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W.Ps. No.14492-14493/2019 C/W W.P. No.18046/2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR WRIT PETITIONS No.14492-14493 OF 2019 C/W WRIT PETITION No.18046 OF 2019(GM-RES)
IN W.Ps. No.14492-14493 OF 2019
BETWEEN :
K. KRISHNA MURTHY S/O LATE KRISHNAIAH AGED ABOUT 54 YEARS R/AT NO.10, RAGHAVANAGARA AVALAHALLI NEW TIMBER YARD LAYOUT MYSURU ROAD BANGALORE-560 036 ... PETITIONER
(BY SHRI. C.V. SUDHINDRA, ADVOCATE)
AND :
STATE OF KARNATAKA REPRESENTED BY LOKAYUKTHA POLICE REPRESENTED BY STATION HOUSE OFFICER M.S.BUILDING BANGALORE-560 001 REPRESENTED BY SPP FOR LOKAYUKTHA
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HIGH COURT COMPLEX BANGALORE-560 001 ... RESPONDENT
(BY SHRI. VENKATESH S. ARABATTI, ADVOCATE) . . . .
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF THE CR.P.C PRAYING TO QUASH THE ORDER DATED 07.09.2018 IN SPL.C.C.NO.461/2016 ON THE FILE OF THE XXIII CITY CIVIL AND SPECIAL JUDGE BANGALORE URBAN (CCH-24) VIDE ANNX-A AS CONTRARY TO LAW AND ALLOW THE APPLICATION FILED BY THE PETITIONER UNDER SECTION 17A OF THE PREVENTION OF CORRUPTION ACT, 1988 AND ETC.,
IN W.P. No.18046 OF 2019
BETWEEN :
RAJANNA K S/O LATE KENCHEGOWDA AGED ABOUT 59 YEARS R/A NO.4, 1ST MAIN ROAD NANJAPPA BLOCK KEMPEGOWDA NAGARA BANGALORE-560 019 ... PETITIONER
(BY SHRI. C.V. SUDHINDRA, ADVOCATE)
AND :
STATE OF KARNATAKA REPRESENTED BY LOKAYUKTHA POLICE M.S.BUILDING BANGALORE-560 001 REPRESENTED BY SPP FOR LOKAYUKTHA HIGH COURT COMPLEX BANGALORE-560 001 ... RESPONDENT
(BY SHRI. VENKATESH S. ARABATTI, ADVOCATE) . . . .
W.Ps. No.14492-14493/2019 C/W W.P. No.18046/2019
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF THE CR.P.C, PRAYING TO SET ASIDE THE ORDER DTD:11.2.2019 VIDE ANNEXURE-A PASSED IN SPL.C.C.NO.407/2016 BY THE XXIII CITY CIVIL AND SPECIAL JUDGE FOR LOKAYUKTHA, BANGALORE AS CONTRARY TO LAW AND ALLOW THE APPLICATION FILED BY THE PETITIONER UNDER SECTION 17A OF THE PREVENTION OF CORRUPTION ACT, 1988 AND ETC.,
THESE WRIT PETITIONS, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 31.07.2019, COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:-
ORDER
These two petitions involve a common question whether protection under Section 17A of the Prevention of Corruption Act, 1988 (for short ‘the Act’) is available to the petitioners charged under Section 13(1)(e) of the Prevention of Corruption (Amendment) Act, 1988 for possession of assets disproportionate to known source of income. Hence, they are disposed of by this common order.
Petitioners in both petitions have challenged orders passed by the learned Special Judge rejecting
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their respective interlocutory applications filed under Section 17A of the Act.
Brief facts in W.Ps. No.14492-93/2019
Based on a source report dated 21st August 2013, Lokayuktha Police registered FIR No.13/2013 on 29th August 2013 alleging possession of assets disproportionate to petitioner’s known source of income. After investigation, charge sheet has been filed alleging possession of disproportionate assets to the tune of 77.04% more than the legitimate income of the petitioner. He is facing trial in Special C.C. No.461/2016 for offences punishable under Section 13(1)(e) and 13(2) of the Act.
On 21st August 2018 an application was moved before the learned Special Judge under Section 17A of the Act to close the case for non compliance of the said provision. Learned Special Judge by order dated 7th September 2018 has dismissed the said application.
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Brief facts in W.P. No.18046/2019
Based on a source report dated 21st January 2013 Lokayuktha Police registered FIR No.14/2013 on 6th February 2013 alleging possession of assets disproportionate to petitioner’s known source of income. After investigation, charge sheet has been filed alleging possession of disproportionate assets to the tune of 151.96% more than the legitimate income of the petitioner. He is facing trial in Special C.C. No.407/2016 for offences punishable under Section 13(1)(e) and 13(2) of the Act.
On 4th September 2018 an application was moved before the learned Special Judge under Section 17A of the Act to close the case for non compliance of the said provision. Learned Special Judge by order dated 11th February 2019 has dismissed the said application.
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Shri.C.V.Sudhindra, learned Advocate for the petitioners in both the cases urged following contentions: • that Section 17A has been inserted into the Act on 26th July 2018; • that Section 17A must be construed as having retrospective effect because:
(a) it is a beneficial legislation in favour of accused and therefore, it should enure to the benefit of the public servant;
(b) in the 69th Report on Prevention of Corruption (Amendment) Bill, 2013 the Parliamentary Standing Committee has opined that the Investigating Agencies have misused Section 13(1)(d)(iii) of the Act;
(c) that the Amendment has been brought to protect innocent and honest officials and law presumes that a public servant is innocent and honest unless proved contrary beyond reasonable doubt; • that the FIR registered is not in consonance with Section 154 Cr.P.C. inasmuch as the person who provides information is not shown as the complainant;
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• that the Source Report is collected by the Police Officers on deputation who takes instructions from the Lokayuktha; • if the benefit of Section 17A of the Act is not extended to the petitioners, it amounts to violation of Article 14 of the Constitution. He placed reliance on the following authorities:
(i) T.Barai Vs. Henry Ah Hoe And Anr.1 and contended that the Rule of beneficial construction should be applied to mitigate the rigour of law. (ii) The Commissioner of Income Tax Vs. Ranka and Ranka2
(iii) All Manipur Pensioners Association Vs. State of Manipur3
(iv) B.A.Srinivasan Vs. Station House Officer and another4 and contended that the amendment has been brought to the Act by substitution and not by insertion and
1 (1983)1 SCC 177 2 2012 (284) ELT 185 (KAR): Manu/KA/2649/2011 3 Civil Appeal No.10857/2016 4 Crl.R.P. No.834/2015 dated 08.08.2018-High Court of Karnataka
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therefore, protection under Section 17A must enure to petitioners’ benefit; and
(v) General Finance Co. And others Vs. Assistant Commissioner of Income Tax, Punjab5
Shri.Venkatesh S.Arabatti, learned Standing Counsel for the Lokayuktha, opposing the petition urged following contentions:
• that FIR has been registered after obtaining approval from the Superintendent of Police as required under Section 17 of the Act;
• that Section 17A of the Act is not applicable to the facts of petitioners’ cases inasmuch as the offences alleged against them are not relatable to ‘any recommendation made’ or ‘decision taken by public servant in discharge of his official duties’;
5 (2002)7 SCC 1
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He relied upon following authorities (i) Dr.Subramanian Swamy Vs. Dr.Manmohan Singh and another6 paragraph 68 (ii) Hitendra Vishnu Thakur and Ors. Vs. State of Maharashtra and Ors.7 paragraphs 26 & 27
I have carefully considered rival contentions and perused the records.
Undisputed facts of the case are, petitioners have been charged with offences under Section 13(1)(e) of the Act as it stood prior to the amendment which read as follows: 13(1) A public servant is said to commit the offence of Criminal misconduct,-
(a) (b) (c) (d) ……..
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or
6 (2012)3 SCC 64 7 (1994)4 SCC 602
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property disproportionate to his known sources of income. Explanation.- For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.”
Petitioners have presented applications invoking Section 17A of the Act and it reads as follows: “17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.
(1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval-
(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;
(b) in the case of a person who is or was employed, at the time when the offence was alleged to
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have been committed, in connection with the affairs of a State, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed: PROVIDED that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person: PROVIDED FURTHER that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.” (Emphasis Supplied)
A plain reading of Section 17A clearly indicates that it is applicable where offence is relatable to any ‘recommendation made’ or ‘decision taken’ in discharge of official duty without prior approval.
Admittedly, petitioners have been charged for possession of assets disproportionate to their known sources of income. They are not charged of any offence
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relatable to any recommendation made or decision taken. Therefore the contention that Section 17A is applicable to petitioner’s case is misplaced.
Shri.Arabatti has adverted to paragraph No.68 in the case of Dr.Subramaniam Swamy wherein the Hon’ble Supreme Court of India has held as follows: “68. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end.
Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti- corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.”
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The ratio of above authority is applicable in cases where interpretation of a provision is considered. In the instant case, the allegation is with regard to possession of assets disproportionate to the known source of income. Section 17A is applicable to cases where offence is relatable to ‘any recommendation made’ or ‘decision taken’. The language employed in Section 17A is unambiguous. Therefore, protection under Section 17A shall not be available to petitioners.
In view of the above discussion Section 17A is not applicable to the facts of petitioners’ cases. Resultantly, these petitions must fail and they are accordingly dismissed. No costs.
Sd/-
JUDGE SPS