Lokayuktha; Dr. Y Bhaskar Rao Vs. State [Karnataka High Court, 22-11-2016]

Lokayukta Act, 1984 (Karnataka) – Section 6 – Though the Lokayuktha is an independent statutory functionary, he can be removed from office by an order of the Governor, subject of course to the procedure prescribed under Section 6 of the KL Act.

Lokayukta Act, 1984 (Karnataka) – Section 15(3) – Whether the Lokayuktha would be protected under the Judges (Protection) Act, 1985? Held, It is not possible to accept that the Lokayuktha is protected under the Judges (Protection ) Act, 1985. A plain reading of Section 2 and Section 3(1) of the said Act would indicate two requirements before the petitioner could claim to be protected thereunder. Under the provisions of the KL Act, the Lokayukta does not render any judgments, as he has no occasion to decide any lis. Secondly, the protection under Section 3 is available only in respect of such any act committed while acting in the discharge of his official or judicial duty or function.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 22ND DAY OF NOVEMBER 2016

BEFORE: THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

WRIT PETITION No.49558 OF 2016 (GM-RES)

BETWEEN: Dr. Y. Bhaskar Rao, Son of Late Raghunath Rao, Aged about 77 years, No.5-9-22/63/3, Adarsha Nagar, Opposite to Birla Mandir, Hyderabad-63. …PETITIONER (By Shri S.M.Chandrashekar, Senior Advocate for Shri Brijesh Patil, Advocate) AND: 1. State of Karnataka, Through Special Investigating Team, Represented by Special Public Prosecutor, Bangalore – 560 001. 2. Mr. M.N.Krishnamurthy, Son of Muninanjappa, 2 Aged about 51 years, Executive Engineer, Office of the Zilla Panchayath, Kanakapura Road, Banashankari, Bangalore. … RESPONDENTS (By Shri Madhusudhan R. Naik, Advocate General along with Shri C.H.Jadhav, Senior Advocate for Shri S.V.Vadavadgi, Special Public Prosecutor; Shri D. Nagaraja, Additional Government Advocate, for Respondent No.1; Shri Shankarappa, Advocate for Respondent No.2)

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, read with Section 482 of the Code of Criminal Procedure, 1973 praying to quash the prosecution sanction order dated 20.7.2016 vide Annexure-K issued by his Excellency Governor of Karnataka; quash the order taking cognizance dated 10.8.2016 at Annexure-J, passed by LXXVIII Additional City Civil and Sessions Judge at Bangalore and consequently quash the additional charge sheet dated 3.8.2016 at Annexure-C submitted by the first respondent on the file of LXXVIII Additional City Civil and Sessions Judge at Bangalore. This Writ Petition having been heard and reserved on 2.11.2016 and coming on for pronouncement of Orders this day, the Court delivered the following:-

ORDER

The petitioner in this case is arraigned as accused no.7, along with six others, for offences punishable under

# Sections 8, 9 & 10 of the Prevention of Corruption Act, 1988

(Hereinafter referred to as the ‘PC Act’, for brevity) and

# Sections 119, 120(B), 201, 202, 217, 385, 419 read with Section 36 and 109 of the Indian Penal Code, 1860

(Hereinafter referred to as the ‘IPC’, for brevity), in case number Spl.CC 429/2015 on the file of the court of the LXXVIII Additional City Civil and Sessions Judge and Special Judge for cases under the PC Act, Bangalore.

2. The case was initially registered for offences punishable under Sections 384,419 & 420 read with Section 120B of the IPC against one Ashwin Rao, the son of the petitioner and others and a charge sheet was filed against them on 15-9-2015. It is thereafter that the petitioner had been implicated and an additional charge sheet was filed against him on 3-8-2016, alleging offences as aforesaid.

The petitioner was the Karnataka State Lokayuktha. He assumed office on 13-2-2013. In the wake of the investigation and proceedings that followed in the above case, he had tendered his resignation on 7-12-2015.

The facts, as seen from the material available, have unfolded in the following manner. On 4-5-2015, one Ashok Kumar, one of the accused is said to have called up the complainant, M.N. Krishnamurthy, an Executive Engineer, Zilla Panchayath, Bangalore Urban, and is said to have told him to come to the Office of the Lokayuktha. It transpires that on the same day, Krishnamurthy is said to have gone there and had met Ashok Kumar. And it is alleged that a demand was made on him to pay a bribe of Rs.1 crore, if he was to be saved from a raid proposed to be conducted against him by the Lokayuktha, to unearth ill-gotten wealth.

On 6-5-2015, it transpires that Krishnamurthy was again called upon to go over to meet Ashok Kumar, which he is said to have ignored.

On 7-5-2015, Krishnamurthy is said to have met Smt.Sonia Narang, Superintendent of Police, Karnataka Lok Ayuktha, Bangalore City Division and had revealed the above incident. Smt.Narang is said to have suggested that he should make a complaint in writing. Krishnamurthy is said to have dithered and pleaded for time to think about it.

On 11-5-2015 Smt.Narang is said to have filed a report regarding Krishnamurthy’s revelation to the Additional Director General of Police, Lokayuktha (ADGP). He, in turn, is said to have forwarded the report to the Registrar, Lokayuktha, one H. R.Deshpande, as on 12-5-2015.

It is only after the ADGP requested Deshpande by a letter dated 20-5-2015, that he is said to have placed the report of Narang before the Lokayuktha (Petitioner).

The Lokayuktha is said to have directed the Inspector General of Police, one P.Mohanty, to conduct an enquiry as regards the allegations by Krishnamurthy, as on 9-6-2015.

On 17-6-2015, a complaint is said to have been filed by one Janadhikara Sangharsha Parishad before the Upa Lokayuktha-II, Shri. Subash Adi, alleging that the Lokayuktha had not taken any prompt action on the report by Smt.Narang. On 23-6-2015, Shri Adi is said to have passed an order directing Smt.Narang to conduct an investigation in to the allegations by Krishnamurthy. This is said to have been brought to the attention of the Lokayuktha by Deshpande , the Registrar, on 26-6-2015. The Lokayuktha is said to have held a meeting with the Upa Lokayuktha – I, Shri S.B.Majage and is said to have decided to entrust the investigation, into the allegations by Krishnamurthy, to one Shri Chandrashekar, Joint Commissioner (Crime), Central Crime Branch, Bangalore. And is said to have directed Mohanty and Narang to hand over the investigation files to Chandrashekar. On 27-6-2015, Chandrashekar is said to have conveyed to the Lokayuktha, his inability to conduct the investigation on account of personal reasons.

On 28-6-2015, the Registrar, Deshpande, acting on the instructions of the Lokayuktha, is said to have requested the Chief Secretary, Government of Karnataka to establish a Special Investigation Team to investigate the allegations of Krishnamurthy, as it is said to have been felt by the Lokayuktha that ASsince allegations pertained to the very office of the Lokayuktha, it would be prudent to entrust the investigation to an outside agency.

On 29-6-2015, a report is said to have been submitted to Smt.Narang by the Inspector entrusted with the investigation into the allegations by Krishnamurthy, pursuant to her direction, which had been issued on 26-6-2015, before the Lokayuktha had withdrawn the files from her. The details furnished in the report included a reference to the petitioner’s son, Yerabati Ashwin Rao.

On 29-6-2015, Krishnamurthy is said to have approached a Deputy Superintendent of Lokayuktha Police, Bangalore and lodged a written complaint of the very allegations made earlier, inter alia, to state that Ashwin Rao had demanded Rs.1 crore as bribe to ensure that the Lokayuktha Police desisted from conducting a raid. This complaint is said to have been placed before Smt.Narang on 30-6-2015. On the same day, the Government is said to have passed an order constituting a Special Investigation Team, under the leadership of an Additional Director General of Police, one Kamal Pant.

On 1-7-2015, Narang is said to have directed that a criminal case be registered on the statement made in writing, by Krishnamurthy. And a case is said to have been registered in Crime no.56/2015 by the Lokayuktha Police, for offences punishable under Sections 8 of the PC Act and Sections 384, 419 & 420 read with Section 120(B) of the IPC.

On the same day, namely, 1-7-2015, Ashwin Rao is said to have preferred a writ petition before this court in its writ jurisdiction, in WP 27468/2015, questioning the investigation being conducted against him, and this court had passed an interim order, on the very day, stopping all further proceedings against him by the police. The same day, the Registrar – Deshpande is said to have gone on leave for 10 days.

On 10-7-2015, the Special Investigation Team (SIT) is said to have taken over the investigation of the case in Crime no.56/2015, on the orders of the State Government.

On 17-7-2015, Deshpande is said to have opted for voluntary retirement. The following arrests are made thereafter – N. Ashok Kumar on 20-7-2015, Shankare Gowda and Srinivasa Gowda on 21-7-2015 and Syed Riyazatulla on 26-7-2015.

The Lokayukta after going on leave on 27-7-2015 and seeking several extensions thereafter is never said to have returned to office thereafter.

On successive charge sheets being filed in the several cases that were registered, the following cases are pending before the Special Judge, – Spl.CC 429 /2015, Spl.CC 444/2015, Spl. CC 491/2015, Spl.CC.493/2015 and Spl.CC 592/2015.

On 3-8-2016, an additional charge sheet is said to have been filed against the petitioner in case no.Spl.CC 429/2015 after having obtained sanction from the Hon. Governor of Karnataka, on 20-7-2016. The court below is said to have issued summons to the petitioner on 10-8-2016.

The present petition is filed in the above back drop.

3. It is contended on behalf of the petitioner by the learned Senior Advocate, Shri S.M. Chandrashekar as follows:

From the facts as disclosed, it is seen that the petitioner had along with the Upa Lokayuktha- I, decided that it was a matter where the allegations of Krishnamurthy and the preliminary report submitted on the episode, required an investigating agency, other than one attached to the office of the Lokayuktha, to carry out a detailed investigation and had thus requested the State Government to constitute such an agency, as per his request dated 27-6-2015. Pursuant to which the SIT was indeed constituted as per order dated 30-6-2015. It is thereafter a written complaint is said to have been made by Krishnamurthy, reiterating his allegations. Based on which, a case was said to have been registered as on 1-7-2015.

The SIT which took over the case, had laid the charge sheet in the said Crime no.56/2015 as on 15-9-2015, with a request to continue further investigation. The petitioner was not named as one of the six accused who figured therein. Much after charge sheets were submitted in other related cases, it is only on 3-8-2016 that an additional charge sheet had been submitted, naming the petitioner as an accused, in the case in Spl.CC no.429/2015 (Crime no. 56/2015). It is contended that the SIT had not gathered any material evidence or recorded statements of any witness, as regards any overt acts on the part of the petitioner and have falsely implicated the petitioner as an accused for offences punishable under Sections 8,9 & 10 of the PC Act and Sections 119, 120(B) ,201, 202,217,385,419 read with Sections 36 and 109 of the IPC. It is contended that the said allegations are without any factual basis. Shri Chandrashekar would seek to contend that without having to enter upon the factual basis of the case, the proceedings initiated against the petitioner are liable to be set at naught on the following grounds.

It is contended that the petitioner did not figure as an accused in the charge sheet that was submitted in Spl.CC no.429/2015 ( Crime no. 56/2015), as on 15-9-2015. And that, as on 23-11-2015 one Allam Pasha, who was said to be a social worker, had filed an application under Section 319 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the ‘CrPC’, for brevity), seeking that the petitioner be arraigned as one of the accused in the said case. That application is said to have been rejected by the court below, by a considered order dated 14-1- 2016, holding that there is no prima facie material found against the petitioner to summon him.

It is pointed out that the SIT had in its further investigation recorded the statements of three witnesses, CW- 72, CW-118 & CW -119, it is that which is referred to and relied upon to allege that the petitioner had, by his inaction, enabled his son, to commit acts, which were offences punishable under the several provisions of the IPC, referred to. However, there is no reference in any of the statements of the above witnesses, as to a single overt act on the part of the petitioner , in respect of the controversy. It is hence contended that the implication of the petitioner as an accused is without basis and that the SIT has abused the process of law – amounting to a colourable exercise of power.

It is contended that the court below has committed a grave error in taking cognizance of the offences alleged against the petitioner, under the additional charge sheet – which is bereft of even any allegations of overt acts against the petitioner. The court below has not even referred to the earlier order passed on the application under Section 319 CrPC , to justify its action.

It is contended that from the sequence of events, it was evident that the petitioner had acted in the highest traditions of his office, in directing that the further investigation into the episode, which was made against the very personnel and office of the Lokayuktha ought to be conducted by an outside agency, had requested the Government to constitute a special team. This initiative was in terms of

# Section 15(3) of the Karnataka Lokayukta Act, 1984

(Hereinafter referred to as the ‘KL Act’, for brevity). The Government having then constituted the SIT, the further investigation was handed over to the SIT, as on 1-7-2015. It is contended that it was intended by the Lokayuktha that after such investigation , the SIT was to submit its report to the office of the Lokayuktha and it was never intended that it should act independently as a police station. This is evident from the proceedings of the Lokayuktha dated 26-6-2015 and the request made to the Government, dated 27-6-2015 and 28-6-2015. It is contended it was the prerogative and jurisdiction of the Lokayuktha to accept any such report, or otherwise, and forward the report or pass an order in terms of Section 12(3) of the KL Act. Therefore, it is contended, the filing of the Final report by the SIT, before the Court below, is without authority of law and a failure to follow the mandatory procedure prescribed under the KL Act. It is further contended that the Government could not enlarge the scope of the investigation, nor confer the power and authority of the SIT , which was only an agency constituted to assist the office of the Lokayuktha to continue the investigation, which had already commenced, in an impartial manner and to complete it. The power conferred by the Government on the SIT, vide order dated 9-7-2015, passed under

# Section 4 of the Karnataka Police Act, 1961

(Hereinafter referred to as the ‘KP Act’, for brevity) and Section 32 & 33 of the CrPC, declaring the SIT as a police station, did not confer any greater power than was conferred on the Lokayuktha Police.

It is next contended that the Order of sanction to prosecute the petitioner, issued by the Governor of Karnataka is void.

The qualification for being appointed as a Lokayuktha is specified under Section 3 of KL Act. The terms and conditions of service are specified under Section 5. The removal of Lokayuktha is also specified under Section 6 of the KL Act. Section 6 makes it clear that each house of the State Legislature should pass a resolution by not less that 2/3rd majority present and voting for removal of the Lokayuktha. It is similar in tenor of the provisions providing for the removal of a judge of the higher Judiciary under the Constitution of India.

It is contended that Section 6 of the KL Act is pari materia with Article 124(4)(5) of the Constitution of India.

The Supreme Court had occasion to consider the aspect of granting sanction for prosecution in respect of Judges of the Supreme Court and the High Courts and the apex court, by a Constitution Bench judgment in

# K. Veeraswami v. Union of India, (1991) 3 SCC 655

had deliberated on the following aspects:

a) Whether a judge of the Supreme Court and the High Court is a public servant

b) The authority to grant sanction to prosecute a judge of the Supreme Court or a judge of the High Court

c) Procedure to be followed for granting sanction to prosecute.

It is also contended that an attempt is made by the respondents to canvass that since the petitioner has now resigned, sanction is not necessary.

It is contended that Section 197 of the CrPC is amended by inserting the words ‘or was’ on the basis of the Law Commission Recommendation as under:-

“The Law Commission in its 41st report has observed-

15.123 Section 197 as it now stands applies to a public servant of the specified category only when he is holding office as Public Servant. It does not apply to him after he has retired, resigned or otherwise left the service……… It appears to us that protection under the Section is needed as much after retirement of the public servant as before retirement. The protection afforded by the Section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant seized to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of expediency of prosecuting any public servant.”

59. In view of above provision a person who has retired also has the protection under Section 197 of Cr.PC. that this significant amendment was not brought out to the notice of the Supreme Court while the Apex Court was considering A.R.Antulay’s case. The protection to a public servant becomes meaningful if the Law Commission’s recommendation is considered in its letter and spirit. Denying the protection either under Section 19 of Prevention of Corruption Act or Section 197 of Cr.PC upon a public servant laying down office would be irrational more so having regard to the recommendation of the Law Commission. The protection is an assurance to a public servant that the Government will protect him from any frivolous/vexatious proceedings even after he laying down his office, any device by prosecution or other Agencies would be denying the statutory right. It is not for prosecution, Court or any other Authority to create a embargo to exercise statutory powers under Section 197 of Cr.PC or Section 19 of Prevention of Corruption Act. Such a device would be violative of Article 19 and 21 of the Constitution of India.”

Reliance is placed on paragraphs 9,12,39,48,60,92 & 93 of Veeraswami’s case.

It is contended that there is another facet to test the validity or otherwise of the sanction order passed by the Governor of Karnataka. The Governor of Karnataka being the head of the executive is required to exercise his power only on the aid and advice of the Council of ministers. That, in the present case, the report of the SIT was not placed before the Cabinet and further, the cabinet was not advised as to the acceptance or otherwise of the report. Hence, the unilateral acceptance of the report by the Governor of Karnataka is violative of Article 163 of Constitution of India. Reliance is placed on

# Samsher Singh v. State of Punjab, (1974) 2 SCC 831

in this regard.

It is further contended that the exercise of power in the matter of granting sanction was considered by the Constitution Bench of the apex court consisting of seven judges. That, the Supreme Court in the said case has held that the appointment and removal of a Public Servant is an executive function and the Governor is required to exercise the power of granting sanction to prosecute only on the aid and advice of council of ministers.

Attention is drawn to paragraphs 55, 57, 88, 154 and 157, which are extracted hereunder:

“55. …. The Constitution does not aim at providing a parallel administration within the State by allowing the Governor to go against the advice of the Council of Ministers.

xxx

57. For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vests in the executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally. The present appeals concern the appointment of persons other than District Judges to the Judicial Service of the State which is to be made by the Governor as contemplated in Article 234 of the Constitution after consultation with the State Public Service Commission and the High Court. Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitution.

xxx

88. For the foregoing reasons we hold that the President as well as the Governor acts on the aid and advice of the Council of Ministers in executive action and is not required by the Constitution to act personally without the aid and advice of the Council of Ministers or against the aid and advice of the Council of Ministers. Where the Governor has any discretion the Governor acts on his own judgment. The Governor exercises his discretion in harmony with his Council of Ministers. The appointment as well as removal of the members of the Subordinate Judicial Service is an executive action of the Governor to be exercised on the aid and advice of the Council of Ministers in accordance with the provisions of the Constitution. Appointments and removals of persons are made by the President and the Governor as the constitutional head’ of the executive on the aid and advice of the Council of Ministers. That is why any action by any servant of the Union or the State in regard to appointment dismissal is brought against the Union or the Jr State and not against the President or the Governor.

xxx

154. We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations…..

xxx

157. At the same time if the police are permitted to check upon complaints, the successful invasion of judicial independence is inevitable. No Magistrate may function fearlessly if the prosecuting de- partment may also investigate against him. It is indeed regrettable that this sensitive side of the issue was overlooked by the Punjab High Court when it requested Government to direct the Vigilance Commissioner to report on a member of the judicature. The true intendment of judicial independence is fulfilled not by declining to investigate into delinquencies of judicial personnel nor by holding an open enquiry by a Judge which is a poor substitute for collection of evidence but by creating an apparatus for collecting intelligence and presenting evidence which is under the complete control of the High Court. This is no new idea but had been mooted in the 50s at an all-India Law Minister’s Conference but at least, now after such a long lapse of time, this felt want may be remedied.”

It is contended that in view of the above law declared by the apex court and which holds the field, it is clear that the Governor of a State cannot exercise his powers independently in his personal capacity nor has any statute conferred power upon the Governor of a State to grant sanction to prosecute, independently.

It is contended that the Karnataka Government (Transaction of Business) Rules framed in exercise of power under Article 166(2)(3) of the Constitution of India also does not expressly confer the power upon the Governor of Karnataka to grant sanction for prosecution of a Lokayukta or a Upa- Lokayukta.

It is further contended that the above referred Constitution Bench Judgment has been followed by another constitution Bench of the apex court in M.P.Special Police Establishment Force vs. State of M.P., wherein it has been held that, the Governor has to exercise power with the aid and advice of the Council of Ministers. It is further held that only in the event of apparent bias on the part of the Council of ministers and which is shown to be irrational, or found to be based on the non consideration of relevant factors, the Governor would be justified in exercising his own discretion invoking the Doctrine of necessity.

Therefore, it is contended that the grant of sanction by the Governor of Karnataka is without authority of law and liable to be quashed and consequently, all further proceedings are liable to be quashed.

It is contended that the petitioner’s duties included judicial functions and he exercised the powers of a civil court as provided under the KL Act and was thus protected under the Judges (Protection) Act, 1985, and hence no court could entertain or continue any civil or criminal proceeding against any person who is or was a judge .

4. The respondents were represented by Counsel. Shri C.H. Jadhav, Senior Advocate was heard on behalf of the counsel for the first respondent, SIT and Shri Shankarappa appearing for the second respondent. Having regard to the importance and the unique issues raised, this court had called upon the learned Advocate General, Shri Madhusudhan R. Naik to address the court on the points sought to be raised in the present petition and he was heard at length.

5. It is contended by the learned Advocate General that the sequence of events would indicate that on the written complaint of Krishnamurthy having been received by the Superintendent of Police, Smt. Narang, as on 1-7-2015, she had directed the Deputy Superintendent to register a criminal case on the basis of the written complaint and accordingly a case was registered in crime no.56/2015 by the Lokayuktha Police Station. It is stated that by virtue of a notification issued under Section 17 of the PC Act, the inspector of police of the said police station was authorized to investigate cases under the PC Act. It was that very case which was taken over by the SIT to continue further investigation. The said body was empowered by the State Government to investigate the said criminal case and other cases that were already pending in view of an Order passed in terms of Section 4 of the KP Act and Section 32 & 33 of the CrPC. Therefore, it is stated, that the investigation having commenced with the registration of the FIR, the Final report was necessarily required to be filed before the jurisdictional court, in terms of Section 173(2) of the CrPC. The initial charge sheet submitted by the SIT as on 16-9-2015 was hence in accordance with law and procedure. The court below having taken cognizance had, on the request of the investigating officer, permitted him to continue further investigation. It is after such further investigation that an additional charge sheet is filed, naming the petitioner as an accused .

It is emphasized that the Lokayuktha police have, over the past several decades, routinely submitted charge sheets in cases under the PC Act, independently, to the Special Court and not to the Lokayuktha, as there is no such requirement of obtaining his prior approval to file the same. This is so even in respect of an FIR registered at the instance of the Lokayuktha or Upalokayuktha. In that, after an investigation – the report is made to the jurisdictional court and the Lokayuktha has no role or occasion to scrutinize the said report or to monitor theinvestigation. In this regard reliance is placed on the following decisions:

# a) Panduranga v. State, (2008) 5 KLJ 34

# b) State of Karnataka v. Basavaraj G Maliger, ILR 2003 Kar. 3589

# c) Basappa Patted v. State, ILR 2002 Kar. 830

It is next contended by Shri Naik that the ground urged as regards the validity of sanction obtained under Section 197 CrPC, is concerned, it may not be relevant as it could well be concluded that a sanction was not even necessary to have been obtained. It is urged that the petitioner who is alleged to have committed offences is neither a judge nor was a judge or public servant – not removable from his office save by or with the sanction of the Government, as contemplated under the said provision. It is contended that previous sanction under Section 197CrPC is contemplated for prosecution of only certain categories of persons contemplated under the said provision. In other words, the said section does not contemplate that such sanction is to be obtained for all public servants. In that, not every offence committed by a public servant requires sanction for prosecution. Further, a previous sanction is required, before a court takes cognizance of an offence alleged to have been committed by a public servant – while acting or purporting to act in the discharge of his official duty. As the petitioner does not fall under any of the above three categories, (namely, ‘judge’ ‘former judge’ ‘public servant ‘ – not removable from office save by or with the sanction of the government), the bar under Section 197 CrPC would not operate.

It is further contended that previous sanction is contemplated in appropriate cases where the person is employed in connection with the affairs of the Union or the State government.

The petitioner, it is contended, was the Lokayuktha at the relevant time, but he was neither a judge, nor a magistrate or a public servant employed in connection with the affairs of a State. He is a statutory authority of an autonomous institution.

It is also contended that the Lokayuktha is not removable from his office either by or with the sanction of the Government. There is a procedure prescribed under Section 6 of the KL Act for his removal. In fact, the petitioner having resigned from the position before the court having taken cognizance, the question is academic.

It is contended that there is a misconception that sanction for prosecution of the petitioner should precede the process of removal as contemplated under Section 6 of the KL Act. Removal mainly is an outcome of a misconduct on the part of a public servant, whereby the competent authority terminates the services of the said public servant, after following the due process of law, while the sanction for prosecution is accorded based on the facts that emerge at a criminal investigation. This would be in respect of criminal culpability of the public servant while discharging his official duties. Criminal culpability and misconduct are normally independent of each other. Criminal culpability could also lead to a case of misconduct, but it need not necessarily be vice versa.

It is contended that the immunity claimed by the petitioner under the provisions of the Judges (Protection) Act, is misconceived. Firstly, the petitioner was not performing any judicial functions as the Lokayuktha. Secondly, the petitioner is not accused of acts of omission and commission in the discharge of his official duties. The mere fact that he was a Judge, which was a qualification to be appointed as the Lokayuktha, would not enable the petitioner to claim that he was a judge for the purposes of Section 197 CrPC. It is asserted that no such sanction was necessary, in the instant case, it is claimed, it was obtained by way of abundant caution and was wholly superfluous.

It is hence contended that the petition be dismissed in the light of the above circumstances and the position of law.

6. By way of reply, Shri Chandrashekar contends that the learned Advocate General ‘s contention that the Police attached to the office of the Lokayuktha are empowered to act independently as a Police Station without reference to the Lokayuktha or the Upalokayuktha and that the office of the Lokayuktha deals with civil disputes and the KL Act does not confer any power on the office of the Lokayuktha to initiate criminal prosecution , as being fallacious.

It is contended that the KL Act has come into force on receiving the President’s assent on 16.1.1985. The source of legislative authority of the State Assembly in enacting the Karnataka Lokayuktha Act is referable to the Seventh Schedule, List 2, Entry 1 (Public order), Entry 2 (Police) and Entry 41 (State Public Service), List 3, Entry 1 (Criminal Law), Entry 2 (Criminal Procedure), Entry 11A (Administration of Justice).

It is contended that the State Legislature was conscious of the factum of the conflict with the procedure prescribed under the Code of Criminal Procedure,1973 and the proposed Karnataka Lokayuktha Act, in the matter of investigation against a public Servant, and therefore, the Governor had placed the KL Act before his excellency the President of India for the assent asrequired under Article 201 of the Constitution of India. That on receiving the assent , the KL Act has occupied the field.

Reliance is placed on the statement of objects and reasons in creating the Lokayukta Act.

” If after investigation, the Lokayukta is satisfied that the public servant has committed any criminal offence, he may initiate prosecution without reference to any other Authority. Any prior sanction required under any law for such prosecution shall be deemed to have been granted.”

Attention is also drawn to Section 2(2) of the KL Act, which reads thus:-

“(2) “Allegation”” in relation to a public servant means any affirmation that such public servant.

(a) Has abused his position as public servant to obtain any gain or favour to himself or to any other persons or to cause undue harm or hardship to any other person;

(b) Was actuated in the discharge of his functions, as such public servant by personal interest or improper or corrupt motives;

(c) Is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant; or

(d) Has failed to act in accordance with the norms of integrity and conduct which ought to be followed by public servant of the class to which he belongs.”

It is contended that the KL Act empowers the investigation against a public servant, the holding of a departmental enquiry against a public servant, to submit a report for award of damages for acts of commission or omission by a public servant resulting in loss to common citizen and to submit property statements. Therefore, the contention of the learned Advocate General that the Act provides for investigation only in respect of a civil dispute is erroneous and misconceived and needs to be rejected.

It is contended that to test the veracity of the petitioner’s contention that the Institution of Lokayukta is an exclusive investigative agency set up under the KL Act, it may be tested on the following:-

(a) The Doctrine of occupied filed with reference to Article 254(2) of the Constitution of India;

(b) Exclusion of application of the CrPC as evident from Sections 4(2) and 5 of the CrPC.

(c) Doctrine of purposive interpretation.

(d) Karnataka Lokayuktha Act being a special statute would prevail over a general statute.

(e) The Doctrine of implied repeal It is elaborated that Section 4(2) of the IPC provides that all the offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

Section 5 of the CrPC lays down that “Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred or any special form of procedure prescribed, by any other law for the time being in force”.

It is thus contended that in view of the above said provision, it emerges that the State Legislature intended only one exclusive investigative agency to investigate criminal offences including offences punishable under the PC Act to be investigated in accordance with the procedure established under the provisions of the KL Act. It is contended that any launching of prosecution and investigation into the offences against a public servant in derogation of Section 7 and Section 9 of the KL Act would be violative of the procedure established by law and violative of Article 21of the Constitution.

It is contended that the procedure prescribed under the KL Act will prevail over the procedure prescribed under the CrPC as would be evident from the following:

The Lokayuktha Act being a Special Statute passed by the State Legislature exercising its power to deal with public servants who are alleged to have committed criminal offences, the State Legislature has indicated its intention to occupy the field in the matter of investigation and the KL Act which has received the President’s assent, is the dominant legislation and the CrPC, ageneral enactment, shall make way for special statute. A catena of decisions on the question of a Special Statute prevailing over a General Statute and the Dominant legislation holding the field to achieve the object of legislation are readily available. The courts while interpreting the effect of Section 4 and 5 of the CrPC have held in several cases, that the procedure prescribed under the Special Statue will prevail over the procedure prescribed under the CrPC.

It is contended that Section 17 of the PC Act commences with a non obstante clause in prescribing an Officer other than mentioned in the CrPC as the Officer competent to investigate. The Section reads thus:

# Section 17. Persons authorised to investigate

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank:-

(a) In the case of the Delhi Special Police Establishment, of an Inspector of Police;

(b) In the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;

(c) Elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank.”

The PC Act, in no way, is repugnant to the procedure prescribed under the KL Act. The Officer to investigate a criminal offence against a public servant shall be an Officer prescribed under the PC Act to be named by the Lokayuktha or Upalokayuktha.

A parallel investigation agency set up by the executive will destroy the autonomy, transparency and exclusive power of the Lokayukta. Therefore, it is contended that the say of the learned Advocate General that, SIT is justified in filing the report before the Court of the Special Judge is misconceived, both on facts, as well as in law, more so, when the proceedings were initiated suo motu by the Lokayukta under the KL Act. The procedure prescribed under the KL Act would prevail in so far it relates to investigation, having regard to the provisions of the KL Act.Therefore, the SIT being an agency of the Lokoayuktha was legally bound to file the final report before the office of the Lokayuktha alone. Hence, the filing of the additional charge sheet directly before the Special Judge and the consequent cognizance taken stands vitiated.

It is contended that the Supreme Court and a Division Bench of this court, while considering the limited scope of Section 15 of the KL Act with reference to deputation of a Police Officer to the Lokayuktha, had not considered the doctrine of occupied field, or Section 4(2) and (5) of Cr.PCand Lokayuktha Act. It is contended that the KL Act, being a special enactment, will prevail over any general statute. Therefore, the said judgments cannot be considered as precedent for consideration of the case on hand.

It is contended that the reliance placed on the judgment of the Supreme Court in Rangaswamy and others’ case is also unsustainable as those judgments have not considered the above said doctrine and legal principles.

It is contended that it is useful to refer to a judgment of the Supreme Court with regard to the effect of binding precedents of a Court, in the case of

# State of Uttar Pradesh vs. Synthetics and Chemicals Limited, (1991) 4 SCC 139

Reliance is placed on Paragraph – 40 of the said judgment, which is extracted below:

“‘Incuria ‘literally means ‘carelessness’. In practice per incurium appears to mean per ignoratium.’ English Courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’. (1944 IKB 718 Young v. Bristol Aeroplane Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu -vs- Rajdevan Dubey’ this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury Laws of England incorprating one of the exceptions when the decision of an Appellate Court is not binding.”

It is further contended that in the case of

# A.R. Anthule v. R.S. Nayak and another, reported in (1988) 2 SCC 602

it is held as follows:-

“47. …. It is settled rule that if a decision has been given per incurium, the Court can ignore it …..”

It is contended that the assertion as to a Police Officer on deputation to the Lokayuktha, having independent power to register a case, needs to be turned down in view of the following observation made in

# A.R. Antuly v. R.S. Nayak and another, AIR 1988 SC 1531

“It is the settled position in law That jurisdiction of courts comes solely from the law of the land and cannot be exercised other wise….. …J carrying binding force in the facts….

….Therefore, the order of this Court transferring the cases to the High Court on 16th February, 1984, was not authorised by law. This Court, by its directions could not confer jurisdiction on the High Court of Bombay to try any case which it did not possess such jurisdiction under the scheme of the 1952 Act….

….The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law and no Court…..

….It is the settled position in law that jurisdiction of courts comes solely from the law of the land and cannot be exercised otherwise. So far as the position in this country is concerned conferment of jurisdiction is possible either by the provisions of the Constitution or by specific laws enacted by the Legislature.

The laws of procedure both criminal and civil confer jurisdiction on different courts. Special jurisdiction is conferred by special statute. It is thus clear that jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the Legislature. Jurisdiction is thus the authority or power of the court to deal with a matter and make an order carrying binding force in the facts.”

It is contended that the KL Act is a self-contained Code prescribing a procedure for investigation to be conducted, vesting exclusive power and jurisdiction with the Lokayuktha and the Upa-Lokayuktha, to initiate proceedings against a Public Servant, suspend a public servant, submit a report and launch criminal prosecution under Section 14. Therefore, no agency or authority can investigate any offences against a public servant when the Lokayuktha is seized of the matter.

It is contended that in the case on hand, the Lokayuktha has exercised the power to set up an agency for investigation under Section 15(3) of the KL Act, thereby leaving no doubt that the Officer or Agency is bound to follow the procedure prescribed under the KL Act. It was thus not open for the SIT or the Government to contend that they have independent authority of filing a final report before the Sessions Court.

It is contended that viewed from any angle, by applying the above said tests, the only irresistible conclusion that can be drawn is that the procedure prescribed under the KL Act is required to be followed and that these procedures will prevail upon the procedure prescribed under the CrPC. Thus, the submission of the learned Advocate General that the SIT was justified in filing the report before the Special Court is unsustainable in law.

It is further contended that from a reading of the three separate judgments, which constitute the majority judgment in Veeraswami’s case, it is laid down that there is no Master and servant relationship in respect of a judge of the higher judiciary, however, he could be said to be a public servant in a broader sense for purposes of the PC Act and that sanction to prosecute such a judge was required and subject to the procedure under Art.124 (4) of the Constitution of India and upon the advise of the Chief Justice. It is contended that having regard to the similarity in the procedure prescribed under Section 6 of the KL Act for the removal of the Lokayuktha or a Upalokayuktha and the procedure prescribed under Art. 124(4), for the removal of a Judge, under the Constitution of India, it is sought to be contended that the judgment in Veeraswami’s case would be applicable to the facts of the case on hand, as regards the sanction to be obtained for prosecution.

It is further contended that in view of the above judgment, the grant of sanction by the Governor of Karnataka without following the procedure prescribed under Section 6 of the KL Act is void and is liable to be quashed.

As regards the contention of the learned Advocate General that there is no requirement of taking sanction on two counts, namely, that the Lokayukta is not a public servant; and that there is no Master and Servant relationship as between him and the State Government, and further that even if he is construed as a public servant, the Government is not the Authority to remove the Lokayuktha and therefore, compliance with Section 197 of Cr.PC was not required, is concerned, it is emphasized that the above contention is misconceived and not apt to the facts of the present case. The question whether sanction is required or not is not the subject matter of the present petition and it is not germane to the questions required to be resolved, as the sanction has been granted on the SIT seeking the same. Hence, consideration of the said question does not arise in the present petition. The question that is raised however, is whether the Governor is vested with the discretion of according sanction without compliance with Section 6 of KL Act or Article 163 of the Constitution of India.

Though the petitioner has resigned as Lokayuktha, the competent authority to grant sanction for prosecution would be the authority prescribed under Section 6 of the KL Act. Therefore, the order of sanction by the Governor of Karnataka in the absence of resolution by the requisite majority by both Houses of the State Legislature would be illegal, arbitrary, and without Authority of law. The word removal has been interpreted by the Supreme Court for the purpose of deciding as to who would be competent authority to grant sanction.

The judgment of the Apex Court in Veeraswamy’s case is an Authority for the proposition that even though there is no relationship of master and servant, a Judge of the Supreme Court and the High Court are public servants as defined under PC Act and IPC and they can be prosecuted. The person who has the power to remove is the person to grant sanction for prosecution in terms of the law declared in Veeraswamy’s case and Shamsher Singh’s case. Since Article 124(4) of the Constitution of India and Section 6 of the KL Act are Similar, the judgment in Veeraswamy’s case and Shamsher Singh’s case are applicable to the facts of the case. By ignoring the judgment of Supreme Court in Anthulay’s case, in so far as it relates to the question of holding that sanction is not necessary after the retirement, having regard to the amendment brought to Section 197 of the Code of Civil Procedure,1908, and in the letter and sprit of the Law Commission’s recommendations.

It is further contended that the Karnataka Government (Transaction of Business) Rules framed in exercise of power under Article 166(2)(3) of Constitution of India also does not expressly confer the power upon the Governor of Karnataka to grant sanction for prosecution of a Lokayukta or a Upa- Lokayukta.

The above referred constitution bench judgment has been followed by another constitution bench of the apex court consisting of 5 judges, in M.P.Special Police Establishment Force vs. State of M.P. wherein it has been held that, the Governor has to exercise power with the aid and advice of the Council of Ministers. It is further held that only in the event of apparent bias and which is shown to be irrational based on the non-consideration of relevant factors by the Council of Ministers, the Governor could be justified in exercising his discretion citing the Doctrine of Necessity.

Therefore, it is contended that the grant of sanction by the Governor is without authority of law and liable to be quashed.

The contention of the Advocate General that the petitioner was not a public servant and as such there was no need for obtaining sanction and that the sanction is superfluous by referring to section 21 of the IPC is misconstrued.

It is pointed out that the allegation against the petitioner is of commission of offences under Sections 119, 201, 217 of the IPC and Section 117, which relates to a public servant being involved in commission of offences.

Similarly, Sections 119 and 217 relate to an offence that would be committed by a public servant and therefore, the contention that the petitioner is not a public servant and there is no requirement of obtaining sanction, would be a contradiction in terms. Therefore, if the petitioner is not a public servant, then provisions of the PC Act cannot be made applicable to prosecute the petitioner.

It is contended that notwithstanding the resignation of the petitioner, the competent person to grant sanction is the person who has the power and jurisdiction to remove the Lokayukta at the instance of an authority in terms of section 6 of the Act. Therefore, the order of sanction by the Governor is without authority of law.

7. In the light of the above rival contentions, the points that arise for consideration are :

i ) Whether the Final Report of the SIT was to be submitted to the Lokayuktha alone and whether the SIT had no authority or jurisdiction to file the same before the Court of the Special Judge?

ii ) Whether there is a valid prior sanction, under Section 197 CrPC, to prosecute the petitioner and which is the authority to grant such sanction and under what procedure?

iii ) Whether the Lokayuktha would be protected under the Judges ( Protection) Act, 1985?

iv ) Whether the court below had erred in issuing summons to the petitioner on being arraigned as Accused no.7, at the instance of the SIT, in the face of an earlier order rejecting an application under Section 319 CrPC, which was filed with a prayer to include the petitioner as an accused?

To answer the first point hereinabove, the sequence of events leading up to the constitution of the SIT by the State Government is to be noticed. On 7-5-2015 information is received by the Superintendent of Police, Smt. Narang, of Ashok Kumar having demanded a bribe from Krishnamurthy, in order to keep a Lokayuktha raid from happening against him. The informant Krishnamurthy, however, dithers to file a written complaint. This is in turn brought to the attention of the petitioner on 20-5-2015. And he is said to have directed the Inspector General of Police to enquire in to the allegations.

Parrallely, the Upa Lokayuktha -II , Shri Adi, acting on a complaint of a Parishad, of inaction on the part of the Lokayuktha in taking prompt action on the report of Smt. Narang, he is said to have passed an order dated 23-6-2015, directing Narang to conduct an investigation. The Lokayuktha upon learning of this is said to have decided to direct that the investigation by Narang as well as the investigation he had directed to be done by Mohanty, be handed over to one Chandrashekar, Joint Commissioner (Crime). That officer having pleaded his inability on account of personal reasons. The Lokayuktha, had felt it would be prudent that the investigation be carried out by an independent outside agency and had requested the State Government to establish a Special Investigation team to look into the allegations as they pertained to the very office of the Lokayuktha.

Before the files were sought to be withdrawn from Smt.Narang, the inspector entrusted with the investigation at the instance of the Upa Lokayuktha, Shri Adi, is said to have submitted a preliminary report, on 29-6-2015 and the details furnished therein is said to have included a reference to the son of the petitioner, Y.Ashwin Rao, as being involved in extortion along with the other accused.

On the same day, 29-6-2015, Krishnamurthy is said to have filed a written complaint reiterating what had been stated before Smt. Narang earlier. This is said to have been brought to her attention on 30-6-2015. On 1-7-2015 a criminal case was said to have been registered in Crime no.56/2015 by the Lokayuktha Police , for offences punishable under Section 8 of the PC Act andSections 384, 419 & 420 read with Section 120 (B) of the IPC.

The State Government had constituted the SIT, headed by an Additional Director General of Police, as on 30-6-2015.

The SIT is said to have taken over the investigation of the criminal case in Crime no.56/2015, that was already registered, as on 10-7-2015.

In the above background, it would appear incongruous for the SIT to be required to submit a report to the Lokayuktha, when the SIT had not taken over a mere investigation into any ‘action’ or ‘allegation’ (as defined under Section 2(a) & (b), respectively, of the KL Act) but a criminal case that was already registered before the Lokayuktha Police, on the basis of the complaint of Krishnamurthy. And there was prima facie material indicating the involvement of the petitioner’s son.

Secondly, the establishment of the SIT and the entrustment of the investigation was not with a view to have the assistance of an exclusive investigation agency ,on account of a complicated or sensitive case but on account of the office of the Lokayuktha itself being involved. It would therefore not be expected of the very authority, however remotely connected with the wrong doers who may be identified either at an enquiry or a criminal investigation, to oversee or take further action on the basis of a final report that was to be filed by the SIT.

Thirdly, though initially on the order of the Upa Lokayuktha the Superintendent of Police, Narang, had initiated an investigation under the provisions of the KL Act, on the receipt of a preliminary report and on the receipt of the written complain of Krishnamurthy, a criminal case was registered. And from that point on, it would be an independent investigation by the State, within the scope of the PC Act. In the case of

# State of Karnataka v. Kempaiah, AIR 1998 SC 3047

the Apex Court has held that the Lokayukta or the Upa lokayuktha shall not investigate nor direct the filing of charge sheet for offences under the provisions of the PC Act and the IPC. And further in the case of

# C. Rangaswamaiah v. Karnataka Lokayuktha, AIR 1998 SC 2496

the apex court has held that the Police Wing of the Lokayuktha is empowered to register a case and investigate the matter and file charge sheet in a competent court under the provisions of the PC Act. Following the above rulings a Division Bench of this court in the case of

# State of Karnataka v. Basavaraj Guddappa Maliger, ILR 2003 Kar 3589

has laid down that the following conditions are to be fulfilled for conducting an investigation of an offence under the provisions of the PC Act.

“(a) The officer of the Police Wing of the Lokayukta, and not the Lokayukta or the Upalokayukta, is the only competent authority to investigate offences under the provisions of the P.C.Act if so authorised under Section 17 of the P.C.Act.

(b) There must be a Notification declaring the Police Wing of the Lokayukta as a Police Station under Section 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 Section 19 of the P.C.Act.

In the light of the above legal position, the first point is answered in the negative. The effort on the part of the learned Senior Advocate, Shri Chandra Shekar as to the KL Act being an exclusive piece of legislation which would override the general statute, in the matter of investigation and prosecution of matters seized of by the Lokayuktha cannot be accepted, without overlooking the categorical rulings referred to above. Notwithstanding his assertion that a particular line of argument canvassed with reference to legal principles and doctrines were never urged in those decisions. The net effect of those decisions cannot be indirectly overturned.

In so far as the second point for consideration is concerned, in view of the petitioner having submitted his resignation to the office of the Lokayuktha, a prior sanction under Section 19 of the PC Act, for his prosecution was no longer required. A prior sanction under Section 197 CrPC is however, obtained from the Hon. Governor of Karnataka. It is vehemently contended on behalf of the petitioner that the same is invalid. On the other hand the learned Advocate General has contended that a sanction was not even necessary as the petitioner ,was not a public servant – notremovable from office save by or with the sanction of the government. It is contended that in any event there is a prior sanction and that the same is valid.

On the incidental question whether the Lokayuktha is a public servant, it would appear that he is indeed one, as he is one who holds an office by virtue of which he is authorised or required to perform public duties. And would fall under clause (viii) of Section 2 of the PC Act. Further, the contention by the learned Advocate General to the effect that the Lokayuktha is an independent functionary and that there is no master and servant relationship as between him and the State Government and that he is not capable of being removed from office by the State Government, may not be entirely tenable. Though the Lokayuktha is an independent statutory functionary, he can be removed from office by an order of the Governor, subject of course to the procedure prescribed under Section 6 of the KL Act.

A Constitution Bench of the Apex Court in M.Karunanidhi vs. Union of India was required to consider whether a Chief Minister was a public servant within the meaning of Section 21 of the IPC and Section 197 of the CrPC. The court referred to the decision of the High Court of Bombay in Namdeo Kashinath Aher v. H.G.Vartak and extracted with approval the following passage therefrom:

” 5. …….”Whatever be the practical and actual position, the fact remains that it is the Governor who can accept the resignation of the Ministry or Minister and it is the Governor again who can dismiss or remove the Minister from office. Under Section 3(60) of the General Clauses Act, 1897, the word ‘State Government’ has been defined. Clause (c) of Section 3(60) is applicable to the present case and, therefore, the State Government is to mean the Governor for the purpose of the present case. The result, therefore, is that accused No.1 is a public servant who can be said to be removable only by the State Government, meaning thereby the Governor, and I do not find any difficulty in coming to the conclusion that the second requirement of Section 197, Cr.P.C. also is fully satisfied as far as accused No.1 is concerned.”

On the same analogy, by virtue of the provisions in the General Clauses Act, 1897, the expression “Government’ used in Section 197 would mean the Governor and hence the contention that the Lokayuktha is not a public servant as considered under Section 197 CrPC, for he is not capable of being removed by the Government is not wholly correct. But the protection under the said section to a person who was a public servant at the time of commission of the offence but has ceased to be so at the time when the court proceeds to take cognizance of the offence against him, would depend upon the nexus between his actions and the discharge of official duties. Whether such acts formed part of duty will entirely depend on the facts and circumstances of each case.

It is also plain that no prior sanction to prosecute the petitioner is required under Section 19 of the PC Act, as the petitioner has resigned from office. Nor is a prior sanction required under Section 197 CrPC . The following authorities have sufficiently made the legal position clear.

In the case of

# S.A. Venkataraman v. The State, AIR 1958 SC 107

a three-Judge bench decision of the apex court, the question of law was whether there was any necessity for sanction under Section 6 of the Prevention of Corruption Act, 1947 before a court could take cognizance of an offence under Section 161 of the IPC or Section 5(2) of the Prevention of Corruption Act, 1947 or both, alleged to have been committed by a person, who at the time the court was asked to take cognizance was not a public servant, but was so at the time of the commission of the offence. It was answered thus by the Supreme Court:-

“When the provisions of s. 6 of the Act are examined it is manifest that two conditions must be fulfilled before its provisions become applicable. One is that the offences mentioned therein must be committed by a public servant and the other is that that person is employed in connection with the affairs of the Union or a State and is not removable from his office save by or with the sanction of the Central Government or the State Government or is a public servant who is removable from his office by any other competent authority. Both these conditions must be present to prevent a court from taking cognizance of an offence mentioned in the section without the previous sanction of the Central Government or the State Government or the authority competent to remove the public servant from his office. If either of these conditions is lacking, the essential requirements of the section are. wanting and the provisions of the section do not stand in the way of a court taking cognizance without a previous sanction. An offence under s. 161 of the Indian Penal Code can be committed by a public servant or by a person expecting to be a public servant, but s. 6 of the Act refers only to an offence committed by a public servant under that section. If, therefore, at the time a court was asked to take cognizance of an offence under s. 161 of the Indian Penal Code, the accused is a public servant but was not so at the time that the offence was committed, but at which time he was merely expecting to be a public servant, a previous sanction would be unnecessary before a court could take cognizance. as the provisions of the section would be inapplicable. Conversely, if an offence under s. 161of the Indian Penal Code was committed by a public servant, but, at the time a court was asked to take cognizance of the offence, that person had ceased to be a public servant one of the two requirements to make s. 6 of the Act applicable would be lacking and a previous sanction would be unnecessary. The words in s. 6(1) of the Act are clear enough and they must be given effect to. There is nothing in the words used in s. 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed. It was suggested that cl.(c) in s.6(1) refers to persons other than those mentioned in cls. (a) and (b). The words “is employed ” are absent in this clause which would, therefore, apply to a person who had ceased to be a public servant though he was so at the time of the commission of the offence. Clause (c) cannot be construed in this way. The expressions “in the case of a person” and “in the case of any other person” must refer to a public servant having regard to the first paragraph of the sub-section. Clauses (a) and (b), therefore, would cover the case of a public servant who is employed in connection with the affairs of the Union or a State and is not removable from his office save by or with the sanction of the Central Government or the State Government and cl. (c) would cover the case of any other public servant whom a competent authority could remove from his office. The more important words in cl.(c) are “of the authority competent to remove him from his office”. A public servant who has ceased to be a public servant is not a person removable from any office by a competent authority. Section 2 of the Act states that a public servant, for the purpose of the Act, means a public servant as defined in s. 21 of the Indian Penal Code. Under cl.(c), therefore, any one who is a public servant at the time a court was asked to take cognizance, but does not come within the description of a public servant under cls. (a) and (b), is accused of an offence committed by him as a public servant as specified in s. 6 would be entitled to rely on the provisions of that section and object to the taking of cognizance without a previous sanction. To read cl. (c) in the way suggested on behalf of the appellants, would be to give a meaning to this clause which is not justified by the words employed therein. It was further suggested that the provisions of sub-s. (2) of s. 6 indicate that it was the status of the accused at the time of the commission of the offence which was relevant rather than his status at the time a court was asked to take cognizance. This sub-section was inserted into the Act by the Prevention of Corruption (Second Amendment) Act, 1952, and it purported to finally settle any doubts which may arise as to which authority should grant the sanction in the case of a public servant who had committed an offence mentioned in s. 6(1) and who at the time the court was asked to take cognizance is still a public servant. For example, it is not difficult to imagine cases where a public servant employed by a State Government is subsequently employed by the Central Government and a question arises as to which of the two Governments is to grant the sanction for his prosecution. This sub-section resolves the difficulty by directing that where a doubt arises, the authority which was to grant the sanction was the one which was competent to remove him from his office at the time of the commission of the offence. If the provisions of sub-s. (1) bear the construction which we place upon them, there is nothing in sub-s. (2) which is in conflict with that construction. Besides, there is nothing in the language of sub-s. (2) which carries the meaning suggested on behalf of the appellants or which assists us in construing the provisions of sub-s. (1). We cannot construe thewords ” is employed ” and ” is not removable” in cls. (a) and (b) and “competent to remove him from his office” in cl. (c) as “was employed” and ” was not removable ” and ” would have been competent to remove him from his office “. To do so would be to substitute our own words for the words of the statute as contained in these clauses.”

In the case of

# C.R. Bansi v. The State of Maharashtra, (1970) 3 SCC 537

again before a three judge bench of the apex court, a preliminary point was raised on behalf of the appellant to the effect that sanction had not been given for prosecuting the appellant and that the whole trial was bad. A similar plea had been raised before the Special Judge who had repelled the contention in the following words:-

“For requiring a sanction to be taken before taking cognizance of an offence against a person, he must be in actual employment of the State. A mere right of appeal will not invest him with that status. Moreover, a person may have right of appeal, but he may not exercise the same and may not file the appeal. It is purely within his discretion and the act of taking cognizance which is the course of law would not be made dependent upon such arbitrary and discretionary alternatives held by a person.”

The Supreme Court agreed with the conclusion reached by the Special Judge and held thus:-

“It seems to us that the person must be employed in connection with the affairs of the Union in sub-cl. (a) and with the affairs of the State in sub- cl. (b) The case of the appellant would be covered in sub-cl. (a) because he had been employed in connection with the affairs of the Union. But the sub- section contemplates that the person must be employed in connection with the affairs of the Union and not that he was employed with the affairs of the Union. The policy underlying s. 6, and similar sections, is that there should not be unnecessary harassment of public servants. But if a person ceases to be a public servant the question of harassment does not arise. The fact that an appeal is pending does not make him a public servant. The appellant ceased to be a public servant when the order of dismissal was passed. There is no force in the contention of the learned counsel and the trial cannot be held to be bad for lack of sanction under s. 6 of the Act.”

In

# State of West Bengal v. Manmal Bhutoria, (1977) 3 SCC 440

following S.A.Venkataraman’s case and C.R.Bansi’s case, referred to hereinabove, it was held that reference to Section 6 would not apply to a public servant if he ceased to be in office.

In

# R. Balakrishna Pillai v. State of Kerala, (1996) 1 SCC 478

the appellant was charged for having entered into criminal conspiracy with the co-accused while functioning as a minister. The criminal conspiracy alleged was that he had sold the electricity to a factory in the State of Karnataka without the sanction of the Government of Kerala which was alleged to be an illegal act under the provisions of the Electricity (Supply) Act,1948 and the Kerala Electricity Board Rules framed thereunder. It was alleged that the minister, in pursuance of the said alleged conspiracy, abused his official position and illegally sold certain units to a private industry in Bangalore and profited the industry to the tune of Rs.19.58 lakh or more and it was therefore obvious that the criminal conspiracy alleged against the appellant was that while functioning as the Minister for Electricity, he had, without the consent of the Government of Kerala, supplied certain units of electricity to a private industry in Karnataka. He did this in the course of his official duties as a minister. The allegation was that it was an illegal act in as much as the consent of the Government was not obtained before this arrangement was entered into and the supply was effected. It was stated that he had committed illegality and hence he was liable to be punished for an offence of criminal conspiracy under section 120-B IPC and 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947. It was seen that the charge alleged was directly and reasonably connected with the official duty as a minister and would attract the provisions of section 197(1) of the CrPC. The Supreme Court has considered the amendment to Section 197 of the CrPC and expressed thus:

“3. Section 197(1) provides that when any person who is or was a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction – (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; and (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.

4. We may mention that the Law Commission in its 41st Report in paragraph 15.123 while dealing with Section 197, as it then stood, observed “it appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecutions. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant”. It was in pursuance of this observation that the expression ‘was’ came to be employed after the expression ‘is’ to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted. “

While considering the aspect whether the offence alleged against a public servant could be said to have been committed by him while acting or purporting to act in the discharge of his official duties, the court has referred to an earlier decision by it in

# B. Saha v. M.S. Kochar, (1979) 4 SCC 177

and held thus:-

“Our attention was next invited to a three- Judge decision in B. Saha & Ors. Vs. M.S. Kochar (1979 (4) SCC 177). The relevant observations relied upon are to be found in paragraph 17 of the judgment. It is pointed out that the words ‘any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty’ employed Section 197(1) of the code, are capable of both a narrow and a wide interpretation but their Lordships pointed out that if they were construed too narrowly, the section will be rendered altogether sterile, for, “it is no part of an official duty to commit an offence, and never can be”.

At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed. The right approach, it was pointed out, was to see that the meaning of this expression lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important, and if it falls within the scope of the afore-quoted words, the protection of Section 197 will have to be extended to the concerned public servant. This decision, therefore, points out what approach the Court should adopt while construing Section 197(1) of the Code and its application to the facts of the case on hand.”

In

# Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411

while noticing that section 19(1) of the PC Act, 1988 was in pari materia with section 6(1) of the PC Act, 1947 and placing reliance on S.A.Venkataraman, supra and R.Balakrishna Pillai’s case, supra, the court pronounced thus:

“13. It must be remembered that in spite of bringing such a significant change to section 197 of the Code in 1973, the Parliament was circumspect enough not to change the wording in Section 19 of the Act which deals with sanction. The reason is obvious. The sanction contemplated in Section 197 of the Code concerns a public servant who “is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty”, whereas the offences contemplated in the P.C. Act are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former P.C. Act was materially imported in the new P.C.Act, 1988 without any change in spite of the change made in section 197 of the Code.

14. The result of the above discussion is thus: A public servant who committed an offence mentioned in the Act, while he was a public servant can be prosecuted with the sanction contemplated in Section 19 of the Act if he continues to be a public servant when the court takes cognizance of the offence. But if he ceases to be a public servant by that time the court can take cognizance of offence without any such sanction. In other words, the public servant who committed the offence while he was public servant is liable to be prosecuted whether he continues in office or not at the time of trial or during the pendency of the prosecution. “

In

# Raghunath Anant Govilkar v. State of Maharashtra, (2008) 11 SCC 289

the apex court has again reiterated the law as laid down in the above referred cases.

In the present case on hand, it is evident from a prima facie examination of the allegations against the petitioner that the offences alleged against the petitioner are certainly not connected with the actions that could be relatable to the discharge of the official functions by the petitioner. Hence, there is no difficulty in concluding in the light of the law as laid down by the above line of cases that no sanction would be required under section 197 of the CrPC. It is disturbing that the above line of cases were not cited at the bar in the course of long drawn out arguments canvassed on either side.

Hence, the question as to what should be the procedure for grant of sanction to prosecute the Lokayuktha and the further question as to whether the sanction granted by the Hon.Governor of Karnataka is valid, are not relevant and need not be gone into.

The second point for consideration is answered as above.

In so far as the third point for consideration is concerned it is not possible to accept that the Lokayuktha is protected under the Judges (Protection ) Act, 1985.

A plain reading of Section 2 and Section 3(1) of the said Act would indicate two requirements before the petitioner could claim to be protected thereunder. The said Sections are reproduced hereunder for ready reference.

# Definition

“2. In this Act, “Judge” means not only every person who is officially designated as a Judge, but also every person –

(a) Who is empowered by law to give in any legal proceeding a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive; or

(b) who is one of a body of persons which body of persons is empowered by law to take such a judgment as is referred to in Cl. (a).

# Additional protection to Judges

“3(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-sec.(2), no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function.”

Under the provisions of the KL Act, the Lokayukta does not render any judgments, as he has no occasion to decide any lis. Secondly, the protection under Section 3 is available only in respect of such any act committed while acting in the discharge of his official or judicial duty or function.

The third point for consideration is answered in the negative.

In so far as the fourth point for consideration is concerned, it is seen that notwithstanding the dismissal of an application under Section 319 CrPC, filed by a private party, seeking that the petitioner be named as an accused in the pending case, the trial court appears to be justified in taking cognizance of the offences alleged against the petitioner in the trial court having held thus in the impugned order :

“The documents produced in the form of additional charge sheet consist of two parts in Volume III. On perusal of additional charge sheet and other connected papers it appears that Dr.Justice Y.Bhaskar Rao was appointed as Judge of Andhra Pradesh High Court and in the year 1977 he was transferred to the High Court of Karnataka. In the year 1999 he was elevated as the Chief Justice of Karnataka High Court and retired in the month of June 2000. On 13.02.2013 he was appointed as Karnataka Lokayukta. The prosecution has alleged that during the second half of 2014 accused Nos.1 to 3 and others entered into a criminal conspiracy to commit the offences of extorting money from the public servants and in furtherance of their conspiracy they started identifying public servants potentially vulnerable to the allegations of corruption. Calling them to the official chambers of accused No.1 and conference hall attached to it and to the official residence of Lokayukta they used to threaten the public servant and thereby indulged in extortion of huge money. As the prosecution story further undrapes in order to the public servants and to misuse they wanted a reputed and efficient police officer and accordingly they got posted CW.72 Smt.Sonia Narang as the Superintendent of Police, Karnataka Lokayukta, Bengaluru City Division.

4. The prosecution has alleged that the former Karnataka Lokayukta being a public servant whose duty as such was to prevent commission of offences of corruption, favouritism, official indiscipline intending to facilitate and knowing it to be likely that he will thereby facilitate the commission by an act of commission by not directing the authority concerned or himself taking action has committed the offence u/s 119 of IPC. Further it has been alleged that intentionally aided the other accused to commit offences by destroying the mobile phones and sim cards used for the commission he has committed offences punishable u/s 201 of Cr.P.C. It has also been alleged that having close wings with other accused and having reason to believe that they have committed the offences, the former Lokayukta has failed to give information to the authorities with an intention to save accused Nos.1 to 6 from legal conviction, thereby committed an offences punishable u/s 202 of IPC. The prosecution has alleged that with an intention to save or knowing it to be likely he will thereby save, the former Karnataka Lokayukta through the e-mail ID of CW.31 A.P.Pramod one of the official of Lokayukta has sent documents to the Counsel of accused no.2 and thereby committed an offences punishable u/s 217 of IPC. It is also alleged that the former Lokayukta has intentionally aided the commission of offences punishable u/s 8, 9, 10 ofPrevention of Corruption Act and u/s 385, 419, 201 r/w Sec.120-B of IPC by accused Nos.1 to 6, by deliberately omitting to take action to prevent the commission of those offences thereby committed the offences punishable u/s 36, 109 of IPC.

5. The Hon’ble Supreme Court in the case of Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke reported in (2015)3 SCC 123 has held that cognizance is a process taking judicial notice of an offence so as to initiate proceeding in respect of the alleged violation of Law. It is further held that at the stage of taking cognizance of a case what is to be seen is whether there is sufficient grounds for taking judicial notice of an offence with a view to initiate further proceedings. On perusal of the material produced before the court goes to show that the other accused have used the office of Karnataka Lokayukta and the official residence to commit the offence. Though the former Karantaka Lokayukta has expressed his innocence, the statement of CW.72 Soniya Narang, CW26, Cw.118 M.Lakshminarayana clearly goes to show that inspite of bringing to the notice about the offences being committed in the Lokayukta office and residence the former Karnataka Lokayukta did not take immediate action. CW.119 the statement of A.C.Vidyadhara the ARE-1 it is found that in respect of a complaint petition received against the brother of accused no.1 he has issued endorsement as per the orders of former Karnataka Lokayukta. The statement of CW31 A.C.Pramod goes to show that he used to talk with accused no.2 and the former Karnataka Lokayukta using the mobile of CW21 to talk with his son. The call details record goes to show the involvement of former Karnataka Lokayukta . Thus the material produced by the prosecution prima facie goes to show sufficient grounds to proceed further against the former Karnataka Lokayukta.”

The narration above would indicate that the trial court has addressed the facts and circumstances disclosed from a cursory examination of the material gathered and has taken cognizance of the offences alleged against the petitioner, in issuing process.

Therefore, in the opinion of this court, the petition lacks merit and is dismissed.

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