2022 Supreme(Kar) 333

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
S. SUNIL DUTT YADAV, J.
Sri Abraham T.J., S/o Late Sri Joseph T.A. – Appellant
Versus
Sri B.S. Yediyurappa S/o Late Sri Siddalingappa – Respondents
Criminal Petition No.5659 of 2021
Decided on : 07-09-2022

Point of Law: Bare perusal of Section 17A of P.C. Act would indicate bar for enquiry, inquiry or investigation into an offence under the P.C. Act is on the Police Officer.

Headnote:

Code of Criminal Procedure, 1973 - Section 156(3), 200, 154, 173(2), 190, (1)(b), 202, 203, 204, 197 - P.C. ACT, 1947 - Section 17A - Prevention of Corruption Act, 1988 - Sections 7, 8, 9, 10, 13, 3(1), 19 - Indian Penal Code, 1860 - Sections 383, 384, 415, 418, 420, 34, 120B - Prevention of Money Laundering Act, 2002 - Sections 3, 4, 45 - Seeking Sanction for Prosecuting - Validity of Order - Whether sanction of competent authority is required before passing an order for investigation under section 156(3) of Cr.P.C - Whether requirement of previous approval from requisite authority before conducting any enquiry, inquiry or investigation into an offence under section 17a of p.c. act, would act as a bar on special judge for passing an order under section 156(3) of Cr.P.C. vis-à-vis public servants, i.e., accused nos.1, 6 and 7 - Whether in absence of any response from competent authority regarding grant of sanction sought against accused nos. 6 and 7 ought special judge have proceeded on premise of deemed sanction as contended - Whether special judge has erred in dismissing complaint in its entirety even as against accused other than public servants, viz., accused nos. 2, 3, 4, 5, 8 and 9 only on ground of rejection of sanction against accused no.1 and absence of sanction for prosecution of accused nos.6 and 7 - Whether an order for directing investigation under Sec.156(3) of Cr.P.C., can be passed in relation to public servant in absence of valid sanction - Whether sanction will be deemed to have been granted, if no decision is taken within a prescribed period for referring case for investigation under section 156(3) of Cr.P.C. [Para 36.]

Finding of the Court: An important fact to take note of, which ought to have been, but has not been considered by either Trial Court or High Court, is that appellant had sought production of DVRs containing audio-video recording of CCTV footage of second respondent chamber - As a matter of fact, Institute itself had addressed communications to second respondent directing production of recordings, noting that these recordings had been handed over on his oral direction by then Registrar of Institute as he was Vice-Chancellor - Due to lack of response despite multiple attempts, Institute had even filed a complaint with PS Gole Ka Mandir for registering an FIR against second respondent for theft of DVRs - Therefore, in such cases, where not only does Magistrate find commission of a cognizable offence alleged on a prima facie reading of complaint but also such facts are brought to Magistrate's notice which clearly indicate need for police investigation, discretion granted in Section 156(3) can only be read as it being Magistrate's duty to order police to investigate - In cases such as present, wherein, there is alleged to be documentary or other evidence in physical possession of accused or other individuals which police would be best placed to investigate and retrieve using its powers under CrPC, matter ought to be sent to police for investigation - It must be noted that in terms of Section 19 of P.C. Act, no request can be made for sanction by a person other than "Police Officer or an Officer of an Investigation Agency or other law enforcement authorities, ....", which is however subject to further rider that such person other than Police Officer may be called upon to obtain sanction from appropriate Authority by Court where complaint filed by him has not been dismissed under Section 203 of Cr.P.C. and Court intends to continue proceedings against Accused - Accordingly, rejection of such request is liable to be ignored, as such request was not made either by Police Officer or an Officer of Investigation Agency or other law enforcement Authorities; nor pursuant to order of Court as contemplated under First Proviso to Section 19 of P.C. Act - Thus, rejection of sanction for prosecution would not come in way of continuance of proceedings against Accused No.1 upon restoration of complaint - Sanction as regards Accused No.1 would be an aspect for consideration at appropriate stage as per law as has been made out in terms of discussion above.

Result: Petition allowed in part.