IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA WRIT PETITION Nos.11667-675/2013(GM-RES) BETWEEN:
1. SRI ANANTHASWAMY S/O CHIKKAHONNEGOWDA AGED ABOUT 57 YAERS CHIEF ENGINEER, SOLID WASTE MANAGEMENT N R SQUARE, BANGALORE.
2. SRI JAYARAM S/O D THIMMAIAH AGED ABOUT 58 YEARS SUPERINTENDENT ENGINEER MALLESHWARA DIVISION (WEST ZONE) BANGALORE.
3. SRI KENCHAPPA S/O LATE K LINGAIAH AGED ABOUT 55 YEARS EXECUTIVE ENGINEER BASAVANAGUDI DIVISION (SOUTH ZONE) BANGALORE.
4. SRI GOVINDARAJU S/O VENKATAMADAIAH AGED ABOUT 50 YEARS SUPERINTENDENT ENGINEER EAST DIVISION UTILITY BUIDLING BANGALORE.
5. SRI MOHAN DAS S/O H C THAMMAIAH AGED ABOUT 50 YEARS CHIEF ENGINEER MAJOR ROADS DIVISION BBMP HEAD OFFICE N R SQUARE BANGALORE.
6. SRI RANGAIAH S/O LATE GUDDAIAH AGED ABOUT 50 YEARS EXECUTIVE ENGINEER YELAHANKA ZONE BANGALORE.
7. SRI GANGADHARA SWAMY S/O T G RANGASHAMAIAH AGED ABOUT 52 YEARS SUPERINTENDENT ENGINEER MAHADEVAPURA ZONE BANGALORE.
8. SRI PARAMESHWAR S/O M LINGAIAH AGED ABOUT 55 YEARS SUPERINTENDENT ENGINEER BOMANAHALLI ZONE (BANGALORE SOUTH) BANGALORE.
9. SRI VIJAYAKUMAR S/O LATE DR N M LINGEGOWDA AGED ABOUT 50 YEARS EXECUTIVE ENGINEER (PROJECT-I) RAJARAJESHWARI NAGAR ZONE BANGALORE. ... PETITIONERS (BY SRI V SREENIDHI, ADV.) AND:
1. STATE BY KARNATAKA LOKAYUKTHA POLICE BANGALORE CITY DIVISION THROUGH ITS PUBLIC PROSECUTOR BANGALORE 2. SRI P R RAMESH S/O LATE P RUDRAMURTHY AGED ABOUT 52 YEARS R/O NO.144, LALBAGH FORT ROAD PARVATHIPURAM BANGALORE-560 004. ... RESPONDENTS (BY SRI MALLIKARJUN C BASAREDDY, ADV. FOR R1 SRI RAMESH CHANDRA, ADV. FOR R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE PRIVATE COMPLAINT IN PCR NO.63/2012 PRESENTED BEFORE THE COURT OF THE XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY VIDE ANNEXURE-A AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners are aggrieved by the order passed by the XXIII Additional City Civil and Sessions Judge, Bangalore referring the complaint filed by respondent No.2 for investigation under Section 156(3) of Cr.P.C. by the Superintendent of Police, Karnataka Lokayukta, Bangalore Urban.
2. Heard Sri.V.Sreenidhi, learned counsel appearing for the petitioners and Sri. Ramesh Chandra, learned counsel appearing for respondent No.2. Learned counsel for respondent No.1 is absent. Perused the grounds urged in the petition and the documents produced along with the petition.
3. The petitioners were working as Engineers in Bruhath Bangalore Mahanagara Palike (‘BBMP’, for short). The 2nd respondent, erstwhile Mayor of the Bangalore Mahanagara Palike lodged a complaint against the petitioners and other accused persons seeking action for the offences punishable under Section 13(1)(c) of Prevention of Corruption Act, 1988 (‘Act’, for short).
4. The allegations made against the petitioners are that during their tenure as public servants in BBMP, certain illegalities were committed by the petitioners in the identification of the Buffer Zone, land fill sites and in awarding tenders for disposal of waste generated in the city of Bangalore.
5. The contention of the learned counsel for the petitioners is that the complaint does not contain any specific allegations attracting the offence punishable under section 13(1)(c) of Prevention of Corruption Act. The Special Judge has passed the impugned order without satisfying himself as to whether the allegations made in the complaint make out the ingredients of the offence punishable under section 13(1)(c) of Prevention of Corruption Act. The learned counsel has taken me through the complaint lodged under Section 200 of Cr.P.C. and would contend that no specific allegations are made against the petitioners in the matter of awarding of contract or with regard to the role played by the petitioners in those transactions. Hence, the impugned order is liable to be quashed. He further contended that the proceedings are initiated against the petitioners without prior sanction as required under Section 19 of Prevention of Corruption Act,1988 and therefore the learned Special Judge had no jurisdiction to order investigation into the alleged charges.
6. In support of his arguments, the learned counsel has placed reliance on the decision of the Hon’ble Supreme Court in the case of L.Narayana Swamy Vs. State of Karnataka and others reported in (2016) 9 Supreme Court Cases 598.
7. These submissions are seriously contested by the learned counsel for the 2nd respondent with reference to the para No.25 of the complaint which reads as follows:
“25. The foregoing facts shows manipulation by the accused 1 and 5 to 12 for making personal gain by abuse of their official status:
a) The Request For Proposal is for clearance of 100% waste and nothing else. But, by authorizing the contractor, by the terms of the tender at later stage, to sell 30% of dry waste after segregation, the contractor is permitted, clandestinely under the terms and conditions of the tender, to make personal profit by sale of 30% of dry waste. This income is shared by the contractors and the accused No.1 and 5 to 12 by secret terms of negotiations. Having regard to the huge margin of profit to the contractor, the respondents gain illegally, by corrupt practice, a huge percentage of profit. With the cost of dry waste as Rs.10/- per KG daily sale of such dry waste brings the contractor a wobbling Rupees one crore every day. The lions shares goes to the accused persons.”
8. The learned counsel for the respondents would submit that the allegations made in the complaint prima facie disclose the involvement of the petitioners in awarding contract with an intention to favour beneficiaries. The material produced by the complainant clearly indicates that as against the requirement of 45 auto tippers, 15 push carts, 2 compactors, 6 tipper lorry, 8 supervisors, 135 pourakarmikas which were the subject matter of the tender, the beneficiaries submitted tender for 19 tippers, 11 push carts, 2 compactors, 6 tipper lorries, 4 supervisors and 45 pourakarmikas for a total amount of Rs.24,57,610/- as against tender amount of Rs.35,18,000/- which has been accepted by the petitioners, thereby showing undue favour to the beneficiaries and causing loss to BBMP.
9. The learned counsel for the respondent would further submit that the contention of the petitioners that the allegations made against the petitioners are bald and general in nature which are not supported by any documentary evidence is contrary to the bulk of documents available in proof of this change and therefore having regard to the magnitude of the offence, the matter warrants investigation in the interest of the society at large.
10. I have considered the above submissions and have perused the records. Even though, the learned counsel for the petitioners has contended that the allegations made against the petitioners do not prima-facie disclose the offence under Section 13(1)(c) of the Act, yet the impugned order reveals that the learned trial judge has considered the specific averments made in the complaint and with reference to the facts and figures has satisfied himself that the said allegations constitute the offence under Section 13(1)(c) of the Act.
11. A reading of the complaint discloses that large scale illegality has been committed in awarding the tender. A specimen of such illegality is culled out by the trial court in page 19 of the impugned order, which clearly speaks out the magnitude of the offence, which in my opinion is necessarily required to be investigated. While referring the matter under Section 156(3) of Cr.P.C., the Court is required to satisfy whether the allegations made against the petitioners make out the offence which requires to be investigated by the police. Such satisfaction has been arrived at by the Special Judge and is reflected on the face of the record, I do not find any perversity or illegality whatsoever in the impugned order warranting interference by this Court under Section 482 of Cr.P.C.
12. Insofar as the sanction for prosecution of the petitioners is concerned, the legal issue is seized by the Hon’ble Supreme Court and the issue is referred for consideration by the larger Bench. This Court has considered the similar contention in W.P.Nos.3207- 3208/2014 dated 29.04.2014 and has held that prior sanction is not necessary for investigating offences at precognisance stage. Even otherwise, in the case on hand, on consideration of the entire material on record, the alleged offence does not appear to have been committed in discharge of the official duties entrusted to the petitioners. The requirement of sanction arises only when the alleged acts are committed in discharge of the official duty and not otherwise. The specific allegations against the petitioners are that the petitioners have secretly negotiated with the tenderer for securing monetary advantage (para-2) of the complaint). Section 197 of the code or Section 19 of the P.C.Act does not afford protection to the public servant against such acts. Therefore, having regard to the nature of allegations and the character of the evidence available in proof thereof, in my view, at this stage, the question of obtaining sanction does not arise at all. The contention urged by the learned counsel for the petitioners in this regard is rejected.
Accordingly, petitions stand disposed of.
JS/-
Sd/- JUDGE