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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Dated the 3rd day of August 2012

: B E F O R E :

HON’BLE MR.JUSTICE : V.JAGANNATHAN

WRIT PETITION No. 14047 / 2012 (GM-RES)

BETWEEN :

Sri B.V.Acharya,Senior Advocate,S/o late Ramachandra Acharya,Aged about 78 years,No.42, 5th Main Road,Jayamahal Extension,Bangalore – 560 046.

…Petitioner

( By Sri R.N.Narasimhamurthy & Sri AshokHarnahalli, Senior Advocates, along withSri Sreenivas Rao, Sri Vishal Badni,

Sri Shahul Hameed and Sri Sandesh J.Chouta, Advocates. )

A N D :

1. Sri N.Venkateshaiah,S/o late Narayanappa,Aged about 94 years,No.7, Shivaganga Mutt Road,Chamarajapete, Bangalore-18.

2. The State by Lokayuktha Police,Bangalore, represented bythe Public Prosecutor,High Court Buildings, Bangalore.

…Respondents

( By Sri Ramesh Gupta, Senior Advocate,along with Sri B.Rajendra Prasad, Advocate, &

Sri Shivananda Raj for Kochhar & Co.,Advocates for R-1.

Sri B.A.Belliappa, Advocate for R-2. )

R

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Writ Petition filed under Articles 226 and 227 of the

Constitution of India read with Section 482 of the Cr.P.C.

praying to issue a writ of certiorari quashing the impugned

order dated 21.4.2012 in P.C.R.No. 19/2012 passed by the

Court of the XXIII Addl. City Civil & Sessions Judge (Special

Court, Lokayuktha), Bangalore, and also to quash the

complaint, which is the basis of the said case.

This petition coming on for orders this day, the court

made the following :

O R D E R

The petitioner, a senior advocate, former Advocate

General of the State and the Special Public Prosecutor

in the case involving the Chief Minister of Tamil Nadu

and presently a member of the Law Commission of

India, is before this court calling in question the order of

the Special Judge under the Prevention of Corruption

Act referring the complaint of R-1 to the Superintendent

of Police for investigation under Section 156(3) of the

Cr.P.C.

2. R-1 filed the complaint on 7.3.2012 against five

persons including the petitioner and alleged in the

complaint thus: It was contended in the complaint that

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the complainant was the author and trustee of a public

charitable trust called “Smt.Lakshmamma

B.M.Sreenivasaiah Charities” and the trust was a

registered trust and came into existence on 14.12.1995.

It was also averred in the complaint that the trust was

founded as per the will of late B.S.Narayan, son of late

B.M.Sreenivasaiah and as per the trust deed, the

complainant and one Sathyanarayana Swamy were

appointed as the first two trustees apart from three

other trustees being there.

3. In the year 1946, B.M.Sreenivasaiah College of

Engineering came into being and in course of time,

many others joined as trustees and the said B.M.S.

College of Engineering started functioning with the

financial assistance and aid from the Government of

Mysore. The Government of Karnataka later on

provided financial assistance of Rs.1,00,000/- as loan

to establish the B.M.S. College of Engineering. After

referring to the financial assistance received from the

Government during various periods, it was averred in

the complaint that the Government notification

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appointing one Mr. M.R.Srinivasa Murthy as the donor

trustee in place of deceased Narayan was questioned by

Smt. Ragini Narayan, wife of B.S.Narayan, and that led

to a suit being filed in O.S.No. 2680/2000 by Smt.

Ragini Narayan, the third accused in the present

complaint.

4. Thereafter, after the judgment of the civil court

decreeing the suit of the plaintiff, aforesaid Ragini

Narayan, the donor trustee, appointed the petitioner

herein and two others viz., Vijay Gore and

Dr.P.Dayananda Pai, as member trustees. It is then

contended in the complaint that the council of trustees

of the B.M.S. Educational Trust, in the meeting held on

19.7.2010, enhanced the monthly remuneration from

Rs.1,00,000/- to Rs.2,00,000/-, though the amount

initially was only Rs.10,000/- per month and the

complainant also refers to the various benefits conferred

on the trustees as well as the Chairman, like purchase

of Toyota and Innova car and the payment made to

trustees also being very high, the bank balance under

F.D. head coming down.

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5. The complaint also mentions that huge sums of

money were being collected as donation from the

students overlooking the merit candidates and the

trustees, therefore, are answerable for the excess

expenditure incurred and the petitioner herein, being

the Chairman of the trust, is also answerable for the

unaccounted donations and for misappropriating the

funds in the name of developmental activities. It was

also alleged in the complaint that as the accused

persons come within the meaning of ‘public servant’ the

offences under the P.C.Act also get attracted against

them.

6. Referring to the other factors like paying huge

amounts towards lease and house rent allowances to

the trustees and foreign tours being permitted to be

taken by them, the complainant, therefore, alleged that

the persons named as the accused in the complaint

have committed the offences punishable under Sections

409 and 120-B of the I.P.C. and Sections 13(1)(d) and (e)

read with 13(2) of the P.C.Act, 1988. As the trust was

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also getting financial assistance from the Government,

the aforesaid acts on the part of the accused, therefore,

are indicative of the trust headed by the petitioner

herein having indulged in misappropriation of funds by

increasing the honorarium and perks when the money

involved is public money and, therefore, the

complainant sought for a comprehensive investigation

to be taken up by referring the matter to the

Lokayuktha police under Section 156(3) of the Cr.P.C.

7. The learned judge of the court below, after

referring to the aforesaid averments in the complaint,

passed the impugned order referring the matter to the

Superintendent of Police for investigation under Section

156(3) of the Cr.P.C. and to report by 23.5.2012. It is

this order of the court below that has given rise to this

petition under Articles 226 and 227 of the Constitution

of India read with Section 482 of the Cr.P.C.

8. I have heard learned senior counsel Shri

R.N.Narasimhamurthy and learned senior counsel Shri

Ashok Harnahalli for the petitioner and learned senior

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counsel Shri Ramesh Gupta and also learned counsel

Shri Shivananda Raj for R-1 complainant, and learned

counsel Shri B.A.Belliappa for R-2 Lokayuktha, and

perused the material placed.

9. Shri R.N.Narasimhamurthy, learned senior

counsel, opening the arguments on behalf of the

petitioner, at the outset, submitted that the procedure

followed by the learned Special Judge itself is unknown

to law inasmuch as the impugned order mentions that

the first complaint filed by R-1 herein was withdrawn

and then the second complaint came to be presented.

But, the order sheet of the court below does not indicate

that the complainant was permitted to withdraw the

first complaint. Therefore, for all purposes, two

complaints were before the court and the question of

permitting one complaint to be substituted by another

complaint does not arise.

10. The order sheet also reveals that, soon after filing

of the first complaint, the matter was posted to hear on

the maintainability of the complaint and without

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passing any order on that aspect, the court below could

not have taken into account the second complaint.

Therefore, the procedure followed is totally contrary to

law and a careful perusal of the order sheet of the court

below and the order passed, which is impugned in this

petition, do not make out as to which of the two

complaints were taken note of by the learned judge for

referring the case for investigation under Section 156(3)

of the Cr.P.C.

11. The next contention put forward by the learned

senior counsel is that, in respect of some of the

allegations made in the complaint, writ petitions were

pending in which C.B.I. inquiry was sought, but the

court below proceeded to refer the matter for

investigation although the subject matter of the

complaint was also seized by a superior court. This is

another defect in the procedure followed by the court

below.

12. As far as the position of the petitioner is

concerned, it is contended that the petitioner cannot be

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brought within the definition of ‘public servant’ as he

was only the Chairman of the Board of Trustees and,

therefore, the complaint before the Lokayuktha is not

maintainable. In the alternative, it was argued that if

the petitioner was to be construed as a public servant

within the meaning of the P.C.Act, then, the complaint,

without being accompanied by a valid sanction order,

could not have been entertained by the learned Special

Judge of the court below.

13. Referring to the averment at paragraph-23 of the

complaint, it is submitted that the complainant wants

the court to collect the evidence on his behalf inasmuch

as it is averred in the complaint that the complainant

has got no access to the documents and, therefore,

investigation is necessary to collect the material

evidence to unfold the charges levelled in the complaint.

The court, therefore, cannot collect the evidence on

behalf of the complainant so as to enable the

complainant to make out a case against the accused

persons. It is, therefore, argued that without any

material being there to substantiate the allegations

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made in the complaint, it cannot be said that the

complaint reveals the facts relating to cognizable

offences to be taken note of by the court.

14. Supplementing the aforesaid submissions of Sri.

R.N. Narasimha Murthy, learned senior counsel Shri

Ashok Harnahalli, referring to the contents of the

complaint, argued that no grants were received by the

B.M.S. Educational Trust, but only an industrial loan

was raised in 1957 and the salary grants were limited to

the payment of salary to the teachers. It was then

contended by Sri Ashok Harnahalli that the impugned

order of the court below does not indicate any

application of mind on the part of the trial court and

except reproducing the arguments of the counsel for the

complainant, the trial court took no steps to examine as

to whether the facts alleged in the complaint constituted

cognizable offences or not. The very fact that the trial

court had initially posted the matter to hear on

maintainability itself indicates that the complaint did

not make out any of the offences whatsoever against the

petitioner.

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15. As far as the manner of utilizing the funds is

concerned, it is submitted that merely because the

petitioner herein, as the Chairman of the trust, had

agreed with the other trustees to increase the

honorarium to Rs.2,00,000/- per month and if certain

amounts were also kept in the reserve fund, the said

acts by themselves will not constitute the offences

alleged against the petitioner. Moreover, some of the

issues raised in the complaint were also seized by this

court in Writ Petition No. 33135/2011 and when the

matter was thus pending before this court, the present

complaint came to be filed and the trial court ought to

have refrained itself from taking any action in the

matter under such circumstances.

16. Since the Lokayuktha insisted upon the

complainant to produce the documents in proof of the

allegations against the accused persons, the

complainant, therefore, wants the court to aid him by

collecting the material and documents so that he could

produce them before the Lokayuktha police. This being

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the sole aim and objective of the complainant, the court

below, therefore, could not have passed the impugned

order.

17. Referring to the two complaints, it is argued that

though the learned judge of the court below has

observed in the second paragraph of the impugned

order that on same set of facts a complaint was filed

earlier, the submission made is that, a perusal of the

two complaints would go to show that the facts are not

one and the same but entirely different. Referring to the

rejoinder filed by the petitioner in response to the

objections filed by the complainant in the present

petition, it is argued that the details of the investments

made have been explained in the rejoinder and that

would go to show that, in order to get certain benefits

under the Income Tax Act, the deposits were made.

18. The next contention put forward is that, the

present complaint has been lodged for extraneous

reasons because, the petitioner is also the Special

Public Prosecutor to conduct the disproportionate

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assets case against the present Chief Minister of Tamil

Nadu in Special C.C.No. 208/2004 and referring to the

various writ petitions filed, it is contended that the effort

was to see that the petitioner does not appear as Special

Public Prosecutor and, therefore, the present complaint

is ill-motivated only to ensure that the petitioner is

dislodged from the role of public prosecutor in the

aforementioned Special C.C.No. 208/2004. The further

submission made is that the petitioner resigned from

the post of Advocate General on 8.2.2012 and the

present complaint came to be filed much before that on

24.1.2012 and the second complaint was filed on

7.3.2012. Referring to all these events, the submission

made is that, the complaint now presented is with an

ulterior motive and, as such, the court below could not

have mechanically referred to matter to the S.P. for

investigation under Section 156(3) of the Cr.P.C.

19. Referring to the orders passed by this court in

various petitions, it is submitted that, as the attempt of

D.V.A.C. to engage its own counsel was unsuccessful

and secondly, as the further attempt made by the

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D.V.A.C. to seek further investigation in respect of the

aforementioned Special C.C.No. 208/2004 also being

unsuccessful and as the Apex Court also confirmed the

orders of this court in these matters, now, the present

complaint is filed to somehow see that the petitioner

does not continue to function as the Special Public

Prosecutor. Thus, the complaint is filed with an oblique

motive.

20. The next contention put forward by the learned

senior counsel Sri Ashok Harnahalli for the petitioner is

that, without proper sanction order accompanying the

complaint, the trial court could not have referred the

matter to the police for investigation under Section

156(3) of the Cr.P.C. even if it is taken into

consideration that the petitioner fits into the definition

of ‘public servant’ as defined in the P.C.Act. Therefore,

for want of sanction order, the complaint itself is not

maintainable and the learned judge of the court below,

therefore, has acted without jurisdiction. To fortify the

aforesaid submission, reliance is placed on the Apex

Court decision in the case of Subramanian Swamy Vs.

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Manmohan Singh, reported in (2012)3 SCC 64, and

particular reference was made to the argument

canvassed by the Attorney General and the said

contention being rejected by the Apex Court. Therefore,

in the light of the observations of the Apex Court in the

said case, the submission made is that, the court below

could not have taken notice of the complaint itself

without there being a sanction order to prosecute the

petitioner.

21. The learned senior counsel also argued that,

taking into account the entire scheme of the Cr.P.C. and

in particular, Sections 156, 190, 197 and 200 of the

Cr.P.C., the Magistrate dealing with a complaint under

Section 200 of the Cr.P.C. cannot be forced to take a

particular course of action only, without any discretion

left to him whatsoever. In other words, if the complaint

is accompanied by a sanction order, then, the

Magistrate will have several options open to him as are

contained in Sections 200 and 202 read with 190 of the

Cr.P.C. If, in a given case, the complaint is not

accompanied by a sanction order, then, the Magistrate

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will be compelled to refer the matter for investigation

under Section 156(3) of the Cr.P.C. and will be left with

no other option. Such a situation is not contemplated

under the scheme of the Cr.P.C.

22. As far as application of mind on the part of the

Magistrate is concerned, it is argued that even where

the court invokes the power under Section 156(3) of the

Cr.P.C., application of mind is necessary and, therefore,

merely because the court orders investigation under

Section 156(3) of the Cr.P.C. before actually taking

cognizance of the offence, it cannot be said that the

order passed under Section 156(3) of the Cr.P.C. does

not require any application of mind on the part of the

judge concerned. In other words, it is argued that

whether the stage is post-cognizance or pre-cognizance

stage, application of mind is essential. In the instant

case, the court below, without applying its mind and

without there being a sanction order, has mechanically

ordered investigation by the police under Section 156(3)

of the Cr.P.C. and, therefore, the said action on the part

of the court below is contrary to the law laid down by

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the Apex Court and hence, the impugned order is liable

to be set aside on that sole ground alone.

23. Another submission put forward by Shri Ashok

Harnahalli is that, the petitioner has high reputation

and the number of positions held by him reflects this.

Hence, the trial court could not have directed

investigation merely because a complaint is presented

making certain allegations against the accused persons.

Even if the entire complaint is taken as reflecting the

true facts, yet, the complaint allegations do not make

out any of the offences against the petitioner and thus

the court below committed serious error in not taking

into account these vital factors and the complaint itself

is nothing but an abuse of the process of law only to

tarnish the image of the petitioner.

24. Nextly it is contended that the only allegations

against the petitioner are that, he allowed the

honorarium to be increased and secondly, certain

amounts were kept in F.D. as development funds and,

as far as the capitation fee issue is concerned, the

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submission made is that the writ petition filed in this

regard by the students came to be dismissed by this

court. Therefore, none of the offences alleged in the

complaint can be said to have been, even remotely,

made out against the petitioner and thus, it is clear that

the entire complaint is nothing but an act of

vindictiveness with a malafide intention to harass the

petitioner. Such being the nature of the complaint, in

the backdrop of the positions held by the petitioner,

more particularly that of the Special Public Prosecutor

in Special C.C.No. 208/2004, the learned judge of the

trial court has totally failed to consider these aspects of

the matter and, as such, the impugned order of the

court below is liable to be set aside.

25. The aforesaid submissions are sought to be

supported by relying on the decisions reported in AIR

1992 SC 604, AIR 1990 SC 1962, 2012(3) SCC 64,

2009(6) SCC 372, 2003(8) SCC 361, 2004(3) Kar.L.J.

505, 1999 Crl.L.J. 3909, 2008(5) SCC 668, (2011)3 SCC

351, 2012 AIR SCW 663, 2012 Crl.L.J. 438, 1999

Crl.L.J. 3909, 2002(4) Kar.L.J. 490, 1998(3) Kar.L.J.

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169, 1982(1) SCC 561, AIR 2012 SC 521 and 2011(13)

SCC 412.

26. Sri Ramesh Gupta, learned senior counsel

appearing for R-1, repelling the aforesaid contentions

put forward by the learned senior counsel for the

petitioner, contended on his part that, when the

Magistrate acts under Section 156(3) of the Cr.P.C. and

refers the case for investigation to the police, it is the

pre-cognizance stage and at this stage, application of

mind by the Magistrate does not arise and, therefore,

the court below committed no error in passing the

impugned order. Some distinction was sought to be

drawn between taking action under Section 156(3) of

the Cr.P.C. and proceeding under Section 200 of the

Cr.P.C. after taking cognizance and then going by the

provisions of Section 202 of the Cr.P.C. onwards.

Therefore, it is argued that, at a pre-cognizance stage,

the complainant is not required to produce any sanction

order to prosecute the petitioner and the question of the

sanction will arise only at the stage of taking cognizance

of the offence. In this regard, the provisions contained

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in Section 19 of the P.C.Act, 1988 as well as Section

197 of the Cr.P.C. were referred to contend that the

issue of sanction order will arise only at the stage of

taking cognizance and not before that. Hence, the

contentions urged by the learned senior counsel for the

petitioner in this regard will have to be rejected.

27. Nextly it is argued by the learned senior counsel

for R-1, by referring to the contents of the complaint,

that the complaint does disclose the allegations relating

to cognizable offences and the manner of the funds

being spent by the trust of which the petitioner is the

Chairman, goes to show that the amount of honorarium

was raised from Rs.10,000/- to Rs.1,00,000/- and then

to Rs.2,00,000/- and secondly, the funds of the trust

have been siphoned off towards various benefits like

providing various luxurious facilities to the trust

members. Mere allegations in the complaint are

sufficient for the court to proceed with the matter and it

is, therefore, contended that after the receipt of the

report from the police, the court may or may not

proceed with the matter and, therefore, it is too

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premature to say that the complaint must be

accompanied by the sanction order to prosecute the

petitioner.

28. As far as the two complaints issue is concerned, it

is argued that, even where the first complaint is

dismissed, the second complaint can be maintained

and, in the instant case, the order passed by the

learned Special Judge itself indicates that the first

complaint was withdrawn following a memo filed and,

therefore, there is no question of two complaints being

there before the court.

29. As regards the mismanagement by the trust is

concerned, the learned senior counsel referred to the

affidavit filed by the State of Karnataka before the Apex

Court in S.L.P.No. 1097/2010 (now S.L.P.No.

25717/2010) to contend that the State Government also

was of the view that there has been no proper

management of the funds by the trust. In order to drive

home the point that the petitioner is a public servant

and that the action taken by the learned trial judge

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under Section 156(3) of the Cr.P.C. being at a pre-

cognizance stage and, therefore, no sanction order need

accompany the complaint, the learned senior counsel

for R-1 placed reliance on several decisions of the Apex

Court and in particular to the decision of the Apex

Court in the case of Srinivas Gundluri Vs. SEPCO Electric

Power Construction Corporation, reported in (2010)8 SCC

206, and the decision in P.V.Narasimha Rao Vs. State

(CBI/SPE), reported in 1998 SCC (Cri) 1108.

30. As far as the irregularities or the procedural errors

committed by the trial court are concerned, to counter

the arguments of senior counsel for the petitioner,

reliance is placed by learned senior counsel Sri Ramesh

Gupta on the decisions of the Apex Court reported in

AIR 1962 SC 876 as well as the other decisions reported

in 1985(2) VII Crimes 132, 1997 Crl.L.J. 4383, 2002 III

AD Delhi 1051, 2003 Crl.L.J. 866, 2004 Crl.L.J. 2633,

2010(2) SCC (Cri) 1085, 2003 SCC (Cri) 1305, (1984)2

SCC 500, (2007)1 SCC 1, (1998)4 SCC 626, 2011(11)

ILR-CUT-894, (2006)6 SCC 728 and (2012)1 SCC 130.

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31. The submission therefore made is that the

impugned order of the learned Special Judge does not

call for any interference by this court under Articles 226

and 227 of the Constitution of India or under Section

482 of the Cr.P.C.

32. Concerning the decision of the Apex Court in

Subramanian Swamy’s case on which reliance is placed

by the learned senior counsel for the petitioner, the

submission made by learned counsel Sri Shivananda

Raj is that, the Apex Court was seized with the question

as to the time within which sanction order has to be

passed and, therefore, the said decision has no

application to the case on hand and hence, the petition

be dismissed.

33. In the light of the aforesaid contentions put

forward by the learned senior counsel and the learned

counsel for the parties, whether the order passed by the

court below referring the matter to the investigation

under Section 156(3) of the Cr.P.C. can be held to be

sustainable in law is the point for consideration. This,

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in turn, would depend upon answering the contentions

raised by the learned senior counsel appearing for the

petitioner.

34. It is the contention of the learned senior counsel

for the petitioner that the court while exercising the

power u/s 156(3) of the Cr.P.C has to apply its mind

and the act of referring the matter for investigation

under the said section is not an empty formality,

whereas the counter submission made by the learned

senior counsel Sri. Ramesh Gupta for the other side is

that, no application of mind is required when the matter

is referred by the Magistrate or the Special Judge, as

the case may be, for investigation under section 156(3)

of the Cr.P.C. The position in law therefore requires to

be taken note of in this connection.

35. The Apex Court in the case of Jamuna Singh Vs

Bhadai Shah has held that, when on a petition of

complaint being filed before him, the Magistrate applies

his mind for proceeding under the various provisions of

Chapter XVI of the Cr.P.C. and he must be held to have

25

taken cognizance for the offences mentioned in the

complaint. When, however, he applies his mind, not for

the purpose but for purposes of ordering investigation

u/s 156(3) or issues a search warrant for the purpose of

investigation, he cannot be said to have taken

cognizance of any offence. Thus, it is clear that

application of mind is required even while exercising

power u/s 156(3) of the Cr.P.C.

36. The very same principle was also laid down by the

Apex Court in another decision in the case of Gopal Das

Vs State of Assam (AIR 1961 S.C. 986).

37. This court in the case of P.R. Venugopal Vs S.M.

Krishna, the Chief Minister of Karnataka and others

(2003(6) K.L.J.507) has also taken the view that, to

make a reference to police for investigation, the

Magistrate has to apply his mind as to whether the

allegations in the complaint are sufficient to make such

order for investigation u/s 156(3) of the Cr.P.C.

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38. The decision of this court in the case of Guruduth

Prabhu & others Vs M.S.Krishna Bhat (1999 Crl.L.J.

3909) is also to the effect that, the order of the

Magistrate directing investigation u/s 156(3) without

applying his mind to allegations made in the complaint,

will be without jurisdiction and the High Court either

u/s 482 or under Article 226 of the Constitution is

empowered to quash the investigation.

39. Thus, it is clear from the aforesaid principles laid

down by the Apex Court and also by this court that,

application of mind is necessary even when the Special

Judge refers the case for investigation u/s 156(3) of

Cr.P.C. The same principles were also reiterated by the

Apex Court in yet another decision in the case of

Maksud Saiyed Vs State of Gujarat ((2008)5 SCC 668).

It was also held in the said case that, the Magistrate

ordering police investigation u/s 156(3) of Cr.P.C. has to

apply his mind and in the said case before it, the Apex

Court found that there was non application of mind by

the Magistrate while ordering police investigation u/s

156(3) of Cr.P.C.

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40. Therefore, the contention of the learned senior

counsel for the respondent that no application of mind

is necessary while ordering investigation u/s 156(3) of

Cr.P.C. has to be rejected.

41. The next aspect which will have to be considered

is as to whether the petitioner comes within the

definition ‘public servant’ as defined in the Prevention of

Corruption Act, 1988. It is contended by the learned

senior counsel for the petitioner that the petitioner

being the Chairman of the BMS Educational Trust is

not a ‘public servant’ and it is also argued in the

alternative that, if he comes within the said definition of

‘public servant’, then sanction is a prerequisite. On the

other hand, contention of the learned senior counsel

Sri. Ramesh Gupta for the respondent is that, the

petitioner comes within the definition of ‘public servant’.

42. I have considered the aforesaid contentions in the

light of the stand taken by the parties in the petition as

well as the objections filed by the respondent.

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43. The definition of ‘public servant’ u/s 2(c) of the

Prevention of Corruption Act, 1988 provides under

Clauses (viii) and (xii) as under:

“(viii) any person who holds an office by

virtue of which he is authorised or required

to perform any public duty.

(xii) any person who is an office-bearer or

an employee of an educational, scientific,

social, cultural or other institution, in

whatever manner established, receiving or

having received any financial assistance

from the Central Government or any State

Government, or local or other public

authority.”

44. At the time of presentation of the complaint, the

fact that the petitioner was and continues to be the

Chairman of the BMS Educational Trust is not in

dispute. The complaint also mentions that the said

Trust has received financial assistance from the

Government from time to time and the details of the

grant/assistance received are also mentioned in the

complaint. Even in the objections filed by the

respondent No.1 to the writ petition, details of the

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amounts received by the aforementioned Trust is also

mentioned. The object of the aforesaid Trust is

imparting education, is also not in dispute. It is the

students who have to form the public in general who are

benefitted from the courses conducted by the aforesaid

Trust is also not in controversy. Under the said

circumstances, it has to be held that the petitioner

satisfies the requirement of section 2(c) (viii) as well as

(xii) of the Prevention of Corruption Act, 1988.

45. A Division Bench of the Orissa High Court in the

case of North Eastern Electricity Supply Company Vs

State of Orissa, while dealing with the definition of

‘public servant’ under section 2(b)(c) of the Prevention of

Corruption Act has held that the employees of North

Eastern Electricity Supply Company of Orissa are public

servants for the purpose of bringing them under the

purview of the provisions of the Prevention of

Corruption Act. Relying on the Apex Court decision in

the said case, the Division Bench of the Orissa High

Court has also observed that, when the petitioner-

company, though a private company, is found

30

discharging public functions/duties, its employees will

come under the definition of ‘public duty in discharge of

the State’, the public or entity at large has a interest

and they come under the definition of public servant

within the meaning of section 2(c) of the Prevention of

Corruption Act.

46. Learned senior counsel for R-1 has also placed

several decisions in this connection and one of them is

the decision of the Kerala High Court in K. Balaji

Iyengar Vs State of Kerala, wherein the court has taken

the view that the persons holding the offices of

Secretary and President of the Kerala Cricket

Association, being required to perform public duties by

virtue of the offices held by them, would therefore bring

them within the definition of Clause (viii) of Clause (c) of

Section 2 of the P.C.Act. Therefore, in the light of the

aforesaid decisions and aforementioned definition

clauses contained in the P.C.Act, no doubt arises as to

the position of the petitioner and I therefore hold that

the petitioner satisfies the definition of ‘public servant’

as defined in the P.C.Act. It may also be mentioned at

31

this juncture that, apart from being the Chairman of the

B.M.S.Educational Trust which position he continues to

hold, the petitioner was also the Advocate General of

this State at the time when the complaint was presented

on 24.1.2012 and he also holds the post of a Member of

the Law Commission of India. As we are concerned in

this case with regard to the complaint allegations and

as the petitioner continues to be the Chairman of the

BMS Educational Trust, as such, the contention of the

learned senior counsel for the petitioner, that the

petitioner is not a ‘public servant’ cannot be accepted. I

hold that the petitioner comes well within the definition

of ‘public servant’ as contained in Section 2(c) of the

P.C.Act.

47. The next contention put forward by the learned

senior counsel Sri.T.N. Narasimhamurthy and also Sri.

Ashok Harnahalli for the petitioner is that, if the

petitioner is to be construed as a ‘public servant’ coming

within the ambit of section 2(c) of the P.C.Act, then the

order of the court below directing investigation u/s

156(3) of the Cr.P.C will be without jurisdiction for want

32

of sanction. This takes us to the relevant provision of

the P.C.Act u/s 19(1). The said provision of law is as

under:

19 (1). No court shall take cognizance of an

offence punishable under Sections 7, 10, 11,

13 and 15 alleged to have been committed by

a public servant, except with the previous

sanction,-

(a) in the case of a person who is employed

in connection with the affairs of the

Union and is not removable from his

office save by or with the sanction of the

Central Government, of that Government;

(b) in the case of a person who is employed

in connection with the affairs of a State

and is not removable from his office save

by or with the sanction of the State

Government, of that Government;

(c) in the case of any other person, of the

authority competent to remove him from

his office.

48. Much emphasis was laid by the learned senior

counsel Sri.Ramesh Gupta for R-1 that the expression

‘cognizance’ appearing in Section 19(1) will have to be

33

construed as the post-cognizance stage and not pre-

cognizance stage and therefore the requirement of

sanction does not arise prior to taking cognizance of the

offences punishable under Sections 7, 10, 11, 13 and

15 of the P.C.Act.

49. On the other hand, the contention of the learned

senior counsel for the petitioner is that, even before the

cognizance is taken in respect of a private complaint,

the necessity to obtain the sanction order from the

competent authority does arise. Both sides have relied

on several decisions in this connection and before

considering the aforesaid contentions, it becomes

necessary to understand what the expression

‘cognizance’ means.

50. Dealing with the expression ‘cognizance’ in section

197 of the Cr.P.C. the Apex Court through a 3 Judge

Bench in the case of State of Uttar Pradesh Vs. Paras

Nath Singh ((2009)6 SCC 372) has considered the

meaning of the term ‘cognizance’ and has held at para.6

thus:

34

“ The jurisdiction of a Magistrate to take

cognizance of any offence is provided by

Section 190 of the Code, either on receipt of

a complaint, or upon a police report or upon

information received from any person other

than police officer, or upon his knowledge

that such offence has been committed. So

far as public servants are concerned the

cognizance of any offence, by any court, is

barred by Section 197 of the Code unless

sanction is obtained from the appropriate

authority, if the offence, alleged to have been

committed, was in discharge of the official

duty. The Section not only specifies the

persons to whom the protection is afforded

but it also specifies the conditions and

circumstances in which it shall be available

and the effect in law if the conditions are

satisfied. The mandatory character of the

protection afforded to a public servant is

brought out by the expression, 'no court

shall take cognizance of such offence except

with the previous sanction'. Use of the

words, 'no' and 'shall' make it abundantly

clear that the bar on the exercise of power of

the court to take cognizance of any offence is

absolute and complete. The very cognizance

35

is barred. That is the complaint cannot be

taken notice of. According to Black's law

Dictionary the word 'cognizance' means

'Jurisdiction' or 'the exercise of jurisdiction'

or 'power to try and determine causes'. In

common parlance it means taking notice of.

A court, therefore, is precluded from

entertaining a complaint or taking notice of

it or exercising jurisdiction if it is in respect

of a public servant who is accused of an

offence alleged to have committed during

discharge of his official duty.” (emphasis

supplied)

51. The Apex Court in the case of State of West

Bengal Vs Mohd. Khalid & others ((1995)1 SCC 684)

which judgment is referred to in the case of

Subramanian Swamy Vs Manmohan Singh ((2012)3

SCC 64) has observed thus at para.38:

“ It is necessary to mention here that taking

cognizance of an offence is not the same thing

as issuance of process. Cognizance is taken

at the initial stage when the Magistrate

applies his judicial mind to the facts

mentioned in a complaint or to a police report

or upon information received from any other

36

person that an offence has been committed.

The issuance of process is at a subsequent

stage when after considering the material

placed before it the court decides to proceed

against the offenders against whom a prima

facie case is made out.”

52. The Law Lexicon of Sri. P. Ramanatha Iyer (2nd

Edition Reprint 2008) has the following meaning

assigned to the term ‘cognizance’ at page.352.

“ Cognizance Judicial notice or knowledge;

the judicial recognition or hearing of a cause;

jurisdiction, or right to try and determine

causes. It is a word of the largest import:

embracing all power, authority and

jurisdiction. The word “Cognizance” is used

in the sense of “the right to take notice of and

determine a cause”. Taking cognizance does

not involve any formal action, or indeed action

of any kind, but occurs as soon as a

Magistrate, as such, applies his mind of the

suspected commission of an offence. (37 Cal

412: 14 CWN 512: 6 IC 8: 11 Cr L.J.217)

To take cognizance implies a conscious

volition on the part of the Magistrate. The

37

fact that a Magistrate passes an order

remanding the accused to custody pending

investigation does not lead to the inference

that he has taken cognizance, when he never

considers at all whether he is or is not taking

cognizance. (1936 AMLJ 85).

Cognizance takes place at a point when

a Magistrate first takes judicial notice of an

offence. This is the position whether the

magistrate takes cognizance of an offence on a

complaint, or on a police report, or upon

information of a person other than a police

officer. Darshan Singh Vs State of

Maharashtra, AIR 1971 SC 2372, 2374

(Sec.196-A).”

53. Thus, it is clear from the aforesaid meaning

assigned to the word ‘cognizance’ by the Apex Court, as

well as the meaning in the Law Lexicon referred to

above, that the word ‘cognizance’ has a wider

connotation than the limited or the narrow view

expressed by the learned senior counsel for the

respondent. As the Apex Court has held in Paras Nath

Singh’s case, the word ‘cognizance’ therefore means in

38

common term ‘taking notice of’, it is therefore not

confined only to the stage of taking cognizance of the

offence.

54. As far as the legal position concerning the stage at

which the power is exercised by the Magistrate/Special

Judge u/s 156(3) of the Cr.P.C, there can be no doubt

as to the said position inasmuch as, when the Special

Judge refers the complaint for investigation u/s 156(3),

it obviously means that he had not taken cognizance of

the offence and therefore it is a pre-cognizance stage

and cannot be equated with the post-cognizance stage

as rightly submitted by the learned senior counsel

appearing for both sides. If the Special Judge takes

cognizance of the offence upon the complaint presented

u/s 200 of the Cr.P.C., the next course of action to be

followed is u/s 202 of Cr.P.C. and thereon. Therefore,

the act of the Special Judge referring the case for

investigation u/s 156(3) is at pre-cognizance stage. The

decisions cited by the learned senior counsel for both

sides also lay down the said position in law.

39

55. The next contention put forward by the learned

senior counsel Sri. R.N.Narasimhamurthy and Sri.

Ashok Harnahalli for the petitioner is that, even though

the power to order investigation u/s 156(3) can be

exercised by the Magistrate of Special Judge at a pre-

cognizance stage, yet the requirement of the sanction

order being obtained by the complainant cannot be

dispensed with. In other words, it is argued that the

requirement of sanction is a prerequisite even for

presenting a private complaint u/s 200 of the Cr.P.C. in

respect of a public servant concerning the alleged

offence said to have been committed during the

discharge of public duty. Therefore, it is argued that

the private complaint without being accompanied by the

sanction order, itself is not maintainable and the

Special Judge cannot even take notice of the private

complaint. Reliance is placed in this regard by the

learned senior counsel for the petitioner particularly on

the Apex Court decision in Subramanian Swamy’s case

referred to earlier.

40

56. In the case of Subramanian Swamy Vs Manmohan

Singh ((2012)3 SCC 64) the Apex Court considered the

contention raised before it as to the stage at which the

question as regards sanction order arises. It was

contended before the Apex Court by the Attorney

General that the question of sanction order arises only

at the time of taking cognizance and not before that.

The said contention was rejected by the Apex Court

and it was held thus at para.34 and para.64.

“ 34. The argument of the learned

Attorney General that the question of

granting sanction for prosecution of a public

servant charged with an offence under

the 1988 Act arises only at the stage

of taking cognizance and not before

that is neither supported by the plain

language of the section nor the

judicial precedents relied upon by him.

Though, the term `cognizance' has not been

defined either in the 1988 Act or the Cr.P.C,

the same has acquired a definite meaning

and connotation from various judicial

precedents. In legal parlance cognizance is

"taking judicial notice by the court of law,

possessing jurisdiction, on a cause or matter

41

presented before it so as to decide whether

there is any basis for initiating proceedings

and determination of the cause or

matter judicially".

64. I also entirely agree with the

conclusion of learned brother Singhvi,

J., that the argument of the learned

Attorney General that question for

granting sanction for prosecution of a

public servant charged with offences

under the 1988 Act arises only at the

stage of cognizance is also not acceptable. In

formulating this submission, the learned

Attorney General substantially

advanced two contentions. The first

contention is that an order granting

sanction is not required to be filed

along with a complaint in connection

with a prosecution under Section 19

of the P.C. Act. The aforesaid

submission is contrary to the settled

law laid down by this Court in

various judgments. (emphasis supplied)

64.1. Recently a unanimous three-judge

Bench decision of this Court in the

case of State of Uttar Pradesh vs.

Paras Nath Singh, [(2009) 6 SCC 372],

42

speaking through Justice Pasayat and

construing the requirement of sanction,

held that without sanction:

“6….. ‘10…….The very cognizance is

barred. That is, the complaint cannot be

taken notice of. According to Black's Law

Dictionary the word `cognizance'

means `jurisdiction' or `the exercise

of jurisdiction' or `power to try and

determine causes'. In common parlance,

it means taking notice of. A court,

therefore, is precluded from entertaining a

complaint or taking notice of it or

exercising jurisdiction if it is in

respect of a public servant who is

accused of an offence alleged to have

been committed during discharge of

his official duty."

64.2. The other contention of the

learned Attorney General is that in

taking cognizance under the P.C. Act

the Court is guided by the provisions

under Section 190 of the Code and

in support of that contention the

learned Attorney General relied on

several judgments.”

43

57. It is therefore clear that the Apex Court negatived

the contention that the order of granting sanction is not

required to be filed along with the complaint in

connection with the prosecution and u/s 19 of the

P.C.Act. Similar contention that is now put forward by

Sri Ramesh Gupta also has to be met with the same

answer.

58. The object behind the requirement of sanction

order was also considered by the Apex Court in the very

same decision under consideration, at para.72 and

para.73. The observations made are as under:

“72. The right of private citizen to

file a complaint against a corrupt

public servant must be equated with

his right to access the Court in order to set

the criminal law in motion against a

corrupt public official. This right of

access, a Constitutional right should

not be burdened with unreasonable

fetters. When a private citizen

approaches a court of law against a corrupt

public servant who is highly placed,

what is at stake is not only a

vindication of personal grievance of

44

that citizen but also the question of

bringing orderliness in society and

maintaining equal balance in the rule of

law.

73. It was pointed out by the

Constitution Bench of this Court in

Sheonandan Paswan vs. State of Bihar and

Others, (1987) 1 SCC 288 at page 315:

"14.......It is now settled law that a

criminal proceeding is not a proceeding

for vindication of a private grievance

but it is a proceeding initiated for the

purpose of punishment to the offender in the

interest of the society. It is for

maintaining stability and orderliness in the

society that certain acts are constituted

offences and the right is given to any

citizen to set the machinery of the

criminal law in motion for the purpose of

bringing the offender to book. It is for

this reason that in A.R. Antulay Vs.

R.S. Nayak this Court pointed out

that (SCC p. 509, para 6)

"6…..Punishment of the offender in

the interest of the society being one of

the objects behind penal statutes

45

enacted for larger good of the society,

right to initiate proceedings cannot

be whittled down, circumscribed or

fettered by putting it into a strait

jacket formula of locus standi......"

59. At para.74 of the decision, the Apex Court has

held that the protection given u/s 19 to a public servant

are not available to other citizens and public servants

are treated as a special class of persons enjoying the

said protection so that they can perform their duties

without fear and favour and without threats of

malicious prosecution. However, the court also added

that the protection given cannot become a shield to

protect corrupt officials. After thus holding as regards

the requirement of sanction in respect of a private

complaint, at para.81 of the judgment certain guidelines

were also laid down for the Parliament to consider. One

such guideline is at 81(c) which reads as under:

“ 81(c) At the end of the extended period of

time limit, if no decision is taken, sanction

will be deemed to have been granted to the

proposal for prosecution, and the prosecuting

46

agency or the private complainant will

proceed to file the charge sheet/complaint in

the court to commence prosecution within 15

days of the expiry of the aforementioned time

limit.”

60. Thus, it is clear from the aforesaid decision of the

Apex Court that the requirement of sanction order

cannot be dispensed with even in respect of a private

complaint filed by a citizen against a public servant

alleging offences under the P.C. Act said to have been

committed while discharging public duty as a public

servant.

61. Can a private complaint without the sanction

order being accompanied be entertained by the court

while invoking power u/s 156(3) of the Cr.P.C is the

question that requires to be considered at this juncture.

62. Learned senior counsel Sri. Ashok Harnahalli for

the petitioner referring to the scheme of the Code of the

Criminal Procedure argued that, if a private complaint

as in the instant case, is not accompanied by a sanction

order, the Special Judge under the P.C.Act will have no

47

other option but to refer the complaint to the police for

investigation u/s 156(3) of the Cr.P.C. Thus, the

discretion vested with the Magistrate/Special Judge is

taken away and the Magistrate has to refer the private

complaint invariably to the police for investigation.

Such a situation is not contemplated by the scheme of

the Cr.P.C. The aforesaid submission also carries

sufficient force behind it. It has to be mentioned at this

juncture that the effect of directing the police to

investigate u/s 156(3) of the Cr.P.C. by the Magistrate

was also considered by the Andhra Pradesh High Court

in the case of Dr. G. Lakshminarayana Vs Inspector of

Police (1988(1) Crimes 880) and it was observed thus in

the said case.

“ If the Magistrates start referring the matters

to the police u/s 156(3) of the Cr.P.C. without

applying their minds, whether or not sanction

u/s 197(1) C.P.C. is necessary, the

consequences are likely to be bizarre, in that

public servants would become target of

unnecessary police investigation, even before

cases against them are taken cognizance of by

48

criminal courts, a situation clearly forbidden

by section197(1) Cr.P.C.”

The court went on to observe that :

“The course of action followed by the

Magistrate undoubtedly destroys the

protective umbrella of section 197(1) which

ensures independence to public officials from

functional point of view in respect of their

official acts by shielding them from being

dragged to courts.”

63. The aforesaid view read in the light of the Apex

Court’s observations in Subramanian Swamy’s case and

Paras Nath Singh’s case will therefore make it clear that

the Magistrate/Special Judge as the case may be,

cannot even take notice of the private complaint unless

the said complaint is accompanied by the sanction

order no matter whether the Special Judge acts at post-

cognizance stage or pre-cognizance stage. The very

observation of the Apex Court that the expression

‘cognizance’ in common terms it means ‘taking notice of’

and a court therefore is precluded from entertaining a

complaint and take notice of it, or exercising

49

jurisdiction, if it is in respect of a public servant alleged

to have committed during discharge of official duty,

therefore in effect implies that the door of the court will

remain shut unless the private complaint is also

accompanied by the sanction order from the

competent authority.

64. The Apex Court in the case of Birendra K. Singh

Vs State of Bihar (2008(1) SCC 498) has held while

dealing with the Section 197 of the Cr.P.C. without a

sanction order, the complaint cannot be entertained.

While dealing with the provision contained u/s 197 of

Cr.P.C., this court in the case of Sharanappa Vs

Govindareddy (1977 Crl. J.304) has held that sanction

to prosecute a public servant is a condition precedent.

65. Apart from the decisions already referred to, viz.,

Subramanian Swamy’s case and Paras Nath Singh’s

case, in the case of General Officer Commanding Vs

C.B.I. in Crl.A.No.257/11, the Apex Court, after

considering the relevant provisions relating to necessity

of sanction as contained in Section 197 of Cr.P.C.,

50

section 19 of the P.C.Act and section 7 of the Armed

Forces (Special Powers) Act, has summed up at para.55

the law thus:

“Thus, in view of the above, the law on the

issue of sanction can be summarised to the

effect that the question of sanction is of

paramount importance for protecting a public

servant who has acted in good faith while

performing his duty. In order that the public

servant may not be unnecessarily harassed

on a complaint of an unscrupulous person, it

is obligatory on the part of the executive

authority to protect him……..If the law

requires sanction, and the court proceeds

against a public servant without sanction, the

public servant has a right to raise the issue of

jurisdiction as the entire action may be

rendered void ab-initio for want of sanction.”

66. In the light of the aforesaid principles laid down by

the Apex Court, in the instant case, as the private

complaint was not accompanied by the sanction order

from the competent authority, the order of the learned

Special Judge will have to be held as without

jurisdiction.

51

67. The question that required to be addressed now is,

whether the powers under Section 482 of Cr.P.C. can be

exercised or invoked to quash the investigation.

68. Learned senior counsel Sri.Ramesh Guptha for the

1st respondent has placed reliance on several decisions

to contend that the courts do not interfere with the

investigation and the police can proceed with

investigation and submit their final report. No doubt, in

the decision referred to by learned senior counsel for 1st

respondent, the Apex Court has time and again laid

down the law that the powers of the High Court under

Section 482 of Cr.P.C. generally cannot be invoked to

quash the investigation. Even in the objections filed by

the 1st respondent, several decisions have been cited in

this regard. Nevertheless, there may be occasions when

the power under Section 482 of Cr.P.C. has to be

exercised even in the matter of the orders directing

police investigation.

69. The Apex Court in the well known case of State of

Hariyana vs. Bhajan Lal (AIR 1992 SC 604), has

52

summed up the position in regard to scope of Section

482 of Cr.P.C. and has formulated the guidelines as

regards the cases wherein such power should be

exercised. At para-108 of the decision in Bhajan Lal’s

case, the categories or kinds of cases have been referred

to, which are as under:-

1. Where the allegations made in the First

Information Report or the complaint,

even if they are taken at their face value

and accepted in their entirety do not

prima facie constitute any offence or

make out a case against the accused.

2. Where the allegations in the First

Information Report and other materials,

if any, accompanying the F.I.R. do not

disclose a cognizable offence, justifying

an investigation by police officers under

Section 156(1) of the Code except under

an order of a Magistrate within the

purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations

made in the FIR or complaint and the

evidence collected in support of the same

do not disclose the commission of any

53

offence and make out a case against the

accused.

4. Where, the allegations in the F.I.R do not

constitute a cognizable offence but

constitute only a non-cognizable offence,

no investigation is permitted by a police

officer without an order of a Magistrate

as contemplated under Section 155(2) of

Cr.P.C.

5. Where the allegations made in the FIR or

complaint are so absurd and inherent

improbable on the basis of which no

prude person can ever reach a just

conclusion that there is sufficient ground

for proceeding against the accused.

6. Where there is an express legal bar

engrafted in view of the provisions of the

Code or the concerned Act( under which

a criminal proceeding is instituted) to the

institution and continuance of the

proceedings and/or where there is a

specific provision in the Code or the

concerned Act, providing efficacious

redressal for the grievance of the

aggrieved party.

54

7. Where a criminal proceeding is

manifestly attended with malafide

and/or when the proceeding is

maliciously instituted with an ulterior

motive for wreaking vengeance to the

accused and with a view to spite him do

to private and personal grudge.

70. The Division Bench of this Court in Guruduth

Prabhu and others vs. M.S.Krishna Bhat (1999

Crl.L.J.3909), referred to earlier, has held that when the

allegations made in the complaint does not disclose

cognizable offence, the Magistrate has no jurisdiction to

order police investigation under Section 156(3) of

Cr.P.C. Such an order which is passed without

application of mind will be clearly an order without

jurisdiction and therefore, the order passed directing

police to investigate under Section 156(3) of Cr.P.C.

being passed without jurisdiction, is liable to be

quashed under Section 482 of Cr.P.C. or under Article

226 of the Constitution of India.

55

71. In the case of S.P.Shenbagamoorthy vs. Muka.

Stalin and another (2003 Crl.L.J.271), it has been held

by the Madras High Court that mere allegation without

any material in support thereof would not justify an

order for investigation under Section 156(3) of Cr.P.C.

72. Since this Court has now taken the view that the

private complaint by the 1st respondent not being

accompanied by a sanction order, cannot be entertained

at all by the Special Judge and the act of the Special

Judge therefore being without jurisdiction, a situation

therefore arisen to invoke the powers of this Court

under Section 482 of Cr.P.C. That apart, whether the

complaint allegations make out any cognizable offence

or offences, also has to be considered at this juncture.

73. While the Magistrate has the power to refer the

complaint for investigation under Section 156(3) of

Cr.P.C., the said reference can be made only by applying

mind to the contents of the complaint and the Special

Judge will have to ensure that the complaint contains

facts disclosing the offences alleged.

56

74. In the instant case, a plain reading of the

complaint would go to show that the allegations which

are directed against the petitioner are that, he as the

Chairman of the BMS Educational Trust agreed to

enhance the honorarium from Rs.1 lakh to Rs.2 lakh

per month which was earlier Rs.10,000/- per month.

The second allegation is that the huge amounts were

kept in Fixed Deposits in the name of the

Developmental Fund and the third allegation is that, the

trustees were given various facilities like providing them

with Toyota Innova cars and also giving them the benefit

of going on tours to places abroad and House rent

allowance etc. Thus, the gist of the complaint

allegations is that the public money was spent lavishly.

The complaint on the whole does not even mention

remotely that the petitioner as the Chairman has made

any pecuniary gains for himself from the aforesaid

decisions taken. No allegation whatsoever is there even

with regard to the petitioner having misappropriated the

funds of the Trust. Merely because certain amounts

were invested towards Developmental Fund, that itself

57

will not make it a case of misappropriation of funds.

Therefore, the learned Special Judge should have

considered the complaint carefully to find out as to

whether the facts mentioned in the complaint do

constitute the offences alleged.

75. In this connection, the decision of the Apex Court

in the case of M/s.Thermax Ltd. & Others vs. K.M.Johny

& others (2012 Crl.L.J.438) will have to be referred to.

That also is a case where the offences alleged were

under Sections 405, 406 and 420 r/w 34 of IPC and

after referring to the said Sections of the Cr.P.C. at

para-8 and on consideration of the complaint

allegations, the Apex Court has held thus at para-16:-

“16. The principles enunciated clearly

show that for proceedings under Section

156(3) of the Code, the complaint must

disclose relevant material ingredients of

Sections 405, 406, 420 r/w 34 of IPC. If there

is a flavour of civil nature, the same cannot be

agitated in the form of criminal proceeding”.

Again at para-29, the following observations were

made by the Apex Court:-

58

“29. The entire analysis of the complaint

with reference to the principles enunciated

above and the ingredients of Sections 405,

406, 420 r/w 34 of IPC clearly show that

there was inordinate delay and latches, the

complaint itself is inherently improbable

contains the flavour of civil nature and taking

note of the closure of earlier three complaints

that too after thorough investigation by the

police, we are of the view that the Magistrate

committed a grave error in calling for a report

under Section 156(3) of the Code from the

Crime Branch, Pune. In view of those

infirmities and in the light of Section 482 of

the Code, the High Court ought to have

quashed those proceedings to safeguard the

rights of the appellants. For these reasons,

the order passed by the Judicial Magistrate

First Class, Pimpri in C.C.No.12 of 2002 on

20.08.2007 and the judgment of the High

Court dated 11.01.2008 in Criminal Writ

Petition No.1622 of 2007 are set aside. The

complaint filed by respondent No.1 herein is

quashed”.

76. In the case on hand also, the allegations made in

the complaint, as rightly submitted by the learned

senior counsel Sri.Ashok Haranahalli, can be termed as

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having flavour of civil nature, inasmuch as, if the

complainant is not happy with the manner in which the

Trust is functioning, an option open to the complainant

is to take recourse to Section 92 of the C.P.C., but not

to resort to a private complaint under Section 200 of

Cr.P.C. As rightly submitted by the learned senior

counsel Sri.Ashok Haranahalli for the petitioner, even if

the entire complaint allegations are taken as true, in the

light of the averments made therein and those

contained in the objections filed to the writ petition,

they do not in my opinion constitute the offences alleged

against the petitioner. Therefore, when the allegations in

the complaint do not make out the ingredients of the

offences alleged, the law laid down by the Apex Court in

Bhajan Lal’s case, comes into application with all force.

77. The next contention put forward by the learned

senior counsel Sri.R.N.Narashimhamurthy as well as

the learned senior counsel Sri.Ashok Haranahalli for the

petitioner is that the petitioner having an illustrious

career behind him, has now been subjected to

prosecution on account of private complaint lodged by

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the 1st respondent herein and this has dented his

reputation. It is argued that apart from being a senior

counsel having long standing at the Bar, the petitioner

also held the office of the Advocate General of the State

of Karnataka and Spl.P.P. in the case in

Spl.C.C.No.208/04 involving the present Chief Minister

of the Tamil Nadu, and in addition, there is added

feather in the cap, in the form of being a Member of the

Law Commission of India. Therefore the present

complaint that is lodged against the petitioner is totally

ill motivated and vindictive in nature only to harass the

petitioner.

78. Learned senior counsel for the petitioner also

referred to various writ petitions, which came up before

this Court in connection with Spl.C.C.No.208/2004. It

was argued that the request of the DVAC to engage his

own counsel in Spl.C.C.No.208/04 was turned down by

this Court in Crl.P.No.3683/2011 by this Court and

secondly, another attempt made to permit the DVAC to

take up further investigation was also rejected by this

Court in the same criminal petition and these orders are

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also confirmed by the Apex Court. It is therefore argued

that now an attempt is being made to dislodge the

petitioner from functioning as Spl.P.P. in the

aforementioned Spl.C.C.No.208/2004. Not to be left out

of, is the submission, that the petitioner since has

resigned from the post of Advocate General, though he

continues to be a member of the Law Commission of

India. Such being the record of the petitioner, the

present complaint has therefore affected the petitioner’s

reputation, which cannot be redeemed.

79. The aforesaid submissions put forward also

carries sufficient weight behind it and in this

connection, it is also relevant to refer to two decisions.

80. In the case of State of Bihar vs. L.K.Advani ((2003)

8 SCC 361), the Apex Court has held that right to

reputation is a facet of right to life. A learned Single

Judge of this Court in the case of Prof.S.N.Hegde vs.

Lokayuktha (2004 (3) Kar.L.J.505), has also observed in

the said case that right to reputation forms part of his

fundamental right to life and the reputation of a man is

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a very precious thing which the man cherishes more in

his life. In fact, the entire exercise which a man

undertakes in life, is to acquire fame, name and

reputation. No office which a man occupies in life is

permanent. Therefore, before the removal of the man

from that office and damage to his reputation, what he

is afraid of, is damage to the reputation. Office does not

last but reputation is permanent. In fact, the reputation

outlives the man. Therefore, the wide interpretation

placed to the word ‘life’ in Article 21 of the Constitution,

leads to inevitable inference that Article 21 of the

Constitution not only should be taken to mean

protection of one’s life and liberty while a person is

alive, but equally covers reputation of a person during

his life and after. Therefore, it can be said that right to

reputation is a part of right to life, a fundamental right

guaranteed to every citizen under Article 21 of the

Constitution.

81. The aforesaid analysis of the material placed in

the light of the law bearing on the point, leads me to the

conclusion that the impugned order of the learned

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Spl.Judge directing investigation under Section 156(3)

of Cr.P.C. is void and without jurisdiction and as such,

investigation has to be quashed by exercising the

inherent powers of this Court under Section 482 of

Cr.P.C. At the same time, in the light of the nature of

the allegations made in the complaint, and the

complainant not even getting the sanction order from

the competent authority to prosecute the petitioner who

is a public servant, the complaint also deserves to be

dismissed by imposing cost as, according to the

petitioner’s counsel, the entire exercise has affected the

reputation of the petitioner, to a great extent.

82. Though the learned senior counsel

Sri.R.N.Narasimhamurthy and Sri.Ashok Haranahalli

also pointed out procedural errors committed by the

learned Spl.Judge in the matter of entertaining the

complaint, inasmuch as, according to learned senior

counsel, two complaints were there on record, one

presented on 24.01.2012 and second one on

07.03.2012, and it is also argued that the impugned

order mentions that the 1st complaint was withdrawn,

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but the order sheet does not reflect the said position

and as such, the procedure followed by the learned

Spl.Judge in referring one complaint to the police for

investigation and not saying anything about the other

complaint, is something unknown to the law and it was

further being pointed out that the number given as

P.C.R.No.11/12 pertains to the case of the complaint

filed by one Kabbalegowda, by producing the relevant

complaint along with a memo to contend that the trial

court has committed serious procedural errors, in my

view, though there is sufficient substance in the

aforesaid contentions put forward, in view of my

conclusion that the complaint itself could not have been

entertained at the first instance by the learned

Spl.Judge and the order directing investigation under

Section 156(3) of Cr.P.C. therefore is without

jurisdiction and the learned Spl.Judge could not have

even taken notice of the complaint for want of sanction

order, the errors pointed out therefore though taken

note of, it does not require any specific mention that

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notwithstanding the said defects pointed out, the

complaint itself is liable to be quashed.

83. Hence, I pass the following order:-

(i) The writ petition filed under Articles 226

& 227 of the Constitution of India r/w

Section 482 of Cr.P.C. is allowed.

(ii) The order passed by the learned Special

Judge directing the investigation under

Section 156(3) of Cr.P.C. as well as the

complaint stand quashed.

(iii) The complainant is directed to pay cost

of Rs.50,000/- to the petitioner within

three months from the date of receipt of

a copy of this order.

Sd/-

JUDGE

Ckc/Dvr/Srl.