SHRI B S YEDDYURAPPA vs. THE STATE OF KARNATAKA

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 5TH DAY OF JANUARY 2016

BEFORE

THE HON’BLE MRS.JUSTICE RATHNAKALA

WRIT PETITION NO.41228 OF 2015 (GM-RES) C/W WRIT PETITION NO.26395 OF 2015 (GM-RES) WRIT PETITION NO.26396 OF 2015 (GM-RES) WRIT PETITION NO.26397 OF 2015 (GM-RES) WRIT PETITION NO.41229 OF 2015 (GM-RES) WRIT PETITION NO.41230 OF 2015 (GM-RES) WRIT PETITION NO.41232 OF 2015 (GM-RES) WRIT PETITION NO.41234 OF 2015 (GM-RES) WRIT PETITION NO.41235 OF 2015 (GM-RES) WRIT PETITION NO.41237 OF 2015 (GM-RES) WRIT PETITION NO.41238 OF 2015 (GM-RES) WRIT PETITION NO.41239 OF 2015 (GM-RES) WRIT PETITION NO.41240 OF 2015 (GM-RES) WRIT PETITION NO.41241 OF 2015 (GM-RES) WRIT PETITION NO.41231 OF 2015 (GM-RES)

BETWEEN:

SHRI B.S.YEDDYURAPPA S/O LATE SIDDALINGAPPA AGED 72 YEARS NO.381, 6TH CROSS, 80 FEET ROAD, RMV II STAGE DOLLARS COLONY BANGALORE – 560 094.

...PETITIONER

(COMMON IN ALL PETITIONS)

(BY SRI C.V.NAGESH, SR. ADV. FOR SRI SANDEEP S. PATIL, ADV.)

2 AND:

REPRESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA BANGALORE – 560 001. …RESPONDENTS

(COMMON IN ALL PETITIONS)

(BY SRI KRISHNA S.DIXIT, ASG FOR R2; SRI A.G.SHIVANNA, AAG A/W SRI B.VISWESWARAIAH, HCGP FOR R3; SRI VENKATESH P.DALWAI, SPL.PP FOR R1

….IN W.P. NOS.41228/2015, 26395/2015, 26396/2015, 26397/2015, 41229/2015, 41230/2015, 41232/2015, 41234/2015, 41235/2015, 41237/2015 AND 41239/2015; SRI B.S.PRASAD, SPL.PP FOR R1 …IN W.P. NOS.41238/2015; 41240/2015; 41241/2015 AND 41231/2015)

***

THESE WRIT PETITIONS

ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA

3 READ WITH SECTION 482 OF CR.P.C., PRAYING TO DECLARE THAT THE REPORT OF THE COMPTROLLER AND AUDITOR GENERAL OF INDIA ON DENOTIFICATION OF LAND BY GOVERNMENT AND ALLOTMENT OF SITES BY BANGALORE DEVELOPMENT AUTHORITY BEARING REPORT NO.3 OF THE YEAR 2012 VIDE ANNEXURE-B CANNOT BE THE BASIS FOR REGISTRATION OF CRIMINAL CASES AGAINST THE PETITIONER HEREIN ANNEXURE-B AND QUASH THE F.I.Rs IN CRIME NOS.38/2015 DATED 19.06.2015, 42/2015 DATED 20.06.2015, 39/2015 DATED 19.06.2015, 44/2015 DATED 20.06.2015, 40/2015 DATED 19.06.2015, 43/2015 DATED 20.06.2015, 52/2015 DATED 26.06.2015, 53/2015 DATED 27.06.2015, 45/2015 DATED 20.06.2015, 46/2015 DATED 22.06.2015, 48/2015 DATED 22.06.2015, 49/2015 DATED 23.06.2015, 50/2015 DATED 23.06.2015, 54/2015 DATED 27.06.2015 AND 47/2015 DATED 22.06.2015 RESPECTIVELY, REGISTERED BY THE RESPONDENT -POLICE VIDE ANNEXURE-A.

THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 16/12/2015 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-

O R D E R

The petitioner of the above cases is the former Chief Minister of Karnataka and all these petitions originate from a complaint lodged by one Jayakumar Hiremath before the Lokayuktha seeking action on the basis of the Comptroller and Auditor General of India’s report (‘C.A.G. report’ for short) in finding irregularities in the action taken by the petitioner

4 and the co-accused in denotifying the various lands from acquisition.

5 the very same petitioner viz., Jayakumar Hiremath seeking action in respect of the C.A.G. report No.3/2012 in W.P.No.8347/2013 (GM-RES-PIL) was dismissed as not pressed.

6 of the Karnataka Lokayuktha Act (‘the Act’ for short), the matter was referred to the Director General of Police, Criminal Investigation Department, Economic Offences and Special Units, for investigation and to report. It took almost one year for the DGP, CID to submit his report in the matter. The report also appears to have mentioned that, in respect of 35 cases pertaining to de-notification of the land pointed out by the CAG in his report, the prosecution is already launched in some cases and some cases are pending in Lokayuktha Special Court. On the note put by the Registry, the Lokayuktha ordered on 11.6.2015 thus: “Approved and officer in charge of investigation shall submit progress report through proper channel to ADGP every fortnight. ADGP shall ensure expeditious investigation.”

7 and IPC respectively). Jayakumar Hiremath’S signature is found on the FIR also as the complainant. Annexed to the FIR are found, the complaint of Jayakumar Hiremath, the CIG report and case summary prepared by the Police Inspector. At this stage itself, it needs to be appreciated that in his Writ Petition No.15502/2013, the petitioner did not make specific allegation as to under which provision of law the alleged offences fall, either under the I.P.C. or under the provisions of P.C.Act. As per para-5 of the order in the above W.P. No.15502/2013 to the query of the Court in this regard, learned Counsel practically threw up his hands with the submission that ‘it is for the investigating agency to identify the persons who could be arraigned for specific offences under the relevant provisions of law’.

In W.P.No.41228/2015 (Crime No.38/2015) pertaining to 6 acres 10 guntas of land in Sy.Nos.171/3, 172/5 and 172/6 of Kothanur village, the petitioner colluded with the

8 landlords, BDA and other Department Officers indulged in their illegal transaction and gave up the land from acquisition.

In W.P.No.26395/2015 (Crime No.42/2015) pertaining to land in Sy.No.251 measuring 6 acres 18 guntas of Halagevaderahalli Village, Bangalore South Taluk, gave up from acquisition of land by conniving with the landlords and officials of other Department.

In W.P.No.26396/2015 (Crime No.39/2015) pertaining to land in Sy.Nos.5/1 and 6/3 measuring 1 acre 17 guntas of Bilekahalli village, Bangalore South Taluk. The petitioner herein with a malafide intention to help the landlords even before any decision could be taken in the de-notification Committee, took over the file from the Member Secretary and ordered de-notification.

In W.P.No.26397/2015 (Crime No.44/2015) pertaining to 270.01 acres of land in Sy.No.1 of G.B.Kaval Village, gave up acquisition of the land by conniving with BDA and other officials by involving himself in their illegal transaction against the recommendation of the de-notification committee.

In W.P.No.41229/2015 (Crime No.40/2015) pertaining to 6 acres 31 guntas of land in Sy.No.24 of Kothanur village, gave up acquisition of the land by colluding with the landlords, BDA and officials of other Departments, by placing reliance on false information that the land is still in the physical possession of the landlord.

In W.P.No.41230/2015 (Crime No.43/2015) pertaining to Sy.No.1/1 measuring 3 acres 33 guntas of Lottegollahalli village, denotified the land in respect of a person as against the original Khatedar and said other persons subsequently purchased the land after final notification against the K.L.R.T. Act though 5 acres of said land was already denotified and the case was closed as early as on 23.4.2010.

In W.P.No.41232/2015 (Crime No.52/2015) pertaining to land in Sy.No.46 measuring 16 acres 9 guntas of Nagarabavi Village, Bangalore North Taluk, gave up from acquisition 25 guntas of land against the report of the Under Secretary of BDA and gave up from acquisition 25 guntas of land though the possession of the land was already taken.

In W.P.No.41234/2015 (Crime No.53/2015) pertaining to 3 acres 18 guntas of land in Sy.No.78/1 of Kothanur village, gave up acquisition of the land on a false information that already buildings are existing on the land and BDA cannot form the layout, by ignoring the public interest to help the GPA Holder of the land owner; he misused his official position and treated the case as a special case, though there was no notification under Section 16(2) of the Land Acquisition Act and without compensation to the landlords.

In W.P.No.41235/2015 (Crime No.45/2015) pertaining to land in Sy.Nos.100/1 and 100/2 of Challakere village, by involving with the co-accused against the report that there are legal hurdles to de-notify, gave up from acquisition.

In W.P.No.41237/2015 (Crime No.46/2015) pertaining to land measuring 2 acres 36 guntas in Sy.Nos.104/2, 104/3 nd 104/4 of Uttarahalli village, Bangalore South Taluk, by conniving with the landlords and others against the recommendation of the Urban Development Department ordered to give up from acquisition.

In W.P.No.41238/2015 (Crime No.48/2015) pertaining to land in Sy.Nos.39/2B, 50/2, 51/1, 55/1, 57/1, 61, 64/1 and 66/1 of Rachenalli Village, Bangalore East Taluk, ordered to give up from acquisition without mentioning the survey number and the extent of the land against the report of the Urban Development Department, that except 1 acre 30 gutnas out of 3 survey numbers, remaining land is not taken into possession and can be given up from acquisition.

In W.P.No.41239/2015 (Crime No.49/2015) pertaining to 2 acres 21 guntas of land in Sy.No.86/2 of Thanisandra village, Bangalore East Taluk, against the notice put up by the Under Secretary, Deputy Secretary of Urban Development Department by conniving with the landlords involved in the illegal transaction and gave up the land from acquisition.

In W.P.No.41240/2015 (Crime No.50/2015) pertaining to Sy.Nos.7, 6/2A, 6/2B totally 1 acre 20 guntas of land in Guddadahalli village, Hennur-Bellary Road, Bangalore North Taluk, against the report of the Chief Secretary of Urban Development ordered to give up the land from acquisition.

12 Thereafter the land was purchased by land developer from the original landlord.

In W.P.No.41241/2015 (Crime No.54/2015) against the public interest, he misused his official position by treating it as a special case and ordered to give up acquisition of land in Sy.No.23 measuirng 2 acres 10 gutnas of Hulimavu village, Begur Hobli, Bangalore South Taluk.

In W.P.No.41231/2015 (Crime No.47/2015) pertaining to 3 acres 10 guntas of land in Sy.No.77/1 and 2 acres in Sy.No.77/2 of Valagerehalli village, Kengeri Hobli, Bangalore South Taluk, illegally ordered to give up the land from acquisition against the report of the Urban Development Department.

13 cognizable offence is informed by the complainant. There being no specific allegation of demand or request by the petitioner to obtain any valuable thing for his pecuniary advantage, the case could not have been registered in respect of the offence under Section 13(1)(d) of the P.C.Act. In the absence of any property being entrusted to him, case could not have been registered in respect of the offence under Section 13(1)(c) of the P.C.Act and 409 of IPC. In the absence of any allegation of deception to induce delivery of the property, case under Section 420 of IPC could not have been registered against him. When there is no allegation that the transfer of land has occurred during the pendency of the acquisition proceedings, case could not have been registered for the offence under Sections 3, 4, 8 read with Section 9 of the K.L.R.T. Act, 1991. The registration of the case is in violation of Sections 9, 10, 11 and 12 of the Karnataka Lokayuktha Act. On the very same allegation, a complaint registered having been dismissed by the competent court, the respondent could not have registered the FIR on the same allegation.

14 7. Each of the petition is filed for a writ in the nature of Certiorari to quash the FIRs and to declare that the report of the C.A.G. of India cannot be the basis for registration of the criminal case. It is a mater of record that originally the petition was filed by arraying the Karnataka Lokayuktha Police as sole respondent. However, the C.A.G. of India was later impleaded as respondent No.2 and the State as respondent No.3.

15 the petitions are to be considered from the premise of the registration of the FIR by Lokayuktha Police without challenge to the order of the Lokayuktha in forwarding the complaint to the Lokayuktha Police for investigation. 9. Sri.C.V.Nagesh, learned Senior Counsel appearing for the petitioner submits that, the power of the Comptroller and Auditor General of India emanates from Articles 148 to 151 of the Constitution of India and further regulated by the Comptroller and Auditor General’s (Duties, Powers and Conditions of Service) Act, 1971, the report of the CAG would be forwarded to the President or the Governor, as the case may be and will be deliberated by the Public Accounts Committee (‘PAC’ for short). The PAC after obtaining the information from the concerned Ministers and Departments, would prepare a separate report and both the reports would be placed before the Parliament or the State Legislative Assembly. The report of the CAG is for the exclusive deliberation of the House and is considered to be the property of the House. No other authority has any right to pick up extracts from the CAG report and initiate proceedings either

16 civil or criminal. As observed by the Apex Court, the CAG report cannot be considered as a ‘gospel truth’ and it is a document, which has to be deliberated upon by the House which has the discretion to either accept the recommendations or to reject them. That being the position, the respondent/Police could not have registered the FIR on the basis of certain remarks in CAG report (reliance is placed on the judgment of the Apex Court in (2013) 7 SCC 1 in the matter of Arun Kumar Agrawal –vs- Union of India and Others).

17 the development scheme of the acquiring body or the beneficiary itself stood lapsed. The denotification orders passed by the petitioner are not so far set aside or held illegal by any Court of law. In its administrative jurisdiction, the Government can drop the land from acquisition if the actual possession of the land is not taken over by the Government; the error of judgment of the authority can be subjected for judicial scrutiny but criminality cannot be attributed. In the light of the judgments of the Apex Court, in (1) (2012) 9 SCC 257 (Subramanian Swamy –vs- A.Raja) and (2) (1976) 1 SCC 700 (B.N.Bhagdey –vs- M.D.Bhagwat), the orders passed without routing the same through the Denotification Committee, no criminal proceeding can be initiated since the Denotification Committee has no statutory footing.

18 opinion given by the then Advocate General, the notification under Section 16(2) of the Land Acquisition Act is not sufficient to hold that the land stood vested with the Government in the absence of taking over actual possession of the land. In such cases, it would be lawful for the Government to drop the acquisition proceedings even in such case where Section 16(2) notification has been published. In the absence of proof of demand or request from the public servant for a valuable thing or primary advantage, the offence under Section 13(1)(d) of the P.C.Act cannot be held to be made out.

19 the Minister, whereby it was held that there shall be an element of deception or fraudulently or dishonestly inducing another person to deliver any property.

20 cognizable offence, it deserves to be quashed in accordance with the ruling of the Apex Court in Patai Alias Krishna Kumar –vs- State of Uttar Pradesh reported in (2010) 4 SCC 429. The FIR registered is neither on the information given by the complainant nor on the suo moto report of the Police Officer. The very registration of the FIR beyond the procedure contemplated under the Code of Criminal Procedure (‘the Code’ for brevity) is liable to be set aside. Reliance is placed on (2014) 2 SCC 1 in the matter of Lalita Kumari –vs- Government of Uttar Pradesh. One Hunsur Chandrashekar had filed a similar complaint in P.C.R.No.15/2013 against the petitioner and others. Said complaint came to be rejected by the Lokayuktha Court holding that no case is made out. The order of de-notification dated 12.1.2010 came to be withdrawn by the Government on 4.11.2011. Aggrieved by the order of withdrawal, the land owners approached this Court in W.P.Nos.42792-99/2011, 42800/2011 and 42831-34/2011. This Court set aside the Government Order withdrawing the earlier de-notifications and upheld the order passed by the petitioner dropping the

21 acquisition proceedings. When the de-notification order is endorsed by this Court, it is illegal and improper to register the FIR and investigate into the very same action.

22 duties even of the judiciary; he should have been certainly as independent as the judiciary; he ought to have far greater independence than the judiciary itself”.

23 Governor for laying before the Parliament/State Legislature. The Audit Report will be referred to P.A.C. and the said Committee has to examine the report with the assistance of CAG and the Government Department concerned. A system of selection of paragraphs for detailed examination has been developed for convenience. After examination, the Committee prepares its own report and presents it to the Speaker of the House. The Ministries/Departments concerned are required to intimate the Committee the collective action taken and the proposed action on all the paragraphs contained in the reports of the CAG. Once the report is placed before the President/Governor of the State, it is their constitutional obligation to place the same before the Parliament/State legislature. Once the report enters the House, it becomes the exclusive property of the House for discussion and debate which again would be regulated by the Rules of Procedure and Conduct of Business, in this case in Karnataka Legislative Assembly by virtue of Article 208(1) of the Constitution of India. The CAG report was placed before the Governor on 21.11.2012 and before the Assembly on 12.12.2012. As on

24 the relevant date, 5 Chapters of the Report are discussed by the P.A.C., still 16 Chapters are yet to be taken for discussion. Since the report is in the process of consideration, no other authority can act upon said report, should any other authority adversely comment upon its veracity/correctness in as much as the House will be prejudiced by such a comment.

25 Co.Ltd. and Another wherein it was held that where there is a conflict of two decisions of equal strength, the later judgment should be followed. The High Court of Sikkim, in the matter of Subba Associates –vs- Union of India has held the CAG Report as legislature paper and the property of the House and its members. Same view is taken by the High Court of Gauhati in M.S.Associates –vs- Union of India (2005). As per the judgment of the High Court of Delhi in W.P.No.8502/2014 Sarvesh Bisaria –vs- Union of India and Others, the role of the CAG reports is to enable the legislature to oversee the functioning of the Government and it is for the legislature to take action on the basis of CAG reports or to direct the Government to take action on the basis thereof and till the legislature has not so directed, the High Court cannot direct any action to be taken on the basis of CAG report.

26 one side and the Lokayuktha Police and the State on the other side.

27 Lokayuktha Institution being empowered to investigate the offences under the P.C.Act, 1988 and IPC, took up the matter and registered the cases. No particular source is required to register the FIR if such source discloses commission of cognizable offence. The source of information received from CID disclosing the name of the petitioner along with other accused, who have participated in commission of offence, is the basis of registration of FIRs, the details found in Column 9 of the FIR are found in CID report. Hence, Lokayuktha Police are justified in registration of the cases.

28 and the details are not the Encyclopedia of the crime alleged. A full fledged investigation only would reveal whether the offences are committed or not and appropriate report will thereafter be filed. It is too premature to claim either way. The investigation will be the domain of Police.

(2) 1996(2) BLJR 869 in the matter of Sushil Kumar Modi and Others –vs- State of Bihar and Others and connected cases, whereby the Division Bench of the High Court of Patna directed CBI investigation in the Public Interest Litigation which was filed based on a letter of the CAG regarding misappropriation by the accused. Said judgment was upheld by Apex Court vide Judgment reported in (1996) 3 SCC 682 (State of Bihar and Another –vs- Ranchi Zila Samta Party

29 and Another) and connected cases. In those cases, the grievance of the writ petitioners was fraudulent expenditures and drawls in Animal-Husbandry Department of the State Government. While ordering time scheduled investigation, the cases which were in the process of investigation by State Police were ordered to be suspended in the meantime by the High Court. In appeal said order was maintained with a modification. Entire investigation by the State Police, which was in progress, was brought to the fold of C.B.I. with further modification for Court monitored investigation. In respect of the allegation in each of the FIR, written objection statement is filed by the respondent/Lokayuktha Police. Factual matrix or sufficiency of evidence for the prosecution cannot be looked into to nullify the prosecution. The Apex Court in its judgment reported in 2013 AIR SCW 6660 in the matter of Vinod Raghuvanshi –vs- Ajay Arora and Others has cautioned “don’t kill the still born child”. The petitions are to be dismissed and the investigation shall not be curtailed at this stage.

31 1) Copy of the complaint 2) CAG report Summary of the case, is annexed to each FIR.

When it is said ‘copy of the complaint’, what is furnished to the petitioner on his request for the copy is, not a written complaint by the complainant or his oral statement recorded by the SHO/IO, but copy of a complaint dated 7.8.2013 submitted by Jayakumar Hiremath to the then Lokayuktha whereby he had sought action in respect of ‘various issues highlighted in CAG Report No.6 of the year 2010-11 as well as CAG report No.3 of the year 2012 relating to misuse of authority with corrupt motive and thereby causing heavy loss to the State exchequer’. None was arrayed as accused in the said complaint. In the body of the said complaint, the circumstances that led him to approach the Lokayuktha under Section 7 of the Lokayuktha Act (the Writ Petitions filed by him in W.P.No.15502/2013 and W.P.No.8437/2013, the disposal of the Writ Petitions with liberty to avail alternative and efficacious remedy in the form of Section 7 of Karnataka Lokayuktha Act 1996 is narrated.

32 24. As it emanates from the certified copies of the order sheet maintained by the Registry of Lokayuktha, considering the gravity of allegation in the complaint and also the CAG report, by the order of the Lokayuktha the matter was referred to DGP, CID under Section 15(3) of the Act for investigation and report. After the report of the DGP, CID was submitted, Lokayuktha granted permission to file a case under the P.C. Act. The ADGP of the Police Wing attached to Lokayuktha was ordered to ensure expeditious investigation through Officer in charge of investigation. That is how the present FIRs are registered by the respondent/Lokayuktha Police.

33 “154. Information in cognizable cases. – (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2)…………………………………………………..”.

34 of law to register a criminal case. To assume that the SHO on his own satisfaction about commission of a cognizable offence registered the case and took up the matter for investigation, the FIR prepared by him will not substantiate such assumption. It is not a FIR registered by the Police suo moto on receipt of credible information. The Apex Court in the matter of Lalita Kumari’s (supra) clinched the issue thus: “97. The Code contemplates two kinds of FIRs: the duly signed FIR under Section 154(1) is by the informant to the officer concerned at the police station. The second kind of FIR could be which is registered by the police itself on any information received or other than by way of an informant [Section 157(1)] and even this information has to be duly recorded and the copy should be sent to the Magistrate forthwith. The registration of FIR either on the basis of the information furnished by the informant under Section 154(1) of the Code or otherwise under Section 157(1) of the Code is obligatory. The obligation to register FIR has inherent advantages:

97.1. (a) It is the first step to “access to justice” for a victim.

97.2. (b) It upholds the “rule of law” inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State.

97.3. (c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law.

35 97.4. (d) It leads to less manipulation in criminal cases and lessens incidents of “antedated” FIR or deliberately delayed FIR”.

That is why a duly registered FIR is the sacrosanct at the entry point to initiate a criminal case, which is missing here.

36 28. But the situation herein is entirely different. ‘…..for a message or communication to be qualified to be a first information report there must be something in the nature of a complaint or accusation or at least some information of the crime given with the object of setting the police or criminal law in motion (as per Patai Alias Krishna Kumar (supra). As such, the Lokayuktha is not invested with jurisdiction to probe into the offences under the Penal laws and a complaint lodged before the Lokayuktha cannot take over the colour of information of offence under Section 154(1) of the Code. It is a mistaken notion to say that Lokayuktha Police is obliged to abide by the order of the Lokayuktha to register and investigate the offences under the various laws quoted in the FIR.

37 Yunus Zia’s case (supra), while referring to the judgment in the matter of State of Punjab –vs- Inder Singh (AIR 1978 SC 7)]. The independent nature of investigation conducted by the Police Wing of Lokayuktha fell for consideration of the Division Bench of this Court in State of Karnataka, by Chief Secretary and Others –vs- Basavaraj Guddapa Maliger reported in 2003 Crl.LJ 4252. Referring to the judgments of C.Rangaswamaiah and others –vs- Karnataka Lokayuktha and others ((1998)6 SCC 66) and State of Karnataka –vs- Kempaiah ((1998)6 SCC 103), the Division Bench held that the ‘the pronouncement of Supreme Court in Rangaswamaiah’s case (supra) would lead to the inevitable conclusion that the Lokayuktha or Upalokayuktha may request the Police Wing of a Police Officer of the competent jurisdiction to consider registering the case under the provisions of the P.C.Act, then the Police Wing of the Lokayuktha if notified as a Police Station under Section 2 of the Code of Criminal Procedure may make a preliminary investigation and the prima facie case if made out may register the FIR and conduct investigation in accordance with the provisions of the P.C.Act

38 and in accordance with the Code.’ That explains the space between Lokayuktha and Lokayuktha Police attached to Lokayuktha Wing. As noticed above, Police Officers in our State working on deputation in Lokayuktha Police Station, their identity is with the State Police not with the Lokayuktha. There is no statutory provision in any of the Penal laws in respect of which the FIRs are registered, reconciling the procedure contemplated in Section 154(1) of the Code. That being so, the Lokayuktha Police ought not to have yielded to register the FIRs by blowing away the mandatory procedure. The irregularity/illegality committed in registration of the FIRs, without there being any material in the nature of information goes to the very root of the matter which cannot be cured by whatever means.

Reg.Point No.2: 30. Each of the FIR apart from the copy of the complaint (submitted to the Lokayuktha) is appended with the copy of the CAG report. The summary of the prosecution case annexed to the FIR refers to irregularity committed by the petitioner and co-accused in reference to the particular case.

39 Of course, the Apex court had directed investigation on the basis of the CAG report (in the matter of CPIL (supra) popularly identified as 2G Spectrum case) and endorsed investigation ordered by the High Court based on a letter of the CAG in Sushil Kumar Modi’s case (supra). But now it is to be recalled that Jayakumar Hiremath filed W.P.No.15502/2013 seeking investigation into various issues highlighted in the CAG report No.6/2010-11 without naming anybody as accused and without making specific allegation under any statutory provision and the said writ petition was dismissed on the ground of availability of alternative remedy. His writ petition in W.P.No.8347/2013 arraying the present petitioner and another former Chief Minister of Karnataka Sri.H.D.Kumarawamy on the allegation of illegal land de- notification was disposed as not pressed. The High Court in its writ jurisdiction ordering probe in respect of an allegation on the basis of CAG report is one thing and the Lokayuktha Police taking CAG report on his file as a document to launch a criminal case is another thing. There is no semblance between two circumstances.

40 31. The author of the CAG report is the Comptroller and Auditor General of India appointed under Article 148 in Chapter V of the Constitution of India, which reads thus: “148. Comptroller and Auditor-General of India – (1) There shall be a Comptroller and Auditor-General of India who shall be appointed by the President by warrant under his hand and seal and shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court.

(2) Every person appointed to be the Comptroller and Auditor-General of India shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.

(3) The salary and other conditions of service of the Comptroller and Auditor-General shall be such as may be determined by Parliament by law and, until they are so determined, shall be as specified in the Second Schedule;

Provided that neither the salary of a Comptroller and Auditor-General nor his rights in respect of leave of absence, pension or age of retirement shall be varied to his disadvantage after his appointment.

(4) The Comptroller and Auditor-General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office

41 (5) Subject to the provisions of this Constitution and of any law made by Parliament, the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor-General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor-General.

(6) The administrative expenses of the office of the comptroller and Auditor-General, including all salaries, allowances and pensions payable to or in respect of persons serving in that office, shall be charged upon the Consolidated Fund of India”.

42 the Legislature of the State. He discharges his function through Accountant General of the respective State. The audit extends to all the expenditures to ascertain whether the monies shown in the accounts as having been disbursed were legally available for such disbursement and whether the expenditure confirms to the authority which governs it. He also examines the decisions, which have financial implications including the propriety of the decision making.

43 by selecting the paragraphs from the audit report for detailed examination. During the course, the Ministers and the Executives of the Departments will be called upon to take corrective action and to furnish a proposed action to be taken in respect of the audit report. Thereafter the report of the Committee will be placed before the House. In the matter of Arun Kumar Agrawal (supra), it was observed that the CAG report is always subject to scrutiny by the Parliament and the Government can always offer its view point on the report of the CAG. In Paras-67 and 68 it was held thus: “67. The question that is germane for consideration in this case is whether this Court can grant reliefs by merely placing reliance on the CAG’s Report. The CAG’s Report is always subject to parliamentary debates and it is possible that PAC can accept the ministry’s objection to the CAG Report or reject the report of the CAG. The CAG, indisputably is an independent constitutional functionary, however, it is for Parliament to decide whether after receiving the report i.e. PAC to make its comments on the CAG’s Report.

44 the various issues. For instance, we cannot as such accept the CAG report in the instance case”.

45 constitutional possession of the said report. The Division Bench of the Gauhati High Court in M.S.Associates –vs- Union of India (Manu/GH/0322/2005) addressing similar issue regarding ‘information’ within the meaning of Section 132 of the Income Tax Act, though was of the opinion that the CAG report is initially meant for the Parliament/Legislature, and undoubtedly a property of the House, further held that for the purpose of starting an investigation into evasion of tax, the source of information is not material; when the legislature itself has not restricted the authorities concerned under Section 132 supra from acting upon the information which may be derived from the report of the CAG which has not been laid/discussed by the State legislature, it would be realistic to hold that the legislative intendment is that even if the authority concerned received the information about evasion of tax from the report of the CAG, there is no legal impediment on the part of the authorities concerned to act upon such information.

46 advanced Information Technology with the enablement conferred on the citizen of the country to have easy access to information by way of Right to Information Act, 2005, it is unrealistic to presume CAG report as a confidential document, till it meets finality in the Parliament or the Legislature. The Code no where contemplates a Police Officer acting under Section 157 of the Code to publish the source of information which drives him to register a suo moto complaint in respect of a cognizable offence. Likewise it is always open to a concerned/aggrieved informant to approach the jurisdictional Police even on suspicion about commission of a cognizable offence, to be dealt in accordance with Section 154(1) of the Code. But the concern is, availing the CAG report as the basis for registration of the criminal case subjecting the same to the test of trial in a criminal court which has no jurisdiction to adjudicate the question raised in the CAG report. The CAG report wherefore since not available for judicial scrutiny, in my considered opinion, cannot be used as a foundation to build up a criminal case and cannot be made a part of investigation. As such, if an informant

47 has a reasonable suspicion about the commission of cognizable offence he has every right to move the criminal law into motion by way of a formal information oral/writing to the concerned Court and the concerned Police if warranted can ascertain truthfulness or otherwise of the information so received by holding preliminary enquiry within the period stipulated by the Apex Court as at Lalitha Kumari’s case (supra) and then register the criminal case if the enquiry probabalises commission of a cognizable offence.

“55……………… It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts to an offence, it must be promptly investigated and the offender against whom a prima facie case is made out should be prosecuted expeditiously so that the majesty of law is upheld and the rule of law vindicated. It is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law”.

Further, in Subramanian Swamy –vs- Manmohan Singh (Ganguly J.) reported in (2012) 3 SCC it is observed thus:

“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 the 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”.

49 law into motion being the first step for registration of a criminal case, inroading of the procedure laid down by rule of law is not at all permissible. An attempt is made to justify the action of Lokayuktha Police that the case is not registered solely on the report of C.A.G. but also on the independent enquiry conducted by the C.I.D. Police on the direction of the Lokayuktha. But this justification does not stand to reason, neither the Lokayuktha nor the C.I.D. Police are the de facto complainants here. The matter having gone out of the premises of Lokayuktha Act, the Lokayuktha Police Station being the Police Station as defined under Section 2(s) of the Code, registration of the case shall be either under Section 154(1) of the Code, if it is on an information by an informant or under Section 157(1) of the Code, if it is the instance of Police Officer registering the case on his suo moto report. The F.I.Rs. in question neither in consonance with Section 154(1) nor 157(1) of Cr.P.C. cannot be sustained even after noticing the fundamental defects in their formulation. Allowing the investigation to continue on these defective F.I.Rs. is by itself abuse of process of law. These F.I.Rs. since not registered on

50 information about a cognizable offence, in my considered opinion, it is not required to go further to the merit of the allegations made against the petitioner or the defence offered by him to the said allegation. It is also not required to call upon the petitioner to array Jayakumar Hiremath or the co- accused as respondents in these petitions. Law on the question of ultimate jurisdiction of this Court in exercise of power vested under Article 226 of the Constitution of India and Section 482 of the Code is well settled from long lineage of judicial pronouncements commencing from State of Haryana and others –vs- Ch.Bhajan Lal and others reported in AIR 1992 SC 604. The F.I.Rs. not disclosing commission of cognizable offence in the form of first information are liable to be quashed keeping open the larger questions raised in these criminal petitions.

All these Petitions are allowed. The F.I.Rs. in Crime Nos.38/2015, 42/2015, 39/2015, 44/2015, 40/2015, 43/2015, 52/2015, 53/2015, 45/2015, 46/2015, 48/2015, 49/2015, 50/2015, 54/2015 and 47/2015 respectively, are quashed. However, it is made clear that C.A.G. Report shall

51 not be used against the petitioner if any action is contemplated against him in future.

All the contentions are kept open.

Sd/- JUDGE

KNM/-