Back
2015 Supreme(Kar) 1112
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Rathnakala, J.
M.P. Renukacharya and Ors. - Appellants
Vs.
State of Karnataka and Ors. - Respondents
Criminal Petition No. 3431/2015
Decided on : 04-09-2015
For the Appellant : Hashmath Pasha, Adv.
For the Respondents: Venkatesh P. Dalwai, Spl. P.P.
The main legal point established in the judgment is that the referral for investigation under Section 156(3) of Cr.P.C. must reflect the application of judicial mind and comply with the guidelines laid down by the Apex Court. Additionally, the mandatory nature of sanction to prosecute under Section 19(3) of the Prevention of Corruption Act was emphasized.
Headnote:
Referral of Complaint for Investigation - Prevention of Corruption Act - Sections 13, 13(1)(d) and (e) - Sections 120-B and 420 of IPC - Cr.P.C. 156(3) - Summary of Acts and Sections: The court discussed the requirements and limitations of Section 156(3) of the Cr.P.C., the mandatory nature of sanction to prosecute under Section 19(3) of the Prevention of Corruption Act, and the guidelines laid down by the Apex Court in Mrs. Priyanka Srivastava case regarding the invocation of the jurisdiction under Section 156(3) of Cr.P.C.
Fact of the Case:
The petitioners challenged the order of the Special Court for Lokayuktha at Davangere in referring the complaint for investigation to the Superintendent of Police, Lokayuktha, Davangere, under Section 156(3) of Cr.P.C. The complainant sought cognizance of offences under the Prevention of Corruption Act and IPC against the accused/petitioners.
Finding of the Court:
The court found that the order of referral for investigation was illegal and without jurisdiction as it did not reflect the application of the learned Judge's mind and did not comply with the guidelines laid down by the Apex Court. The court allowed the petition and quashed the FIR and consequential proceedings, reserving liberty to the complainant to pursue the complaint in accordance with the procedure laid down by the Apex Court.
Issues: The issues involved the legality of the referral for investigation under Section 156(3) of Cr.P.C., the mandatory requirement of sanction to prosecute under Section 19(3) of the Prevention of Corruption Act, and the compliance with the guidelines laid down by the Apex Court in Mrs. Priyanka Srivastava case.
Ratio Decidendi: The court held that the referral for investigation must reflect the application of judicial mind and cannot be done mechanically. It emphasized the mandatory nature of sanction to prosecute under Section 19(3) of the Prevention of Corruption Act and the need for the complainant to follow the procedure required for the presentation of a private complaint before the concerned Court.
Final Decision: The petition was allowed, and the FIR and consequential proceedings were quashed, with liberty reserved to the complainant to pursue the complaint in accordance with the procedure laid down by the Apex Court.
Rathnakala, J.
1. Aggrieved by the order of the Special Court for Lokayuktha at Davangere in P.C.R. No. 2/15 in referring the complaint for investigation to the Superintendent of Police, Lokayuktha, Davangere, under Section 156(3) of Cr.P.C. vide order dated 2.5.2014 at Annexure-A, the petitioners/accused are before this Court.
2. The complainant/second respondent sought indulgence of the Court to take cognizance of the offence punishable under Sections 13 and 13(1)(d) and (e) of the Prevention of Corruption Act and for the offences punishable under Sections 120-B and 420 of IPC and such other offences punishable under the provisions of the Indian Penal Code against the accused/petitioners herein.
3. It is apparent from first page of the complaint itself that the complaint was presented directly to the Court on 2.5.2014 and on the very same day, the order of reference as at Annexure-A is passed.
4. Sri. Hashmath Pasha, learned Counsel appearing for the petitioners submits that, the order of the Special Court in referring the matter for investigation is basically perverse and in violation of the dictum of the Apex Court in the matter of Mrs. Priyanka Srivastava and Another v. State of Uttar Pradesh and Others reported in AIR 2015 SC 1758. It was not as if the order under challenge was passed prior to the judgment of the Apex Court stated supra. This judgment was of 19.3.2015 and was directed to be communicated among the learned Magistrates through the concerned Sessions Court and concerned Registrars of the High Court, so that they may remain more vigilant and diligent, while exercising power under Section 156(3) of Cr.P.C, the impugned order passed subsequently on 2.5.2014 in not abiding the guideline of Mrs. Priyanka Srivastava's case (supra) is vitiated and illegal. Moreover, the way the complaint is received and impugned order immediately passed indicates that the Court without application of mind has referred the matter for investigation without application of mind, mechanically, is without jurisdiction. It does not qualify to the requirement enunciated by the Apex Court and deserves to be quashed.
5. The Apex Court in Anil Kumar and Others v. M.K. Aiyyappa and Another reported in 2014 CRI.LJ. I, held that a direction to the police to investigate shall not be given mechanically. The Magistrate has to apply his mind and his order must reflect what made him to order investigation. It was also held that sanction to prosecute is a mandatory requirement and Section 19(3) of the Prevention of Corruption Act, 1988, does not have effect of making it directory. The offences alleged under Sections 120B and 420 of IPC, is mandatory which requires prior sanction of the Government and same is lacking in this case.
6. Learned Counsel took me through para Nos. 26 and 27 of the judgment of the Apex Court reported in AIR 2015 SC 1758 in the matter of Mrs. Priyanka Srivastava and Another v. State of Uttara Pradesh and Others, whereby procedure to invoke the jurisdiction under Section 156(3) of Cr.P.C. is laid. This judgment is ordered to be circulated to the Magistrates through their respective High Courts, so that they can remain more vigilant and diligent, while exercising the power under Section 156(3) of Cr.P.C. The guidelines as at Para Nos. 26 and 27 of the judgments as follows:--
"26. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.
27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be
