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Sunday, April 12, 2015

there is no need for the registration of the FIR under Section 9 of the Lokayukta Act, in relation to the matters to be investigated under Section 8 of the Lokayukta Act. Therefore, in the light of the above contentions urged on behalf of the parties and in view of the law laid down by this Court under the Lokayukta Act and keeping in mind the apprehension expressed by the learned senior counsel on behalf of the appellant with regard to the investigation that may be carried out by the Lokayukta Police, we are of the considered view that the learned Judge of the High Court has rightly declined to exercise his inherent power to quash the proceedings, which does not call for our interference in this appeal. Having regard to the facts and circumstances of the case, it would be just and proper for this Court to see that justice is meted out and the case is fairly investigated by the Corps of Detectives (COD) of the State. The said investigation shall be entrusted to an officer of the rank equivalent to the Superintendent of Police in the COD.

                               NON REPORTABLE



                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION



                       CRIMINAL APPEAL NO.594 OF 2015
                 (ARISING OUT OF SLP (Crl.) NO. 108 OF 2015)


YUNUS ZIA                                     .........APPELLANT

                                     Vs.

STATE OF KARNATAKA & ANR.               ......RESPONDENTS



                                  O R D E R


V.GOPALA GOWDA, J.
        Leave granted.
    This appeal is directed against  the  impugned  order  dated  14.07.2014
passed in  Criminal  Petition  No.  2859  of  2012  by  the  High  Court  of
Judicature of Karnataka at Bangalore, wherein the High  Court  has  declined
to exercise its power under Section 482 of the Code of  Criminal  Procedure,
1973 (in short "CrPC"). The appellant has prayed to set aside the  same  and
quash the criminal proceedings initiated against  him  by  the  respondents,
urging various legal grounds.
Mr. L. Nageswar Rao, the learned senior counsel on behalf of  the  appellant
has submitted that  the  second  respondent,  Inspector  of  Police  of  the
Karnataka  Lokayukta  (in  short  "the  Lokayukta"),  has  made  allegations
against the appellant under Sections 120B and  420  of  the  IPC  and  under
Sections 13(1)(d) and 13(2) of the Prevention of Corruption  Act,  1988  (in
short "the P.C. Act").  A case has been registered by the second  respondent
and an FIR has been lodged against the appellant without following  the  due
procedure contemplated under Section 9 of the Karnataka Lokayukta Act,  1984
(in short "the Lokayukta Act") which deals with the provisions  relating  to
complaints and investigations, where any person can make a  complaint  under
the Lokayukta Act, either to  the  Lokayukta  or  to  the  Upalokayukta.  It
provides for making a complaint in the form of settlement  supported  by  an
affidavit in such forms and  in  such  manner  as  may  be  prescribed.  The
relevant provisions of the Lokayukta Act read thus:
"9. Provisions relating to complaints and investigations-
(1) Subject to the provisions of this Act, any person may make  a  complaint
under this Act to the Lokayukta or an Upalokayukta.
Provided that in case of a grievance, if the person  aggrieved  is  dead  or
for any reason, unable to act for himself, the complaint may be made  or  if
it is already made, may be prosecuted by his  legal  representatives  or  by
any other person who is authorized by him in writing in this behalf.
(2) Every complaint shall be made in the form of a  statement  supported  by
an affidavit and in such forms and in such manner as may be prescribed.
(3)Where the Lokayukta  or  an  Upalokayukta  proposes,  after  making  such
preliminary inquiry as he deemed fit  to  conduct  any  investigation  under
this Act, he.-
(a)  shall  forward  a  copy  of  the  complaint  and  in  the  case  of  an
investigation initiated suo-motu by him, the  opinion  recorded  by  him  to
initiate the investigation under sub-section (1) or (2),  as  the  case  may
be, of section 7;
to the public servant and the Competent Authority concerned;
(b) shall afford  to  such  public  servant  an  opportunity  to  offer  his
comments on such complaint or opinion recorded  under  sub-section  (1)  and
(2) of section 7 as the case may be;
(c) may make such order as to the safe custody of documents relevant to  the
investigation, as he deems fit.
(4) Save as aforesaid, the procedure for conducting any  such  investigation
shall be such, and may be held  either  in  public  or  in  camera,  as  the
Lokayukta or the Upalokayukta, as the case may be, considers appropriate  in
the circumstances of the case.
(5) The Lokayukta or the Upalokayukta may,  in  his  discretion,  refuse  to
investigate or cease to investigate any complaint involving a  grievance  or
an allegation, if in his opinion,-
(a)the complaint is frivolous or vexatious or is not made in good faith;
(b)There are no sufficient grounds for investigating or,  as  the  case  may
be, for continuing the investigation; or
(c)  Other  remedies  are  available  to  the   complainant   and   in   the
circumstances of the case it would be more proper  for  the  complainant  to
avail such remedies.
(6) In any case where the  Lokayukta  or  an  Upalokayukta  decides  not  to
entertain a complaint or to discontinue any investigation in  respect  of  a
complaint he shall record his reasons therefore and communicate the same  to
the complainant and the public servant concerned.
(7) The conduct of an investigation under this Act against a Public  servant
in respect of any action shall not affect such action, or any power or  duty
of any other public servant to take  further  action  with  respect  to  any
matter subject to the investigation."

Further, the learned senior  counsel  has  relied  upon  Section  7  of  the
Lokayukta Act, wherein on receipt of such complaint,  either  the  Lokayukta
or the Upalokayukta can make such preliminary enquiry as he may deem fit  to
conduct an investigation under the Act. He can initiate investigation  under
Section 7(1) & (2) of the Lokayukta  Act  on  the  public  servant  and  the
competent authority concerned as defined under Section 2(4)(a)to(d)  of  the
Lokayukta Act. The relevant provision of the Lokayukta Act reads thus:-
"7. Matters which may be investigated by the Lokayukta and an Upalokayukta.-

(1) Subject to the provisions of this Act,  the  Lokayukta  may  investigate
any action which is taken by or with the general or specific approval of,-
(a) (i)  the Chief Minister;
    (ii) a Minister;
    (iii)a member of the State Legislature;
    (iv) the Chairman and Vice-Chairman  (by  whatever  name  called)  or  a
member of an authority, board, or a committee, a statutory or  non-statutory
body or a  corporation  established  by  or  under  any  law  of  the  State
Legislature  including  a  society,  cooperative  society  or  a  Government
company within the meaning of  section  617  of  the  Companies  Act,  1956,
nominated by the State Government; in any case where a  complaint  involving
a grievance or an allegation is made in respect of such action.
(b) any other public servant holding a post  or  office  carrying  either  a
fixed pay, salary or remuneration of more than rupees  twenty  thousand  per
month or a pay scale the  minimum  of  which  is  more  than  rupees  twenty
thousand, as may be revised from time to time in any case where a  complaint
involving a grievance or an allegation is made in respect of such action  or
such action can be or could have been, in  the  opinion  of  the  Lokayukta,
recorded in writing, the subject of a grievance or an allegation.
(2) Subject to the provisions of the Act, an  Upalokayukta  may  investigate
any action which is taken by or with the general or  specific  approval  of,
any public servant not being the Chief Minister,  Minister,  Member  of  the
Legislature, Secretary or other public servant refereed  to  in  sub-section
(1), in any case where a complaint involving a grievance  or  an  allegation
is made in respect of such action or such action can be or could have  been,
in the opinion of the Upalokayukta, recorded in writing. the  subject  of  a
grievance or an allegation."

Section 8 of the Lokayukta Act further states that:-
"8. Matters not subject to investigation:-
(1)  Except as hereinafter provided, the Lokayukta or an Upalokayukta  shall
not conduct any investigation under this Act in  the  case  of  a  complaint
involving a grievance in respect of any action, -
(a)  if such action relates to any matter specified in the Second  Schedule;
or
(b) if the  complainant  has  or  had,  any  remedy  by  way     of  appeal,
revision, review or other proceedings   before any tribunal,  Court  officer
or other authority and has not availed of the same.
(2) The Lokayukta or an Upalokayukta shall not investigate, -
(a)  any action in respect of which a formal and  public  enquiry  has  been
ordered with the prior concurrence of the Lokayukta or an  Upalokayukta,  as
the case may be;
(b) any action in respect of a matter which has been referred  for  inquiry,
under the Commission of Inquiry Act, 1952 with the prior concurrence of  the
Lokayukta or an Upalokayukta, as the case may be;
(c) any complaint involving a grievance made after the expiry  of  a  period
of six months from the date on which the action  complained  against  become
known to the complainant; or
(d) any complaint involving an allegation made  after  the  expiry  of  five
years from the date on which the action complained  against  is  alleged  to
have taken place:
Provided that he may entertain a complaint referred to in  clauses  (c)  and
(d) if the complainant satisfies  that  he  had  sufficient  cause  for  not
making the complaint within the period specified in those clauses.
(3) In the case of any complaint involving a grievance, nothing in this  Act
shall be construed  as  empowering  the  Lokayukta  or  an  Upalokayukta  to
question any administrative action involving the exercise  of  a  discretion
except where he is satisfied that the elements involved in the  exercise  of
the discretion are absent to such an extent that the  discretion  can  prima
facie be regarded as having been improperly exercised."

The learned senior counsel for the  appellant  by  placing  strong  reliance
upon the aforesaid provisions of the Lokayukta Act, has  contended  that  it
is applicable in relation to the persons who were enumerated  under  Section
2 of the Lokayukta Act, which reads thus:-
"2. (1) xxx
(2) "Allegation" in relation to a public servant  includes  any  affirmation
that such public servant-
(a) has abused his position as such public servant to  obtain  any  gain  or
favour to himself or to any other person or to cause undue harm or  hardship
to any other person;
(b) was actuated in the discharge of his functions as  such  public  servant
by personal interest or improper or corrupt motives;
(c) is guilty of corruption, favouritism, nepotism or lack of  integrity  in
his capacity as such public servant;
                   OR
(d) has failed to act in accordance with the norms of integrity and  conduct
which ought to be followed by public servants  of  the  class  to  which  he
belongs:
(3) "Chief Minister" means the Chief Minister of Karnataka;
(4) "Competent Authority" in relation to a public servant means-
(a)  in the case of Chief Minister or a member  of  the  State  Legislature,
the Governor acting in his discretion;
(b) in the case of a Minister or Secretary, the Chief Minister;
(c) in the case  of  a  Government  servant  other  than  a  Secretary,  the
Government of Karnataka;
(d) in the case of any other  public  servant,  such  authority  as  may  be
prescribed;
(5) "corruption" includes anything made punishable under Chapter IX  of  the
Indian Penal Code or under the Prevention of Corruption Act, 1947;
(6) "Government Servant" means a  person  who  is  a  member  of  the  Civil
Services of the State of Karnataka or who holds a civil post or  is  serving
in connection with the affairs of the State of Karnataka  and  includes  any
such person whose services are temporarily placed at  the  disposal  of  the
Government of India, the Government of another State, a local  authority  or
any person whether incorporated or not, and also any person in  the  service
of the Central or another State Government or a  local  or  other  authority
whose services are temporarily placed at the disposal of the  Government  of
Karnataka."

After  placing  strong  reliance  upon  the  aforesaid  provisions  of   the
Lokayukta Act, the learned senior counsel has submitted that  the  appellant
herein is neither a government servant nor is or was  at  any  time  holding
the post of Chief Minister, Member of Legislature and Chairman  etc.  as  is
enumerated in the aforesaid Sections of the Lokayukta  Act.  Therefore,  the
suo-moto complaint  registered  by  the  second  respondent  in  the  Police
Station of Lokayukta against  the  appellant  is  without  jurisdiction  and
therefore, the same is liable to be quashed.  He  has  submitted  that  this
important aspect of the matter has not been considered by the learned  judge
of the High Court and he has declined to grant the prayer of  the  appellant
without examining the legal submissions urged before it.  Therefore, he  has
urged that the impugned order is vitiated in law and the same is  liable  to
be set aside by this Court in exercise of its jurisdiction.
On the other hand, Mr. Basava Prabhu S. Patil, the  learned  senior  counsel
on behalf of the respondents has rebutted the  aforesaid  legal  contentions
urged on behalf of the appellant, stating that the Inspector  of  Police  of
the Lokayukta has taken note of the news item published in the Newspaper  on
28.12.2011 in 'Vijaya Karnataka' a Kannada  daily,  which  was  repeated  on
3.1.2012 in 'Bangalore Mirror' and on 05.01.2012  in  The  Times  of  India,
English edition. The complaint against the appellant  has  not  been  lodged
either before the Lokayukta or Upa lokayukta but  the  same  was  registered
suo-moto at the Police Station attached to the Lokayukta and therefore,  the
procedure provided under  the  provisions  of  the  Lokayukta  Act  was  not
required to be followed as  contended  by  the  learned  senior  counsel  on
behalf of the appellant.
The learned  senior  counsel  on  behalf  of  the  respondents  has  further
contended that the registration of the complaint by  the  second  respondent
suo-moto on the basis of the Newspaper publication is permissible in law  as
the same is in accordance with the judgments of this Court in the  cases  of
C. Rangaswamaiah & Ors. v.  Karnataka  Lokayukta  &  Ors.[1]  and  State  Of
Karnataka v. Kempaiah[2].  These judgments have  been  adverted  to  by  the
Division Bench of Karnataka High Court in the case of  State  of  Karnataka,
by Chief Secretary and Ors. v.  Basavaraj   Guddappa   Maliger[3].   In  the
Kempaiah's case referred to supra, this Court affirmed the judgment  of  the
Division Bench of the High Court on the ground that the Upalokayukta had  no
power to investigate into a crime allegedly committed by the public  servant
under the provisions of the P.C.Act, however, this Court did not  quash  the
FIR. Further, this Court made it clear that the FIR registered  against  the
petitioner is not quashed and that it is open  to  the  State  to  have  the
offence  investigated  in  accordance  with  law.   Further,   in   the   C.
Rangaswamaiah's  case,  this  Court  has  held  that  the  police  wing   on
deputation to the Lokayukta, if authorised under Section 17 of  the  P.C.Act
and Section 2(d) of the CrPC, is legally entitled to  register  a  case  and
investigate the matter and file a charge sheet in a competent court  of  law
under the provisions of the P.C.Act and the CrPC.  The  relevant  paragraphs
of C. Rangaswamaiah (supra), read thus:
"21. The next question is whether when the State  Government  had  sent  the
police officers on deputation to the Lokayukta, it was permissible  for  the
Government to entrust them with additional duties under  the  Prevention  of
Corruption Act, 1988?

22. The learned Single Judge as well as  the  Division  Bench  are  one,  as
already stated, in accepting that  the  police  officers  of  the  State  on
deputation continue to remain as public  servants  in  the  service  of  the
State Government, as long as they are not absorbed in  the  Lokayukta.  This
legal position is absolutely unassailable because  the  State  of  Karnataka
has merely lent the services of these officers  to  the  Lokayukta  and  the
officers continue to be employees of the State. In spite of  the  deputation
of these officers  with  the  Lokayukta,  the  relationship  of  master  and
servant between the State of Karnataka and these  officers  does  not  stand
terminated (State of Punjab v. Inder Singh).

23. There is no dispute that though these officers are on  deputation,  they
are otherwise of the requisite rank as contemplated by  Section  17  of  the
Prevention of Corruption Act, 1988 and that  other  formalities  under  that
Act are  satisfied  for  entrustment  of  duties  under  the  Prevention  of
Corruption Act, 1988. Question is  whether  these  police  officers  of  the
State can be invested with powers of investigation under Section 17  of  the
Prevention of Corruption Act, 1988 by the State under its  statutory  powers
traceable to the same section?"


Further, it has been  contended  by  the  learned  senior  counsel  for  the
respondents that the second respondent has registered the case on the  basis
of the abovementioned report published in the Newspaper referred  to  supra,
after satisfying  himself  with  the  fact  that  the  material  information
published in the aforesaid newspapers  are  cognisable  offences  punishable
under Section 420 and 120B of the IPC, for which he can suo-moto register  a
complaint in the Police Station attached to the Lokayukta.  He  has  further
made the categorical submission that the case is neither registered  against
the appellant on the complaints submitted to the Lokayukta or  Upalokayukta,
in the prescribed form by  the  second  respondent  nor  the  due  procedure
contemplated under Section 9(2) & (3) of the Act  has  been  followed  after
holding preliminary enquiry. Thus, he  has  made  it  very  clear  that  the
initiation of the  proceedings  against  the  appellant  is  not  under  the
provisions of the Lokayukta Act but the same has  been  done  in  accordance
with the provisions of the CrPC and the second respondent  who  is  attached
to the Police Station of Lokayukta can register the FIR and investigate  the
case independently against the appellant as held by this Court in the  cases
referred  to  supra.  Therefore,  the  learned  senior   counsel   for   the
respondents  has  fairly  submitted  that  if  the  appellant  has  got  any
grievance  or  apprehension  for  registering  and  investigating  the  case
against him  by  the  second  respondent,  then  this  Court  may  pass  the
appropriate order to transfer the case to any police agency  in  the  state.
He has placed reliance upon the cases referred  to  supra  and  has  further
made it clear that  transferring  of  the  case  registered  by  the  second
respondent to any other police agency in the State of  Karnataka  shall  not
be henceforth construed  or  understood  as  an  act  beyond  the  scope  of
authority of the  Lokayukta  Police  to  register  case/cases  against  such
persons and investigate the offences under the provisions  of  the  CrPC  or
under the P.C.Act.
We have heard both the learned senior counsel for the  parties  and  perused
the reports published in the Newspapers on the dates mentioned  above  which
were taken into consideration suo-moto by the second respondent, wherein  he
has registered the  FIR  after  being  satisfied  with  the  material  facts
published in the Newspapers  that  there  is  a  cognisable  offence  to  be
investigated by the police against the appellant. The same cannot  be  found
fault with either by the High Court or by this Court  for  the  reason  that
the second respondent,  who  is  on  deputation  to  the  Lokayukta,  is  an
Inspector of Police attached to the State of Karnataka.  Therefore,  he  has
got every power under Section 2(d) of the CrPC, to  act  suo-moto  and  take
cognisance of the offence/offences alleged to have  been  committed  by  the
appellant  on  the  basis  of  the  reports  published  against  him,  which
according to him warranted  registration  of  an  FIR  and  investigate  the
matter against him in accordance with law.
The learned senior counsel on behalf of the  respondents  has  rightly  made
the categorical submission that there is no need  for  the  registration  of
the FIR under Section 9 of the Lokayukta Act, in relation to the matters  to
be investigated under Section 8 of the  Lokayukta  Act.  Therefore,  in  the
light of the above contentions urged on behalf of the parties  and  in  view
of the law laid down by this Court under the Lokayukta Act  and  keeping  in
mind the apprehension expressed by the learned senior counsel on  behalf  of
the appellant with regard to the investigation that may be  carried  out  by
the Lokayukta Police, we are of the considered view that the  learned  Judge
of the High Court has rightly declined to exercise  his  inherent  power  to
quash the proceedings, which does not call  for  our  interference  in  this
appeal.
Having regard to the facts and circumstances of the case, it would  be  just
and proper for this Court to see that justice is meted out and the  case  is
fairly investigated by the Corps of Detectives (COD) of the State. The  said
investigation shall be entrusted to an officer of  the  rank  equivalent  to
the Superintendent of Police in the COD.

For the foregoing reasons and  the  decisions  of  this  Court  referred  to
supra, we direct the second respondent  to  transmit  the  FIR  to  the  COD
Bangalore for further investigation in the matter.  The COD  represented  by
the Director General of Police must entrust the same to the officer  of  the
rank of Superintendent of Police for conducting impartial investigation  and
proceed with the matter in accordance with law.

We make it amply clear that the direction is given to second  respondent  to
transfer the case registered against the appellant to COD, keeping  in  view
the facts and circumstances of this particular case only and  it  shall  not
be construed as precedent for any future case(s)  before  the  Lokayukta  or
the courts. In view of the judgments of this Court  referred  to  supra,  we
hold that the second respondent has  the  right  to  register  a  cognizable
offence against any person under the provisions of the  IPC,  CrPC  and  the
P.C. Act. The same shall be legal and valid.


The appeal is  dismissed.  The  order  dated  05.01.2015  granting  stay  of
further proceedings shall stand vacated.



    ..................................................................J.
                              [V. GOPALA GOWDA]





..................................................................J.
                              [C. NAGAPPAN]
New Delhi,
April 9, 2015

ITEM NO.1B-For JUDGMENT     COURT NO.11               SECTION IIB

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Criminal Appeal  No(s)........./2015 arising from SLP(Crl.) NO. 108/2015

YUNUS ZIA                                          Appellant(s)

                                VERSUS

STATE OF KARNATAKA & ANR.                          Respondent(s)

Date : 09/04/2015 This appeal was called on for hearing today.

CORAM :
         HON'BLE MR. JUSTICE V. GOPALA GOWDA
         HON'BLE MR. JUSTICE C. NAGAPPAN

For Appellant(s)
                     Mr. Vikash Singh,Adv.

For Respondent(s)
                     Mr. V. N. Raghupathy,Adv.


            Hon'ble Mr. Justice V.Gopala Gowda pronounced  the  judgment  of
the Bench comprising His Lordship and Hon'ble Mr. Justice C.Nagappan.
            Leave granted.
            The appeal is dismissed in terms of  the  signed  Non-Reportable
Judgment.

    (VINOD KR.JHA)                              (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
            (Signed Non-Reportable Judgment is placed on the file)

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[1]   [2] (1998)  6  SCC  66
[3]   [4] (1998)  6  SCC  103
[5]   [6]   ILR 2003 KARNATAKA 3589

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