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2015 DIGILAW 1051 (KAR)

M. P. Renukacharya v. State of Karnataka

2015-09-04

RATHNAKALA

body2015
ORDER : Rathnakala, J. 1. Aggrieved by the order of the Special Court for Lokayuktha at Davangere in P.C.R. No. 2/15 in referring the complaint for investigation to the Superintendent of Police, Lokayuktha, Davangere, under Section 156(3) of Cr.P.C. vide order dated 2.5.2014 at Annexure-A, the petitioners/accused are before this Court. 2. The complainant/second respondent sought indulgence of the Court to take cognizance of the offence punishable under Sections 13 and 13(1)(d) and (e) of the Prevention of Corruption Act and for the offences punishable under Sections 120-B and 420 of IPC and such other offences punishable under the provisions of the Indian Penal Code against the accused/petitioners herein. 3. It is apparent from first page of the complaint itself that the complaint was presented directly to the Court on 2.5.2014 and on the very same day, the order of reference as at Annexure-A is passed. 4. Sri. Hashmath Pasha, learned Counsel appearing for the petitioners submits that, the order of the Special Court in referring the matter for investigation is basically perverse and in violation of the dictum of the Apex Court in the matter of Mrs. Priyanka Srivastava and Another v. State of Uttar Pradesh and Others reported in AIR 2015 SC 1758 . It was not as if the order under challenge was passed prior to the judgment of the Apex Court stated supra. This judgment was of 19.3.2015 and was directed to be communicated among the learned Magistrates through the concerned Sessions Court and concerned Registrars of the High Court, so that they may remain more vigilant and diligent, while exercising power under Section 156(3) of Cr.P.C, the impugned order passed subsequently on 2.5.2014 in not abiding the guideline of Mrs. Priyanka Srivastava's case (supra) is vitiated and illegal. Moreover, the way the complaint is received and impugned order immediately passed indicates that the Court without application of mind has referred the matter for investigation without application of mind, mechanically, is without jurisdiction. It does not qualify to the requirement enunciated by the Apex Court and deserves to be quashed. 5. The Apex Court in Anil Kumar and Others v. M.K. Aiyyappa and Another reported in 2014 CRI.LJ. I, held that a direction to the police to investigate shall not be given mechanically. The Magistrate has to apply his mind and his order must reflect what made him to order investigation. 5. The Apex Court in Anil Kumar and Others v. M.K. Aiyyappa and Another reported in 2014 CRI.LJ. I, held that a direction to the police to investigate shall not be given mechanically. The Magistrate has to apply his mind and his order must reflect what made him to order investigation. It was also held that sanction to prosecute is a mandatory requirement and Section 19(3) of the Prevention of Corruption Act, 1988, does not have effect of making it directory. The offences alleged under Sections 120B and 420 of IPC, is mandatory which requires prior sanction of the Government and same is lacking in this case. 6. Learned Counsel took me through para Nos. 26 and 27 of the judgment of the Apex Court reported in AIR 2015 SC 1758 in the matter of Mrs. Priyanka Srivastava and Another v. State of Uttara Pradesh and Others, whereby procedure to invoke the jurisdiction under Section 156(3) of Cr.P.C. is laid. This judgment is ordered to be circulated to the Magistrates through their respective High Courts, so that they can remain more vigilant and diligent, while exercising the power under Section 156(3) of Cr.P.C. The guidelines as at Para Nos. 26 and 27 of the judgments as follows:-- "26. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same. 27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR." 7. Learned Counsel while concluding, submits that in the absence of anything reflecting application of mind of learned Judge while referring the matter for police investigation and as to whether the mandatory requirement of Section 197 of Cr.P.C. was required or not and it is an illegal order without jurisdiction. Learned Counsel while concluding, submits that in the absence of anything reflecting application of mind of learned Judge while referring the matter for police investigation and as to whether the mandatory requirement of Section 197 of Cr.P.C. was required or not and it is an illegal order without jurisdiction. Hence, the order of investigation and the consequential investigation/proceedings is vitiated and liable to be quashed. 8. Sri. Venkatesh P. Dalwai, learned Special Public Prosecutor for Lokayukta submits that subsequent to the investigation, the Investigating Officer has collected enough of material in support of the allegation made in the complaint and they need another six months to conclude the investigation. He also submits that the judgment of the Apex Court in Mrs. Priyanka Srivatsava case, is in respect of a complaint filed under Section 156(3) of Cr.P.C. but not a private complaint as contemplated under Section 200 Cr.P.C. The investigation since already in progress, though there is nothing on record highlighting that before ordering investigation, Investigating Officer read over complaint and was convinced, in the absence of anything to the contrary it shall be inferred that being convinced with the possibilities of commission of the cognizable offence, he has referred the matter for investigation and at this stage, the intervention of this Court under Section 482 of Cr.P.C. may not be required. 9. Sri M.S. Shyamsundar, learned Counsel for the complainant submits that Mrs. Priyanka Srivatsava does not lay down any rule of thumb in the matter of investigation. The observation made at para Nos. 26 and 27 of the judgment is only directory. The facts involved in the case of Mrs. Priyanka Srivatsava and the facts on hand both differ. Complainant herein is a public spirited person, who is nothing to gain or loose by false implication of the accused persons. Since there is enormous difference between the asset declared in his first affidavit filed to the Election Commission in the year 2004 and the affidavit is filed in the year 2013, it necessitated him to file this complaint but the appellant before the Apex Court in Mrs. Priyanka Srivatsava had complained against the Bank Officials in respect of the offence punishable under SARFAESI Act. Through out they were unsuccessfully litigating to avoid repayment of loan. Loss to public exchequer and history of the case impressed the Apex Court to make observation as at para Nos. 26 and 27. Priyanka Srivatsava had complained against the Bank Officials in respect of the offence punishable under SARFAESI Act. Through out they were unsuccessfully litigating to avoid repayment of loan. Loss to public exchequer and history of the case impressed the Apex Court to make observation as at para Nos. 26 and 27. Even otherwise, if it were to be held that the complaint presented before the Special Court ought to have been accompanied with an affidavit of the complainant, it is not an incurable defect. Even now, the defect can be cured with a direction to the complainant to file his affidavit in support of his complaint allegation. From the date of ordering of the investigation till date much has flown and the investigation having found vital material against the accused persons, if the investigation is set aside for technical reasons, that would defeat the interest of justice. 10. The attempt of the State to distinguish present case from that of Mrs. Priyanka Srivatsava on the ground that it was a complaint under Section 156 of Cr.P.C. whereas, present one is filed under Section 200 of Cr.P.C. is misconceived. There is no different species in private complaints. A private complaint is a private complaint whether it quote Section 156 of Cr.P.C. or Section 200 of Cr.P.C. While in our State, litigants file private complaint under Section 200 of Cr.P.C. in certain other States we are informed that they quote Section 156 of Cr.P.C. It is obvious that the complaint was not accompanied with the affidavit of the complainant. The order of investigation sounds that on mere presentation of complaint, it is referred for police investigation. The judgment of the Apex Court in Mrs. Priyanka Srivastava was pronounced on 19.03.2015 and it was ordered to be circulated to all the Magistrates of the Nation. Now neither the complainant who is also an advocate nor the Court can express ignorance of the dictum of the Apex Court. Since the order passed by the learned Special Judge which is subsequent to the judgment of Mrs. Priyanka Srivastava is patently illegal and cannot be sustained. The complainant has to abide by the guidelines of the Apex Court and follow the procedure required for presentation of a private complaint before the concerned Court. Thereafter it is for the Court to act in accordance with the established principles reiterated in the case of Anil Kumar and Mrs. Priyanka Srivastava is patently illegal and cannot be sustained. The complainant has to abide by the guidelines of the Apex Court and follow the procedure required for presentation of a private complaint before the concerned Court. Thereafter it is for the Court to act in accordance with the established principles reiterated in the case of Anil Kumar and Mrs. Priyanka Srivastava and pass necessary orders. 11. Accordingly, the petition is allowed. Consequently, FIR and consequential proceedings is also quashed. Liberty is reserved to the complainant to pursue his complaint in accordance with the procedure laid down by the Apex Court vide judgments supra. All contentions are left open to both the parties. In view of the disposal of the main petition, I.A. No. 1/2015 does not survive for consideration. Hence, it stands disposed of.