Research › Search › Judgment

Karnataka High Court · body

2003 DIGILAW 657 (KAR)

STATE OF KARNATAKA v. BASAVARAJ GUDDAPPA MALIGER

2003-08-07

K.BHAKTHAVATSALA, KUMAR RAJARATNAM

body2003
KUMAR RAJARATNAM, J. ( 1 ) THE State and more particularly the Superintendent of Police, Bureau of Investigation, Karnataka Lokayukta, Belgaum has preferred this writ appeal against the order of the learned single Judge, dated 25-7-2000 in WP No. 42407/1995. ( 2 ) THE petitioner in the Writ Petition was a public servant. He was the Chief Engineer (Communication and Building), Public Works Department, Dharwad. The allegation against the public servant was that while he was working in the PWD during the period 2-7-1963 to 30-11-1990 had amassed wealth disproportionate to his known source of income to the extent of Rs. 15,10977/ -. The First Information Report was registered against the public servant under S. 13 (1) (e) read with S. 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the P. C. Act ). ( 3 ) THE case was registered by the Superintendent of Police, Bureau of Investigation, Karnataka Lokayukta, Belgaum. The Police wing of the Lokayukta on registration of the FIR filed the charge sheet on 12-1-1996 for the check period from 2-7-1963 to 30-11-1990 in Spl. Case No. 1 of 1996 before the competent Court. Aggrieved by the registration of the FIR, the public servant who is the respondent in the writ appeal challenged the registration of the FIR under Article 226 of the Constitution of India. ( 4 ) THE learned single Judge relying on the observations made by the Supreme Court in the case of 'state of Karnataka v. Kempaiah' reported in AIR 1998 SC 3047 : (1998 Cri LJ 4070) quashed the proceedings on the ground that the Kempaiah's case applies to the facts of the said case. ( 5 ) BEFORE we deal with the Kempaiah's case, it would be necessary to make a reference to the judgment of the Supreme Court reported in AIR 1998 SC 2496 (C. Ranga-swamaiah v. Karnataka Lokayukta ). The Supreme Court in Rangaswamaiah's case pronounced that a police officer sent on deputation to the office of the Lokayukta by the State Govt. and if that police officer is entrusted with the powers of investigation under S. 17 of the P. C. Act, the public servant against whom the Lokayukta police are investigating the crime cannot question such entrustment particularly when there is a tacit approval of the Lokayukta for the same. and if that police officer is entrusted with the powers of investigation under S. 17 of the P. C. Act, the public servant against whom the Lokayukta police are investigating the crime cannot question such entrustment particularly when there is a tacit approval of the Lokayukta for the same. We shall deal with the law enunciated by the Supreme Court in Ranga-swamiah's case in greater detail in the latter part of our judgment. ( 6 ) WE shall now prefer to the other judgment rendered by the Supreme Court in Kempaiah's case in AIR 1998 SC 3047 : (1998 Cri LJ 4070) relied on by the learned single Judge. ( 7 ) THE Supreme Court in Kempaiah's case dealt with the definition of the word 'action' within the meaning of S. 2 (1) of the Karnataka Lokayukta Act (for short, the Lokayukta Act ). In Kempaiah's case, the Upalokayukta initiated action against the public servant and conducted raids and investigated the matter and after the investigation, the matter was handed over to the police Inspector by the Superintendent of Police to investigate the offence under S. 13 (1) (e) read with S. 13 (2) of the P. C. Act. ( 8 ) THE Division Bench of the High Court in Writ Petition No. 16857/93 and Criminal Petition No. 1155/93 by a judgment dated 2-7-1996 only quashed the investigation done by the Upalokayukta. The Division Bench did not quash the FIR registered against the public servant. The Division Bench further stated that it is open to the State to have the offence investigated in accordance with law. This matter was taken up in appeal by the State. In Kempaiah's Case. The Supreme Court in Kempaiah's case ( AIR 1998 SC 3047 ) : (1998 Cri LJ 4070) affirmed the judgment of the High Court on the ground that the Upalokayukta had no power to investigate into a crime allegedly committed by the public servant under the provisions of the P. C. Act. The Supreme Court in Kempaiah's case set aside the preliminary enquiry but did not quash the FIR. The Supreme Court in Kempaiah's case set aside the preliminary enquiry but did not quash the FIR. A reading of the Division Bench judgment of the High Court at para 29 is as follows :-" The criminal petition is allowed in part quashing the authorisation given by the Superintendent of Police by his order dated 31-5-1993 to the Police Inspector for investigating the criminal case under S. 13 (1) (e) read with S. 13 (2) of P. C. Act, 1988 against the petitioner and the investigation, if any, done by the Police Inspector in pursuance of that order. It is made clear that the F. I. R. registered against the petitioner is not quashed and that it is open to the State to have the offence investigated in accordance with law. "emphasis by the Court ( 9 ) THIS view was affirmed by the Supreme Court in Kempaiah's case. ( AIR 1998 SC 3047 : 1998 Cri LJ 4070 ). The Supreme Court pronounced as follows :-"10. Inasmuch as Upalokayukta initiated investigation against the respondent on the basis of an unsigned letter forwarded by the under-Secretary to the Governor of Karnataka to the Registrar, Lokayukta, the scope of investigations by the Upalokayukta under S. 7 (2) has to be limited to 'action' as explained above. 11. In this view of the matter, we are in entire agreement with the view expressed by the High Court. The appeals are devoid of any merit so they are dismissed"emphasis by the Court ( 10 ) THE vexed question before this Court is different. The question is whether investigation under S. 17 of the P. C. Act entrusted by the State of Karnataka to the Police Wing of the Lokayukta having the requisite rank could still be said to be vitiated because of the fact that the said officers were on deputation to the Police Wing of the Karnataka State Lokayukta at the relevant time? To answer this question it is necessary to refer to the background of this case. ( 11 ) SECRETARY to Govt. PWD made reference under S. 7 (2a) of Karnataka Lokayukta Act for an investigation by the Upalokayukta against the public servant regarding his assets and liabilities. The reference was registered under the Lokayukta Act in Comp/uplok/bgm/81/90-91. ( 12 ) THE Upalokayukta, on the said reference directed the Lokayukta Police to hold enquiry and give report. PWD made reference under S. 7 (2a) of Karnataka Lokayukta Act for an investigation by the Upalokayukta against the public servant regarding his assets and liabilities. The reference was registered under the Lokayukta Act in Comp/uplok/bgm/81/90-91. ( 12 ) THE Upalokayukta, on the said reference directed the Lokayukta Police to hold enquiry and give report. The Inspector of Police attached to the Police Wing of Lokayukta, Belgaum gave a report after holding an enquiry stating that the public servant is in possession of excess assets worth Rs. 15,10,977/ -. ( 13 ) THEREAFTER, the Upalokayukta as per S. 12 (3) of the Lokayukta Act sent a report (dated 10-5-1993) to the government. Paras 16 (i) and 16 (ii) of the said report read as follows :-"16 (I) The AGO may be prosecuted for an offence punishable under S. 13 (1) (e) read with 13 (2) of the P. C. Act, 1988 after the requisite sanction under S. 19 (2) of that Act of the competent Authority for the purpose. This recommendation is also being marked to the Director General of Police, Bureau of Investigation of the Lokayukta Organisation for such action, as he may consider appropriate in the matter. 16 (II) A Departmental disciplinary enquiry may be instituted against the AGO for acts of misconduct falling within scope of Rule 3 (1) (i) and (iii) of the K. C. S. (Conduct) Rules, 1966. " ( 14 ) EVEN after a lapse of two years from the date of sending report i. e. , 10-5-1993, the Govt. did not intimate the action taken on the said report. The Police Wing sought permission of the Upalokayukta to register a case. The Uplokyaukta on 7-11-1995 permitted the Police Wing to register a case. It is not in dispute that the State Government by a Notification dated 26-5-1986 has declared the Deputy Superintendent of Police, Office of the Lokayukta, Dharwad as a Police Station within the meaning of S. 2 (s) of the Cr. P. C. for the jurisdiction of Dharwad and Uttara Kannada Districts who is the third appellant in the writ appeal. ( 15 ) THE Investigating Officer registered a case in Cr. No. 27/95 on 11-11-1995 and obtained search warrant from Spl. Judge, Dharwar and conducted the raid on the premises of the public servant on 12-11-1995. Thereafter, on 14-12-1995, the Govt. . ( 15 ) THE Investigating Officer registered a case in Cr. No. 27/95 on 11-11-1995 and obtained search warrant from Spl. Judge, Dharwar and conducted the raid on the premises of the public servant on 12-11-1995. Thereafter, on 14-12-1995, the Govt. . issued an order under S. 19 of the P. C. Act granting permission to prosecute the public servant in a Court of law under S. 13 (1) (e) r/w S. 13 (2) of the P. C. Act in pursuance of the recommendation of the Upalokayukta. Further, the Investigating Officer filed the charge sheet in the Court on 12-1-1996 and the case was registered in Spl. Case No. 1/1996. The said charge sheet is filed for the check period from 2-7-1963 to 30-11-1990. ( 16 ) IN Kempaiah's case ( AIR 1998 SC 3047 : 1998 Cri LJ 4070), an anonymous complaint had been received from the Under-Secretary to Governor by the Lokayukta, making certain allegations against Kempaiah in him having amassed wealth disproportionate to his known source of income. The matter was referred to the Upalokayukta and the Upalokayukta took upon himself the role of an investigator and conducted search and investigation in his capacity as a Upalokayukta under the provisions of the Lokayukta Act and sought to prosecute the accused after completing the investigation for offences under the P. C. Act. ( 17 ) WHEREAS, in the case before us, the Upalokayukta referred the complaint to the Police Wing for a preliminary investigation into the allegations. Accordingly, the Police Wing after holding preliminary investigation gave a report to the Upalokayukta. ( 18 ) IT is clear from the facts of both these cases, that in Kempaiah's case ( AIR 1998 SC 3047 : 1998 Cri LJ 4070) the Upalokayukta proceeded to get the allegation investigated under S. 9 of the Lokayukta Act by authorising an officer of the Police Wing by exercising power under S. 10 of the Lokayukta Act. But, in the present case, the Upalokayukta has not ordered investigation by the Police by exercising power under the Lokayukta Act but only referred the allegations against the public servant to the Police Wing of the Lokayukta. Accordingly, the Superintendent of police has ordered for investigation under the provisions of the P. C. Act by registering a case, which is an independent investigation within the scope of the P. C. Act. Accordingly, the Superintendent of police has ordered for investigation under the provisions of the P. C. Act by registering a case, which is an independent investigation within the scope of the P. C. Act. ( 19 ) WE shall now revert to the question posed by us in the earlier part of the judgment as to whether the investigation for an offence under S. 13 (1) (e) r/w S. 13 (2) of the P. C. Act by the Police Wing of the Lokayukta if entrusted with such a power under S. 17 of the P. C. Act can be faulted? ( 20 ) THE other question that falls for consideration is whether the Police Wing of the Lokayukta if authorised under S. 17 of the P. C. Act, has independent powers to investigate and file charge sheet for an offence de hors of S. 15 of the Lokayukta Act and in what manner can the provisions of S. 17 of the P. C. Act be harmonised with S. 15 of the Lokayukta Act? In other words, can the Police Wing register a case under the provisions of the P. C. Act and investigate the matter independently de hors of the Lokayukta or Upalokayukta and file charge sheet for an offence under the provisions of the P. C. Act? ( 21 ) THE answer to these questions is no longer res integra. The answer lies in the judgment of the Supreme Court in the case of 'c. Rangaswamaiah v. Karnataka Lokayukta reported in AIR 1998 SC 2496 . The questions posed by the Supreme Court in Rangaswamaiah's case amongst others as is relevant to this case are as follows :- (A) Is the entrustment of functions under the Prevention of Corruption Act, 1988 by the Government to the police officers on deputation with the Lok Ayukta without jurisdiction? (B) In what manner can the provisions of S. 17 of the Prevention of Corruption Act, 1988 and S. 15 of the Karnataka Lok Ayukta Act, 1984 be harmonised? (C) Is the further investigation in the present cases to be continued by the police officers on deputation to the Lok Ayukta? ( 22 ) THE answer to the first question lies at paragraphs 20, 21, 22 and 23 of the Supreme Court judgment in Rangaswamaiah's case ( AIR 1998 SC 2496 ). The said paras read as follows :-"20. (C) Is the further investigation in the present cases to be continued by the police officers on deputation to the Lok Ayukta? ( 22 ) THE answer to the first question lies at paragraphs 20, 21, 22 and 23 of the Supreme Court judgment in Rangaswamaiah's case ( AIR 1998 SC 2496 ). The said paras read as follows :-"20. The next question is whether when the State Government had sent the police officers on deputation to the Lok Ayukta, it was permissible for the Government to entrust them with additional duties under the Prevention of Corruption Act, 1988? ( 23 ) THE learned single Judge as well as the Division Bench are one, as already stated, in accepting that the police officers of the State on deputation continue to remain as public servants in the service of the State Government, as long as they are not absorbed in the Lok Ayukta. This legal position is absolutely unassailable because the State of Karnataka has merely lent the services of these officers to the Lok Ayukta and the officers continue to be employees of the State. In spite of the deputation of officers with the Lok Ayukta the relationship of master and servant between the State of Karnataka and these officers does not stand terminated (State of Punjab v. Inder Singh (1997)8 SCC 372 : 1997 AIR SCW 3949 : ( AIR 1998 SC 7 ). ( 24 ) THERE is no dispute that though these officers are on deputation they are otherwise of the requisite rank as contemplated by S. 17 of the Prevention of Corruption Act, 1988 and that other formalities under that Act are satisfied for entrustment of duties under the Prevention of Corruption Act, 1988. Question is whether these police officers of the State can be invested with powers of investigation under S. 17 of the Prevention of Corruption Act, 1988 by the State under its statutory powers traceable to the same Section? ( 25 ) IT is true that normally, in respect of officers sent on deputation by the State to another authority, the lending authority should not, after deputation of its officers, entrust extra duties concerning the said lending authority to such officers without the consent of the borrowing authority. ( 25 ) IT is true that normally, in respect of officers sent on deputation by the State to another authority, the lending authority should not, after deputation of its officers, entrust extra duties concerning the said lending authority to such officers without the consent of the borrowing authority. If, however, such action is taken by the lending authority by virtue of statutory powers and such a course is not objected to by the borrowing authority, can it be said that the entrustment is without jurisdiction? In our opinion, from a jurisdictional angle, the entrustment being under statutory powers of the State traceable to S. 17 of the Prevention of Corruption Act, 1988 the same cannot be said to be outside the jurisdiction of the State Government. May be, if it is done without consulting the Lok Ayukta and obtaining its consent, it can only be treated as an issue between the State and the Lokayukta and is none of the concern of those public servants against whom these police officers on deputation are conducting the investigation. Such entrustment of duties has statutory backing and obviously also the tacit approval of the Lok Ayukta. Once there is such tacit approval of the Lok Ayukta, the writ petitioners cannot have any grievance that the Lok Ayukta ought not to have permitted such a course. "23. The other two questions are answered at paragraphs Nos. 25 and 26 of the said judgment. Paras 25 and 26 read as follows :- "25. In our view, if the State Government wants to entrust such extra work to the officers on deputation with the Lok Ayukta, it can certainly inform the Lok Ayukta of its desire to do so. If the Lok Ayukta agrees to such entrustment, there will be no problem. But if for good reasons the Lok Ayukta thinks that such entrustment of work by the State Government is likely to affect its functioning or is likely to affect its independence, it can certainly inform the State Government accordingly. If the Lok Ayukta agrees to such entrustment, there will be no problem. But if for good reasons the Lok Ayukta thinks that such entrustment of work by the State Government is likely to affect its functioning or is likely to affect its independence, it can certainly inform the State Government accordingly. In case the State Government does not accept the view point of the Lok Ayukta, then it will be open to the Lok Ayukta having regard to the need to preserve its independence and effective functioning to take action under S. 15 (4) (read with S. 15 (2)) and direct that these officers on deputation in its Police Wing will not take up any such work entrusted to them by the State Government. Of course, it is expected that the State Government and the Lok Ayukta will avoid any such unpleasant situations but will act reasonably in their respective spheres. ( 26 ) BUT once the Lok Ayukta has, as in the present case, not objected, at the threshold to such entrustment of work by the State Government to the officers on deputation, then it will not normally be reasonable for the Lok Ayukta to object to said entrustment when these officers are half way through the extra work. Such withdrawal by the Lok Ayukta at a latter stage might create various administrative problems and will only help the public servants against whom investigation is being done to raise unnecessary legal issues. Of course, in the present case, it is not the Lok Ayukta who has raised any objection but it is the public servants against whom the investigation is going on who have raised objections. As already stated, they cannot raise objections if the Lok Ayukta has not raised any objection at the threshold. The above, in our view, will take care of the independence and effective working of the Lok Ayukta and at the same time will enable the State of Karnataka if need be, to exercise its statutory powers under S. 17 of the Prevention of Corruption Act 1988. " ( 27 ) THE Supreme Court further held that as long as the deputation is with the consent of the State Govt. and with the approval of the Lokayukta, no fault can be found with the independent nature of the investigation conducted by the Police Wing. " ( 27 ) THE Supreme Court further held that as long as the deputation is with the consent of the State Govt. and with the approval of the Lokayukta, no fault can be found with the independent nature of the investigation conducted by the Police Wing. In other words, the pronouncement of the Supreme Court in Rangaswamaiah's case would lead to the inevitable conclusion that the Lokayuta or Upalokayukta 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 Lokayukta if notified as a Police Station under S. 2 of the Code of Criminal Procedure may make a preliminary investigation and if a prima facie case is made out, may register the FIR and conduct investigation in accordance with the provisions of the P. C. Act and in accordance of the Code. ( 28 ) ONCE the Police Wing takes up the investigation in accordance with law, the Upalokayukta or the Lokayukta has no power to issue directions. The Police wing acts independently as a police officer on deputation to the Lokayukta and needless to say that the Police Wing shall conduct investigation without any further directions from the Lokayukta. ( 29 ) IN other words, more significantly, the Kempaiah's case is an authority for the proposition that the Lokayukta should follow policy of "hands off" with respect to the investigation by the Police Wing under the P. C. Act. The cardinal error committed by the Upalokayukta in Kempaiah's case 1998 Cri LJ 4070) : ( AIR 1998 SC 3047 was that the Upalokayukta took upon himself the power of investigation and conducted searches not for the purpose of investigation or action under the Lokayukta Act but for conducting investigation under the P. C. Act. However, in Kempaiah's case, the Supreme Court did not quash the FIR but only quashed the investigation done by the Upalokayukta. ( 30 ) THE Rangaswamaiah's case is an authority for the proposition as stated earlier, that the Police Wing is independent if notified under S. 2 of the Cr. P. C. as a Police Station and if authorised under S. 17 of the P. C. Act to investigate offences under the provisions of the P. C. Act and the Code. ( 30 ) THE Rangaswamaiah's case is an authority for the proposition as stated earlier, that the Police Wing is independent if notified under S. 2 of the Cr. P. C. as a Police Station and if authorised under S. 17 of the P. C. Act to investigate offences under the provisions of the P. C. Act and the Code. No criminal punitive action can be taken by the Lokayukta against a public servant under the provisions of the P. C. Act. The police officer who holds independent powers of investigation although on deputation to Lokayukta can investigate an offence under the P. C. Act. ( 31 ) WE see no difference of opinion between the judgments rendered by the Supreme court in Kempaiah's case (1998 Cri LJ 4070) : AIR 1998 SC 3047 ) and Rangaswamaiah's case ( AIR 1998 SC 2496 ) as was submitted by the learned counsel for the public servant as the facts stated in both the cases are entirely different. ( 32 ) ON the contrary, the legal position is clear and unambiguous if we consider both the pronouncements of the Supreme Court. ( 33 ) WE reiterate that Kempaiah's case is an authority for the proposition that the Lokayukta or the Upalokayukta shall not investigate and to direct filing of charge-sheet for offences under the provisions of the P. C. Act and Cr. P. C. and Ranga-swamaiah's case is an authority for the proposition that the Police Wing on deputation to the Lokayukta if authorised under S. 17 of the P. C. Act and S. 2 of the Code is perfectly entitled to register a case and investigate the matter and file charge-sheet in a competent Court under the provisions of the P. C. Act. ( 34 ) THE following conditions are to be fulfilled for conducting an investigation of an offence under the provisions of the P. C. Act:- (A) The officer of the Police Wing of the Lokayukta, and not the Lokyukta or the Upalokyukta, is the only competent authority to investigate offences under the provisions of the P. C. Act if so authorised under s. 17 of the P. C. Act. (B) There must be a Notification declaring the Police Wing of the Lokayukta as a Police Station under S. 2 (s) of the Code. (C) Once the FIR is registered, the Police Wing shall act independent of the Lokayukta. (B) There must be a Notification declaring the Police Wing of the Lokayukta as a Police Station under S. 2 (s) of the Code. (C) Once the FIR is registered, the Police Wing shall act independent of the Lokayukta. (D) Once the FIR is registered by the independent Police Wing of the Lokayukta, the Lokayukta or the Upalokayukta shall have no jurisdiction over the investigation and investigation will be done strictly by the Police Wing with respect to offences under the provisions of the P. C. Act. (E) There should be a proper sanction to prosecute the public servant in conformity with Sec. 19 of the P. C. Act. ( 35 ) ). We have perused the records. ( 36 ) IN the present case, admittedly, the Upalokayukta has only requested the Police Wing to register the case. Pursuant to the request by the Upalokayukta, the investigating Wing of the Lokayukta registered the case, investigated the matter and filed the charge-sheet. We do not see any direction in the investigation by the Upalokayukta at any stage during the investigation. The investigation has been made by the Police Wing which is in conformity with the pronouncement of the Supreme Court in Ranga-swamaiah's case ( AIR 1998 SC 2496 ). ( 37 ) WE accordingly allow the writ appeal. Following the judgment of the Supreme Court in Rangaswamaiah's case ( AIR 1998 SC 2496 ) and for the reasons stated therein, we set aside the order of the learned single Judge dated 25-7-2000 passed in WP No. 42407/95. ( 38 ) HOWEVER, we make it clear that any observation made by this Court is only with respect to the jurisdiction of the Police Wing of the Lokayukta and not with respect to the merits of the case or with respect to any infraction in the investigation conducted under the provisions of the P. C. Act. ( 39 ) THIS Court places on record its appreciation for the able assistance rendered by Sri H. S. Chandramouli, learned SPP and the Registrar of Lokayukta who assisted the Court with the relevant records. ( 40 ) WE place on record our deep sense of appreciation for the tireless services being rendered by the Lokayukta under the provisions of the Lokayukta Act in weeding out corruption amongst the public servants which has become a menace in today's Society. Appeal allowed. --- *** --- .