 2008(5) SCC 668, (2011)3 SCC
351, 2012 AIR SCW 663, 2012 Crl.L.J. 438, 1999
Crl.L.J. 3909, 2002(4) Kar.L.J. 490, 1998(3) Kar.L.J.
19
169, 1982(1) SCC 561, AIR 2012 SC 521 and 2011(13)
SCC 412.
26. Sri Ramesh Gupta, learned senior counsel
appearing for R-1, repelling the aforesaid contentions
put forward by the learned senior counsel for the
petitioner, contended on his part that, when the
Magistrate acts under Section 156(3) of the Cr.P.C. and
refers the case for investigation to the police, it is the
pre-cognizance stage and at this stage, application of
mind by the Magistrate does not arise and, therefore,
the court below committed no error in passing the
impugned order. Some distinction was sought to be
drawn between taking action under Section 156(3) of
the Cr.P.C. and proceeding under Section 200 of the
Cr.P.C. after taking cognizance and then going by the
provisions of Section 202 of the Cr.P.C. onwards.
Therefore, it is argued that, at a pre-cognizance stage,
the complainant is not required to produce any sanction
order to prosecute the petitioner and the question of the
sanction will arise only at the stage of taking cognizance
of the offence. In this regard, the provisions contained
20
in Section 19 of the P.C.Act, 1988 as well as Section
197 of the Cr.P.C. were referred to contend that the
issue of sanction order will arise only at the stage of
taking cognizance and not before that. Hence, the
contentions urged by the learned senior counsel for the
petitioner in this regard will have to be rejected.
27. Nextly it is argued by the learned senior counsel
for R-1, by referring to the contents of the complaint,
that the complaint does disclose the allegations relating
to cognizable offences and the manner of the funds
being spent by the trust of which the petitioner is the
Chairman, goes to show that the amount of honorarium
was raised from Rs.10,000/- to Rs.1,00,000/- and then
to Rs.2,00,000/- and secondly, the funds of the trust
have been siphoned off towards various benefits like
providing various luxurious facilities to the trust
members. Mere allegations in the complaint are
sufficient for the court to proceed with the matter and it
is, therefore, contended that after the receipt of the
report from the police, the court may or may not
proceed with the matter and, therefore, it is too
21
premature to say that the complaint must be
accompanied by the sanction order to prosecute the
petitioner.
28. As far as the two complaints issue is concerned, it
is argued that, even where the first complaint is
dismissed, the second complaint can be maintained
and, in the instant case, the order passed by the
learned Special Judge itself indicates that the first
complaint was withdrawn following a memo filed and,
therefore, there is no question of two complaints being
there before the court.
29. As regards the mismanagement by the trust is
concerned, the learned senior counsel referred to the
affidavit filed by the State of Karnataka before the Apex
Court in S.L.P.No. 1097/2010 (now S.L.P.No.
25717/2010) to contend that the State Government also
was of the view that there has been no proper
management of the funds by the trust. In order to drive
home the point that the petitioner is a public servant
and that the action taken by the learned trial judge
22
under Section 156(3) of the Cr.P.C. being at a pre-
cognizance stage and, therefore, no sanction order need
accompany the complaint, the learned senior counsel
for R-1 placed reliance on several decisions of the Apex
Court and in particular to the decision of the Apex
Court in the case of Srinivas Gundluri Vs. SEPCO Electric
Power Construction Corporation, reported in (2010)8 SCC
206, and the decision in P.V.Narasimha Rao Vs. State
(CBI/SPE), reported in 1998 SCC (Cri) 1108.
30. As far as the irregularities or the procedural errors
committed by the trial court are concerned, to counter
the arguments of senior counsel for the petitioner,
reliance is placed by learned senior counsel Sri Ramesh
Gupta on the decisions of the Apex Court reported in
AIR 1962 SC 876 as well as the other decisions reported
in 1985(2) VII Crimes 132, 1997 Crl.L.J. 4383, 2002 III
AD Delhi 1051, 2003 Crl.L.J. 866, 2004 Crl.L.J. 2633,
2010(2) SCC (Cri) 1085, 2003 SCC (Cri) 1305, (1984)2
SCC 500, (2007)1 SCC 1, (1998)4 SCC 626, 2011(11)
ILR-CUT-894, (2006)6 SCC 728 and (2012)1 SCC 130.
23
31. The submission therefore made is that the
impugned order of the learned Special Judge does not
call for any interference by this court under Articles 226
and 227 of the Constitution of India or under Section
482 of the Cr.P.C.
32. Concerning the decision of the Apex Court in
Subramanian Swamy’s case on which reliance is placed
by the learned senior counsel for the petitioner, the
submission made by learned counsel Sri Shivananda
Raj is that, the Apex Court was seized with the question
as to the time within which sanction order has to be
passed and, therefore, the said decision has no
application to the case on hand and hence, the petition
be dismissed.
33. In the light of the aforesaid contentions put
forward by the learned senior counsel and the learned
counsel for the parties, whether the order passed by the
court below referring the matter to the investigation
under Section 156(3) of the Cr.P.C. can be held to be
sustainable in law is the point for consideration. This,
24
in turn, would depend upon answering the contentions
raised by the learned senior counsel appearing for the
petitioner.
34. It is the contention of the learned senior counsel
for the petitioner that the court while exercising the
power u/s 156(3) of the Cr.P.C has to apply its mind
and the act of referring the matter for investigation
under the said section is not an empty formality,
whereas the counter submission made by the learned
senior counsel Sri. Ramesh Gupta for the other side is
that, no application of mind is required when the matter
is referred by the Magistrate or the Special Judge, as
the case may be, for investigation under section 156(3)
of the Cr.P.C. The position in law therefore requires to
be taken note of in this connection.
35. The Apex Court in the case of Jamuna Singh Vs
Bhadai Shah has held that, when on a petition of
complaint being filed before him, the Magistrate applies
his mind for proceeding under the various provisions of
Chapter XVI of the Cr.P.C. and he must be held to have
25
taken cognizance for the offences mentioned in the
complaint. When, however, he applies his mind, not for
the purpose but for purposes of ordering investigation
u/s 156(3) or issues a search warrant for the purpose of
investigation, he cannot be said to have taken
cognizance of any offence. Thus, it is clear that
application of mind is required even while exercising
power u/s 156(3) of the Cr.P.C.
36. The very same principle was also laid down by the
Apex Court in another decision in the case of Gopal Das
Vs State of Assam (AIR 1961 S.C. 986).
37. This court in the case of P.R. Venugopal Vs S.M.
Krishna, the Chief Minister of Karnataka and others
(2003(6) K.L.J.507) has also taken the view that, to
make a reference to police for investigation, the
Magistrate has to apply his mind as to whether the
allegations in the complaint are sufficient to make such
order for investigation u/s 156(3) of the Cr.P.C.
26
38. The decision of this court in the case of Guruduth
Prabhu & others Vs M.S.Krishna Bhat (1999 Crl.L.J.
3909) is also to the effect that, the order of the
Magistrate directing investigation u/s 156(3) without
applying his mind to allegations made in the complaint,
will be without jurisdiction and the High Court either
u/s 482 or under Article 226 of the Constitution is
empowered to quash the investigation.
39. Thus, it is clear from the aforesaid principles laid
down by the Apex Court and also by this court that,
application of mind is necessary even when the Special
Judge refers the case for investigation u/s 156(3) of
Cr.P.C. The same principles were also reiterated by the
Apex Court in yet another decision in the case of
Maksud Saiyed Vs State of Gujarat ((2008)5 SCC 668).
It was also held in the said case that, the Magistrate
ordering police investigation u/s 156(3) of Cr.P.C. has to
apply his mind and in the said case before it, the Apex
Court found that there was non application of mind by
the Magistrate while ordering police investigation u/s
156(3) of Cr.P.C.
27
40. Therefore, the contention of the learned senior
counsel for the respondent that no application of mind
is necessary while ordering investigation u/s 156(3) of
Cr.P.C. has to be rejected.
41. The next aspect which will have to be considered
is as to whether the petitioner comes within the
definition ‘public servant’ as defined in the Prevention of
Corruption Act, 1988. It is contended by the learned
senior counsel for the petitioner that the petitioner
being the Chairman of the BMS Educational Trust is
not a ‘public servant’ and it is also argued in the
alternative that, if he comes within the said definition of
‘public servant’, then sanction is a prerequisite. On the
other hand, contention of the learned senior counsel
Sri. Ramesh Gupta for the respondent is that, the
petitioner comes within the definition of ‘public servant’.
42. I have considered the aforesaid contentions in the
light of the stand taken by the parties in the petition as
well as the objections filed by the respondent.
28
43. The definition of ‘public servant’ u/s 2(c) of the
Prevention of Corruption Act, 1988 provides under
Clauses (viii) and (xii) as under:
“(viii) any person who holds an office by
virtue of which he is authorised or required
to perform any public duty.
(xii) any person who is an office-bearer or
an employee of an educational, scientific,
social, cultural or other institution, in
whatever manner established, receiving or
having received any financial assistance
from the Central Government or any State
Government, or local or other public
authority.”
44. At the time of presentation of the complaint, the
fact that the petitioner was and continues to be the
Chairman of the BMS Educational Trust is not in
dispute. The complaint also mentions that the said
Trust has received financial assistance from the
Government from time to time and the details of the
grant/assistance received are also mentioned in the
complaint. Even in the objections filed by the
respondent No.1 to the writ petition, details of the
29
amounts received by the aforementioned Trust is also
mentioned. The object of the aforesaid Trust is
imparting education, is also not in dispute. It is the
students who have to form the public in general who are
benefitted from the courses conducted by the aforesaid
Trust is also not in controversy. Under the said
circumstances, it has to be held that the petitioner
satisfies the requirement of section 2(c) (viii) as well as
(xii) of the Prevention of Corruption Act, 1988.
45. A Division Bench of the Orissa High Court in the
case of North Eastern Electricity Supply Company Vs
State of Orissa, while dealing with the definition of
‘public servant’ under section 2(b)(c) of the Prevention of
Corruption Act has held that the employees of North
Eastern Electricity Supply Company of Orissa are public
servants for the purpose of bringing them under the
purview of the provisions of the Prevention of
Corruption Act. Relying on the Apex Court decision in
the said case, the Division Bench of the Orissa High
Court has also observed that, when the petitioner-
company, though a private company, is found
30
discharging public functions/duties, its employees will
come under the definition of ‘public duty in discharge of
the State’, the public or entity at large has a interest
and they come under the definition of public servant
within the meaning of section 2(c) of the Prevention of
Corruption Act.
46. Learned senior counsel for R-1 has also placed
several decisions in this connection and one of them is
the decision of the Kerala High Court in K. Balaji
Iyengar Vs State of Kerala, wherein the court has taken
the view that the persons holding the offices of
Secretary and President of the Kerala Cricket
Association, being required to perform public duties by
virtue of the offices held by them, would therefore bring
them within the definition of Clause (viii) of Clause (c) of
Section 2 of the P.C.Act. Therefore, in the light of the
aforesaid decisions and aforementioned definition
clauses contained in the P.C.Act, no doubt arises as to
the position of the petitioner and I therefore hold that
the petitioner satisfies the definition of ‘public servant’
as defined in the P.C.Act. It may also be mentioned at
31
this juncture that, apart from being the Chairman of the
B.M.S.Educational Trust which position he continues to
hold, the petitioner was also the Advocate General of
this State at the time when the complaint was presented
on 24.1.2012 and he also holds the post of a Member of
the Law Commission of India. As we are concerned in
this case with regard to the complaint allegations and
as the petitioner continues to be the Chairman of the
BMS Educational Trust, as such, the contention of the
learned senior counsel for the petitioner, that the
petitioner is not a ‘public servant’ cannot be accepted. I
hold that the petitioner comes well within the definition
of ‘public servant’ as contained in Section 2(c) of the
P.C.Act.
47. The next contention put forward by the learned
senior counsel Sri.T.N. Narasimhamurthy and also Sri.
Ashok Harnahalli for the petitioner is that, if the
petitioner is to be construed as a ‘public servant’ coming
within the ambit of section 2(c) of the P.C.Act, then the
order of the court below directing investigation u/s
156(3) of the Cr.P.C will be without jurisdiction for want
32
of sanction. This takes us to the relevant provision of
the P.C.Act u/s 19(1). The said provision of law is as
under:
19 (1). No court shall take cognizance of an
offence punishable under Sections 7, 10, 11,
13 and 15 alleged to have been committed by
a public servant, except with the previous
sanction,-
(a) in the case of a person who is employed
in connection with the affairs of the
Union and is not removable from his
office save by or with the sanction of the
Central Government, of that Government;
(b) in the case of a person who is employed
in connection with the affairs of a State
and is not removable from his office save
by or with the sanction of the State
Government, of that Government;
(c) in the case of any other person, of the
authority competent to remove him from
his office.
48. Much emphasis was laid by the learned senior
counsel Sri.Ramesh Gupta for R-1 that the expression
‘cognizance’ appearing in Section 19(1) will have to be
33
construed as the post-cognizance stage and not pre-
cognizance stage and therefore the requirement of
sanction does not arise prior to taking cognizance of the
offences punishable under Sections 7, 10, 11, 13 and
15 of the P.C.Act.
49. On the other hand, the contention of the learned
senior counsel for the petitioner is that, even before the
cognizance is taken in respect of a private complaint,
the necessity to obtain the sanction order from the
competent authority does arise. Both sides have relied
on several decisions in this connection and before
considering the aforesaid contentions, it becomes
necessary to understand what the expression
‘cognizance’ means.
50. Dealing with the expression ‘cognizance’ in section
197 of the Cr.P.C. the Apex Court through a 3 Judge
Bench in the case of State of Uttar Pradesh Vs. Paras
Nath Singh ((2009)6 SCC 372) has considered the
meaning of the term ‘cognizance’ and has held at para.6
thus:
34
“ 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 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' make it abundantly
clear that the bar on the exercise of power of
the court to take cognizance of any offence is
absolute and complete. The very cognizance
35
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 committed during
discharge of his official duty.” (emphasis
supplied)
51. The Apex Court in the case of State of West
Bengal Vs Mohd. Khalid & others ((1995)1 SCC 684)
which judgment is referred to in the case of
Subramanian Swamy Vs Manmohan Singh ((2012)3
SCC 64) has observed thus at para.38:
“ It is necessary to mention here that taking
cognizance of an offence is not the same thing
as issuance of process. Cognizance is taken
at the initial stage when the Magistrate
applies his judicial mind to the facts
mentioned in a complaint or to a police report
or upon information received from any other
36
person that an offence has been committed.
The issuance of process is at a subsequent
stage when after considering the material
placed before it the court decides to proceed
against the offenders against whom a prima
facie case is made out.”
52. The Law Lexicon of Sri. P. Ramanatha Iyer (2nd
Edition Reprint 2008) has the following meaning
assigned to the term ‘cognizance’ at page.352.
“ Cognizance Judicial notice or knowledge;
the judicial recognition or hearing of a cause;
jurisdiction, or right to try and determine
causes. It is a word of the largest import:
embracing all power, authority and
jurisdiction. The word “Cognizance” is used
in the sense of “the right to take notice of and
determine a cause”. Taking cognizance does
not involve any formal action, or indeed action
of any kind, but occurs as soon as a
Magistrate, as such, applies his mind of the
suspected commission of an offence. (37 Cal
412: 14 CWN 512: 6 IC 8: 11 Cr L.J.217)
To take cognizance implies a conscious
volition on the part of the Magistrate. The
37
fact that a Magistrate passes an order
remanding the accused to custody pending
investigation does not lead to the inference
that he has taken cognizance, when he never
considers at all whether he is or is not taking
cognizance. (1936 AMLJ 85).
Cognizance takes place at a point when
a Magistrate first takes judicial notice of an
offence. This is the position whether the
magistrate takes cognizance of an offence on a
complaint, or on a police report, or upon
information of a person other than a police
officer. Darshan Singh Vs State of
Maharashtra, AIR 1971 SC 2372, 2374
(Sec.196-A).”
53. Thus, it is clear from the aforesaid meaning
assigned to the word ‘cognizance’ by the Apex Court, as
well as the meaning in the Law Lexicon referred to
above, that the word ‘cognizance’ has a wider
connotation than the limited or the narrow view
expressed by the learned senior counsel for the
respondent. As the Apex Court has held in Paras Nath
Singh’s case, the word ‘cognizance’ therefore means in
38
common term ‘taking notice of’, it is therefore not
confined only to the stage of taking cognizance of the
offence.
54. As far as the legal position concerning the stage at
which the power is exercised by the Magistrate/Special
Judge u/s 156(3) of the Cr.P.C, there can be no doubt
as to the said position inasmuch as, when the Special
Judge refers the complaint for investigation u/s 156(3),
it obviously means that he had not taken cognizance of
the offence and therefore it is a pre-cognizance stage
and cannot be equated with the post-cognizance stage
as rightly submitted by the learned senior counsel
appearing for both sides. If the Special Judge takes
cognizance of the offence upon the complaint presented
u/s 200 of the Cr.P.C., the next course of action to be
followed is u/s 202 of Cr.P.C. and thereon. Therefore,
the act of the Special Judge referring the case for
investigation u/s 156(3) is at pre-cognizance stage. The
decisions cited by the learned senior counsel for both
sides also lay down the said position in law.
39
55. The next contention put forward by the learned
senior counsel Sri. R.N.Narasimhamurthy and Sri.
Ashok Harnahalli for the petitioner is that, even though
the power to order investigation u/s 156(3) can be
exercised by the Magistrate of Special Judge at a pre-
cognizance stage, yet the requirement of the sanction
order being obtained by the complainant cannot be
dispensed with. In other words, it is argued that the
requirement of sanction is a prerequisite even for
presenting a private complaint u/s 200 of the Cr.P.C. in
respect of a public servant concerning the alleged
offence said to have been committed during the
discharge of public duty. Therefore, it is argued that
the private complaint without being accompanied by the
sanction order, itself is not maintainable and the
Special Judge cannot even take notice of the private
complaint. Reliance is placed in this regard by the
learned senior counsel for the petitioner particularly on
the Apex Court decision in Subramanian Swamy’s case
referred to earlier.
40
56. In the case of Subramanian Swamy Vs Manmohan
Singh ((2012)3 SCC 64) the Apex Court considered the
contention raised before it as to the stage at which the
question as regards sanction order arises. It was
contended before the Apex Court by the Attorney
General that the question of sanction order arises only
at the time of taking cognizance and not before that.
The said contention was rejected by the Apex Court
and it was held thus at para.34 and para.64.
“ 34. The argument of the learned
Attorney General that the question of
granting sanction for prosecution of a public
servant charged with an offence under
the 1988 Act arises only at the stage
of taking cognizance and not before
that is neither supported by the plain
language of the section nor the
judicial precedents relied upon by him.
Though, the term `cognizance' has not been
defined either in the 1988 Act or the Cr.P.C,
the same has acquired a definite meaning
and connotation from various judicial
precedents. In legal parlance cognizance is
"taking judicial notice by the court of law,
possessing jurisdiction, on a cause or matter
41
presented before it so as to decide whether
there is any basis for initiating proceedings
and determination of the cause or
matter judicially".
64. I also entirely agree with the
conclusion of learned brother Singhvi,
J., that the argument of the learned
Attorney General that question for
granting sanction for prosecution of a
public servant charged with offences
under the 1988 Act arises only at the
stage of cognizance is also not acceptable. In
formulating this submission, the learned
Attorney General substantially
advanced two contentions. The first
contention is that an order granting
sanction is not required to be filed
along with a complaint in connection
with a prosecution under Section 19
of the P.C. Act. The aforesaid
submission is contrary to the settled
law laid down by this Court in
various judgments. (emphasis supplied)
64.1. Recently a unanimous three-judge
Bench decision of this Court in the
case of State of Uttar Pradesh vs.
Paras Nath Singh, [(2009) 6 SCC 372],
42
speaking through Justice Pasayat and
construing the requirement of sanction,
held that without sanction:
“6….. ‘10…….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."
64.2. The other contention of the
learned Attorney General is that in
taking cognizance under the P.C. Act
the Court is guided by the provisions
under Section 190 of the Code and
in support of that contention the
learned Attorney General relied on
several judgments.”
43
57. It is therefore clear that the Apex Court negatived
the contention that the order of granting sanction is not
required to be filed along with the complaint in
connection with the prosecution and u/s 19 of the
P.C.Act. Similar contention that is now put forward by
Sri Ramesh Gupta also has to be met with the same
answer.
58. The object behind the requirement of sanction
order was also considered by the Apex Court in the very
same decision under consideration, at para.72 and
para.73. The observations made are as under:
“72. The right of private citizen to
file a complaint against a corrupt
public servant must be equated with
his right to access the Court in order to set
the criminal law in motion against a
corrupt public official. This right of
access, a Constitutional right should
not be burdened with unreasonable
fetters. When a private citizen
approaches a court of law against a corrupt
public servant who is highly placed,
what is at stake is not only a
vindication of personal grievance of
44
that citizen but also the question of
bringing orderliness in society and
maintaining equal balance in the rule of
law.
73. It was pointed out by the
Constitution Bench of this Court in
Sheonandan Paswan vs. State of Bihar and
Others, (1987) 1 SCC 288 at page 315:
"14.......It is now settled law that a
criminal proceeding is not a proceeding
for vindication of a private grievance
but it is a proceeding initiated for the
purpose of punishment to the offender in the
interest of the society. It is for
maintaining stability and orderliness in the
society that certain acts are constituted
offences and the right is given to any
citizen to set the machinery of the
criminal law in motion for the purpose of
bringing the offender to book. It is for
this reason that in A.R. Antulay Vs.
R.S. Nayak this Court pointed out
that (SCC p. 509, para 6)
"6…..Punishment of the offender in
the interest of the society being one of
the objects behind penal statutes
45
enacted for larger good of the society,
right to initiate proceedings cannot
be whittled down, circumscribed or
fettered by putting it into a strait
jacket formula of locus standi......"
59. At para.74 of the decision, the Apex Court has
held that the protection given u/s 19 to a public servant
are not available to other citizens and public servants
are treated as a special class of persons enjoying the
said protection so that they can perform their duties
without fear and favour and without threats of
malicious prosecution. However, the court also added
that the protection given cannot become a shield to
protect corrupt officials. After thus holding as regards
the requirement of sanction in respect of a private
complaint, at para.81 of the judgment certain guidelines
were also laid down for the Parliament to consider. One
such guideline is at 81(c) which reads as under:
“ 81(c) At the end of the extended period of
time limit, if no decision is taken, sanction
will be deemed to have been granted to the
proposal for prosecution, and the prosecuting
46
agency or the private complainant will
proceed to file the charge sheet/complaint in
the court to commence prosecution within 15
days of the expiry of the aforementioned time
limit.”
60. Thus, it is clear from the aforesaid decision of the
Apex Court that the requirement of sanction order
cannot be dispensed with even in respect of a private
complaint filed by a citizen against a public servant
alleging offences under the P.C. Act said to have been
committed while discharging public duty as a public
servant.
61. Can a private complaint without the sanction
order being accompanied be entertained by the court
while invoking power u/s 156(3) of the Cr.P.C is the
question that requires to be considered at this juncture.
62. Learned senior counsel Sri. Ashok Harnahalli for
the petitioner referring to the scheme of the Code of the
Criminal Procedure argued that, if a private complaint
as in the instant case, is not accompanied by a sanction
order, the Special Judge under the P.C.Act will have no
47
other option but to refer the complaint to the police for
investigation u/s 156(3) of the Cr.P.C. Thus, the
discretion vested with the Magistrate/Special Judge is
taken away and the Magistrate has to refer the private
complaint invariably to the police for investigation.
Such a situation is not contemplated by the scheme of
the Cr.P.C. The aforesaid submission also carries
sufficient force behind it. It has to be mentioned at this
juncture that the effect of directing the police to
investigate u/s 156(3) of the Cr.P.C. by the Magistrate
was also considered by the Andhra Pradesh High Court
in the case of Dr. G. Lakshminarayana Vs Inspector of
Police (1988(1) Crimes 880) and it was observed thus in
the said case.
“ If the Magistrates start referring the matters
to the police u/s 156(3) of the Cr.P.C. without
applying their minds, whether or not sanction
u/s 197(1) C.P.C. is necessary, the
consequences are likely to be bizarre, in that
public servants would become target of
unnecessary police investigation, even before
cases against them are taken cognizance of by
48
criminal courts, a situation clearly forbidden
by section197(1) Cr.P.C.”
The court went on to observe that :
“The course of action followed by the
Magistrate undoubtedly destroys the
protective umbrella of section 197(1) which
ensures independence to public officials from
functional point of view in respect of their
official acts by shielding them from being
dragged to courts.”
63. The aforesaid view read in the light of the Apex
Court’s observations in Subramanian Swamy’s case and
Paras Nath Singh’s case will therefore make it clear that
the Magistrate/Special Judge as the case may be,
cannot even take notice of the private complaint unless
the said complaint is accompanied by the sanction
order no matter whether the Special Judge acts at post-
cognizance stage or pre-cognizance stage. The very
observation of the Apex Court that the expression
‘cognizance’ in common terms it means ‘taking notice of’
and a court therefore is precluded from entertaining a
complaint and take notice of it, or exercising
49
jurisdiction, if it is in respect of a public servant alleged
to have committed during discharge of official duty,
therefore in effect implies that the door of the court will
remain shut unless the private complaint is also
accompanied by the sanction order from the
competent authority.
64. The Apex Court in the case of Birendra K. Singh
Vs State of Bihar (2008(1) SCC 498) has held while
dealing with the Section 197 of the Cr.P.C. without a
sanction order, the complaint cannot be entertained.
While dealing with the provision contained u/s 197 of
Cr.P.C., this court in the case of Sharanappa Vs
Govindareddy (1977 Crl. J.304) has held that sanction
to prosecute a public servant is a condition precedent.
65. Apart from the decisions already referred to, viz.,
Subramanian Swamy’s case and Paras Nath Singh’s
case, in the case of General Officer Commanding Vs
C.B.I. in Crl.A.No.257/11, the Apex Court, after
considering the relevant provisions relating to necessity
of sanction as contained in Section 197 of Cr.P.C.,
50
section 19 of the P.C.Act and section 7 of the Armed
Forces (Special Powers) Act, has summed up at para.55
the law thus:
“Thus, in view of the above, the law on the
issue of sanction can be summarised 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 for want of sanction.”
66. In the light of the aforesaid principles laid down by
the Apex Court, in the instant case, as the private
complaint was not accompanied by the sanction order
from the competent authority, the order of the learned
Special Judge will have to be held as without
jurisdiction.
51
67. The question that required to be addressed now is,
whether the powers under Section 482 of Cr.P.C. can be
exercised or invoked to quash the investigation.
68. Learned senior counsel Sri.Ramesh Guptha for the
1st respondent has placed reliance on several decisions
to contend that the courts do not interfere with the
investigation and the police can proceed with
investigation and submit their final report. No doubt, in
the decision referred to by learned senior counsel for 1st
respondent, the Apex Court has time and again laid
down the law that the powers of the High Court under
Section 482 of Cr.P.C. generally cannot be invoked to
quash the investigation. Even in the objections filed by
the 1st respondent, several decisions have been cited in
this regard. Nevertheless, there may be occasions when
the power under Section 482 of Cr.P.C. has to be
exercised even in the matter of the orders directing
police investigation.
69. The Apex Court in the well known case of State of
Hariyana vs. Bhajan Lal (AIR 1992 SC 604), has
52
summed up the position in regard to scope of Section
482 of Cr.P.C. and has formulated the guidelines as
regards the cases wherein such power should be
exercised. At para-108 of the decision in Bhajan Lal’s
case, the categories or kinds of cases have been referred
to, which are as under:-
1. Where the allegations made in the First
Information Report or the complaint,
even if they are taken at their face value
and accepted in their entirety do not
prima facie constitute any offence or
make out a case against the accused.
2. Where the allegations in the First
Information Report and other materials,
if any, accompanying the F.I.R. do not
disclose a cognizable offence, justifying
an investigation by police officers under
Section 156(1) of the Code except under
an order of a Magistrate within the
purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the same
do not disclose the commission of any
53
offence and make out a case against the
accused.
4. Where, the allegations in the F.I.R do not
constitute a cognizable offence but
constitute only a non-cognizable offence,
no investigation is permitted by a police
officer without an order of a Magistrate
as contemplated under Section 155(2) of
Cr.P.C.
5. Where the allegations made in the FIR or
complaint are so absurd and inherent
improbable on the basis of which no
prude person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused.
6. Where there is an express legal bar
engrafted in view of the provisions of the
Code or the concerned Act( under which
a criminal proceeding is instituted) to the
institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned Act, providing efficacious
redressal for the grievance of the
aggrieved party.
54
7. Where a criminal proceeding is
manifestly attended with malafide
and/or when the proceeding is
maliciously instituted with an ulterior
motive for wreaking vengeance to the
accused and with a view to spite him do
to private and personal grudge.
70. The Division Bench of this Court in Guruduth
Prabhu and others vs. M.S.Krishna Bhat (1999
Crl.L.J.3909), referred to earlier, has held that when the
allegations made in the complaint does not disclose
cognizable offence, the Magistrate has no jurisdiction to
order police investigation under Section 156(3) of
Cr.P.C. Such an order which is passed without
application of mind will be clearly an order without
jurisdiction and therefore, the order passed directing
police to investigate under Section 156(3) of Cr.P.C.
being passed without jurisdiction, is liable to be
quashed under Section 482 of Cr.P.C. or under Article
226 of the Constitution of India.
55
71. In the case of S.P.Shenbagamoorthy vs. Muka.
Stalin and another (2003 Crl.L.J.271), it has been held
by the Madras High Court that mere allegation without
any material in support thereof would not justify an
order for investigation under Section 156(3) of Cr.P.C.
72. Since this Court has now taken the view that the
private complaint by the 1st respondent not being
accompanied by a sanction order, cannot be entertained
at all by the Special Judge and the act of the Special
Judge therefore being without jurisdiction, a situation
therefore arisen to invoke the powers of this Court
under Section 482 of Cr.P.C. That apart, whether the
complaint allegations make out any cognizable offence
or offences, also has to be considered at this juncture.
73. While the Magistrate has the power to refer the
complaint for investigation under Section 156(3) of
Cr.P.C., the said reference can be made only by applying
mind to the contents of the complaint and the Special
Judge will have to ensure that the complaint contains
facts disclosing the offences alleged.
56
74. In the instant case, a plain reading of the
complaint would go to show that the allegations which
are directed against the petitioner are that, he as the
Chairman of the BMS Educational Trust agreed to
enhance the honorarium from Rs.1 lakh to Rs.2 lakh
per month which was earlier Rs.10,000/- per month.
The second allegation is that the huge amounts were
kept in Fixed Deposits in the name of the
Developmental Fund and the third allegation is that, the
trustees were given various facilities like providing them
with Toyota Innova cars and also giving them the benefit
of going on tours to places abroad and House rent
allowance etc. Thus, the gist of the complaint
allegations is that the public money was spent lavishly.
The complaint on the whole does not even mention
remotely that the petitioner as the Chairman has made
any pecuniary gains for himself from the aforesaid
decisions taken. No allegation whatsoever is there even
with regard to the petitioner having misappropriated the
funds of the Trust. Merely because certain amounts
were invested towards Developmental Fund, that itself
57
will not make it a case of misappropriation of funds.
Therefore, the learned Special Judge should have
considered the complaint carefully to find out as to
whether the facts mentioned in the complaint do
constitute the offences alleged.
75. In this connection, the decision of the Apex Court
in the case of M/s.Thermax Ltd. & Others vs. K.M.Johny
& others (2012 Crl.L.J.438) will have to be referred to.
That also is a case where the offences alleged were
under Sections 405, 406 and 420 r/w 34 of IPC and
after referring to the said Sections of the Cr.P.C. at
para-8 and on consideration of the complaint
allegations, the Apex Court has held thus at para-16:-
“16. The principles enunciated clearly
show that for proceedings under Section
156(3) of the Code, the complaint must
disclose relevant material ingredients of
Sections 405, 406, 420 r/w 34 of IPC. If there
is a flavour of civil nature, the same cannot be
agitated in the form of criminal proceeding”.
Again at para-29, the following observations were
made by the Apex Court:-
58
“29. The entire analysis of the complaint
with reference to the principles enunciated
above and the ingredients of Sections 405,
406, 420 r/w 34 of IPC clearly show that
there was inordinate delay and latches, the
complaint itself is inherently improbable
contains the flavour of civil nature and taking
note of the closure of earlier three complaints
that too after thorough investigation by the
police, we are of the view that the Magistrate
committed a grave error in calling for a report
under Section 156(3) of the Code from the
Crime Branch, Pune. In view of those
infirmities and in the light of Section 482 of
the Code, the High Court ought to have
quashed those proceedings to safeguard the
rights of the appellants. For these reasons,
the order passed by the Judicial Magistrate
First Class, Pimpri in C.C.No.12 of 2002 on
20.08.2007 and the judgment of the High
Court dated 11.01.2008 in Criminal Writ
Petition No.1622 of 2007 are set aside. The
complaint filed by respondent No.1 herein is
quashed”.
76. In the case on hand also, the allegations made in
the complaint, as rightly submitted by the learned
senior counsel Sri.Ashok Haranahalli, can be termed as
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having flavour of civil nature, inasmuch as, if the
complainant is not happy with the manner in which the
Trust is functioning, an option open to the complainant
is to take recourse to Section 92 of the C.P.C., but not
to resort to a private complaint under Section 200 of
Cr.P.C. As rightly submitted by the learned senior
counsel Sri.Ashok Haranahalli for the petitioner, even if
the entire complaint allegations are taken as true, in the
light of the averments made therein and those
contained in the objections filed to the writ petition,
they do not in my opinion constitute the offences alleged
against the petitioner. Therefore, when the allegations in
the complaint do not make out the ingredients of the
offences alleged, the law laid down by the Apex Court in
Bhajan Lal’s case, comes into application with all force.
77. The next contention put forward by the learned
senior counsel Sri.R.N.Narashimhamurthy as well as
the learned senior counsel Sri.Ashok Haranahalli for the
petitioner is that the petitioner having an illustrious
career behind him, has now been subjected to
prosecution on account of private complaint lodged by
60
the 1st respondent herein and this has dented his
reputation. It is argued that apart from being a senior
counsel having long standing at the Bar, the petitioner
also held the office of the Advocate General of the State
of Karnataka and Spl.P.P. in the case in
Spl.C.C.No.208/04 involving the present Chief Minister
of the Tamil Nadu, and in addition, there is added
feather in the cap, in the form of being a Member of the
Law Commission of India. Therefore the present
complaint that is lodged against the petitioner is totally
ill motivated and vindictive in nature only to harass the
petitioner.
78. Learned senior counsel for the petitioner also
referred to various writ petitions, which came up before
this Court in connection with Spl.C.C.No.208/2004. It
was argued that the request of the DVAC to engage his
own counsel in Spl.C.C.No.208/04 was turned down by
this Court in Crl.P.No.3683/2011 by this Court and
secondly, another attempt made to permit the DVAC to
take up further investigation was also rejected by this
Court in the same criminal petition and these orders are
61
also confirmed by the Apex Court. It is therefore argued
that now an attempt is being made to dislodge the
petitioner from functioning as Spl.P.P. in the
aforementioned Spl.C.C.No.208/2004. Not to be left out
of, is the submission, that the petitioner since has
resigned from the post of Advocate General, though he
continues to be a member of the Law Commission of
India. Such being the record of the petitioner, the
present complaint has therefore affected the petitioner’s
reputation, which cannot be redeemed.
79. The aforesaid submissions put forward also
carries sufficient weight behind it and in this
connection, it is also relevant to refer to two decisions.
80. In the case of State of Bihar vs. L.K.Advani ((2003)
8 SCC 361), the Apex Court has held that right to
reputation is a facet of right to life. A learned Single
Judge of this Court in the case of Prof.S.N.Hegde vs.
Lokayuktha (2004 (3) Kar.L.J.505), has also observed in
the said case that right to reputation forms part of his
fundamental right to life and the reputation of a man is
62
a very precious thing which the man cherishes more in
his life. In fact, the entire exercise which a man
undertakes in life, is to acquire fame, name and
reputation. No office which a man occupies in life is
permanent. Therefore, before the removal of the man
from that office and damage to his reputation, what he
is afraid of, is damage to the reputation. Office does not
last but reputation is permanent. In fact, the reputation
outlives the man. Therefore, the wide interpretation
placed to the word ‘life’ in Article 21 of the Constitution,
leads to inevitable inference that Article 21 of the
Constitution not only should be taken to mean
protection of one’s life and liberty while a person is
alive, but equally covers reputation of a person during
his life and after. Therefore, it can be said that right to
reputation is a part of right to life, a fundamental right
guaranteed to every citizen under Article 21 of the
Constitution.
81. The aforesaid analysis of the material placed in
the light of the law bearing on the point, leads me to the
conclusion that the impugned order of the learned
63
Spl.Judge directing investigation under Section 156(3)
of Cr.P.C. is void and without jurisdiction and as such,
investigation has to be quashed by exercising the
inherent powers of this Court under Section 482 of
Cr.P.C. At the same time, in the light of the nature of
the allegations made in the complaint, and the
complainant not even getting the sanction order from
the competent authority to prosecute the petitioner who
is a public servant, the complaint also deserves to be
dismissed by imposing cost as, according to the
petitioner’s counsel, the entire exercise has affected the
reputation of the petitioner, to a great extent.
82. Though the learned senior counsel
Sri.R.N.Narasimhamurthy and Sri.Ashok Haranahalli
also pointed out procedural errors committed by the
learned Spl.Judge in the matter of entertaining the
complaint, inasmuch as, according to learned senior
counsel, two complaints were there on record, one
presented on 24.01.2012 and second one on
07.03.2012, and it is also argued that the impugned
order mentions that the 1st complaint was withdrawn,
64
but the order sheet does not reflect the said position
and as such, the procedure followed by the learned
Spl.Judge in referring one complaint to the police for
investigation and not saying anything about the other
complaint, is something unknown to the law and it was
further being pointed out that the number given as
P.C.R.No.11/12 pertains to the case of the complaint
filed by one Kabbalegowda, by producing the relevant
complaint along with a memo to contend that the trial
court has committed serious procedural errors, in my
view, though there is sufficient substance in the
aforesaid contentions put forward, in view of my
conclusion that the complaint itself could not have been
entertained at the first instance by the learned
Spl.Judge and the order directing investigation under
Section 156(3) of Cr.P.C. therefore is without
jurisdiction and the learned Spl.Judge could not have
even taken notice of the complaint for want of sanction
order, the errors pointed out therefore though taken
note of, it does not require any specific mention that
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notwithstanding the said defects pointed out, the
complaint itself is liable to be quashed.
83. Hence, I pass the following order:-
(i) The writ petition filed under Articles 226
& 227 of the Constitution of India r/w
Section 482 of Cr.P.C. is allowed.
(ii) The order passed by the learned Special
Judge directing the investigation under
Section 156(3) of Cr.P.C. as well as the
complaint stand quashed.
(iii) The complainant is directed to pay cost
of Rs.50,000/- to the petitioner within
three months from the date of receipt of
a copy of this order.
Sd/-
JUDGE
Ckc/Dvr/Srl.