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1 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 Ashok Harnahalli, Senior Advocates, along with Sri 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 by the 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
59 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
65 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.