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

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