IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.7876 OF 2013 BETWEEN:
SRI. F.R. JAMADAR, I.A.S S/O LATE HAGI NABI SAB AGED ABOUT 57 YEARS RESIDING AT HOUSE NO.406 5TH CROSS, 2ND BLOCK HRBR LAYOUT, KALYAN NAGARA BANGALORE-560 046 … PETITIONER (BY SHRI. SATISH BHAT, ADVOCATE FOR SHRI. M.S. BHAGWAT, ADVOCATE) AND:
1. KARNATAKA LOKAYUKTHA POLICE REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE, POLICE DIVISION KARNATAKA LOKAYUKTHA HASSAN-573 201 2. SRI. C.S. JAYARAM S/O SHIVAPPA AGED ABOUT 59 YEARS CHOLENAHALLI VILLAGE KASABA HOBLI, CHANNARAYAPATTAN TALUK HASSAN DISTRICT-573 116 ... RESPONDENTS (BY SHRI. B.S. PRASAD, SPECIAL PUBLIC PROSECUTOR FOR R1; R2-SERVED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE PRIVATE COMPLAINT BEARING PCR NO.44/2013 AND ORDER DATED 22.05.2013 PASSED BY THE PRL. DIST. AND S.J., HASSAN AND FIR VIDE CR. NO.48/2013 (ANNEXURE-A TO C) AND ALL FURTHER PROCEEDINGS THEREON PENDING ON THE FILE OF THE PRL. DIST. AND S.J., HASSAN, IN SO FAR AS THE PETITIONER IS CONCERNED (ACCUSED NO.2).
THIS CRIMINAL PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard Shri Satish Bhat, learned advocate for the petitioner and Shri B.S. Prasad, Special Public Prosecutor for Lokayuktha. None appears for respondent No.2 – complainant.
2. Respondent No.2 filed a private complaint in PCR No.44/2013 before Special Judge for Lokayuktha alleging inter alia that petitioner and others had committed offences punishable under Sections 13(1)(c)(d)(e) & 13(2) of Prevention of Corruption Act, 1988, and Sections 409 & 420 read with 34 of IPC by misappropriating a sum of Rs.4,49,640/- while petitioner was working as Chief Executive Officer in Zilla Panchayath, Hassan. Though, an audit objection was raised, no action was taken against the accused.
3. Learned advocate for the petitioner submitted that in view of the law laid down in Anil Kumar & Others Vs.
M.K. Aiyappa and another1, unless prior sanction is obtained by the complainant, learned Magistrate cannot order investigation under Section 156(3) of Cr.P.C.
4. Learned Special P.P. for Lokayuktha does not dispute that prior sanction was not obtained before filing the private complaint.
5. I have carefully considered the rival contentions and perused the records.
6. Supreme Court of India in Anil Kumar & Others (supra) has held as follows:
“… Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (supra).”
(Emphasis supplied) 1 CRL.A.Nos.1590-1591 of 2013 7. In view of the law laid down by the Hon’ble Supreme Court, learned Magistrate could not have invoked power under Section 156(3) of Cr.P.C. to refer the matter for investigation.
8. Resultantly, this petition merits consideration and it is accordingly allowed. Consequently, order dated 22.5.2013 in PCR No.44/2013 passed by the Principal District and Sessions Judge, Hassan, and all further proceedings thereon are quashed, so far as the petitioner is concerned.
No costs.
Sd/- JUDGE AV