BABU RAO CHINCHANASUR Vs. STATE

JUDGEMENT

(1.) In this petition filed under Section 482 of Cr.P.C., the petitioner has sought for setting aside the order dated 28.11.2012 passed by the Special Court constituted under the Prevention of Corruption Act, 1988 ( for short, 'P.C. Act'), for Bangalore Urban District, Bangalore, in PCR No.44/2012, referring the complaint lodged by Respondent No.2 herein to the Superintendent of Police, Lokayuktha, Bangalore Urban District, under Section 156(3) of Cr.P.C. for investigation and for quashing the private complaint filed by the 2nd respondent in PCR No.44/2012, and all further proceedings taken thereon.

(2.) The 2nd respondent herein presented a private complaint under Section 200 of Cr.P.C. alleging the offence punishable under Section 13(1)(e) r/w. Section 13(2) of the P.C. Act against the petitioner herein and sought for referring the matter for investigation to Lokayuktha Police under Section 156(3) of Cr.P.C., inter alia alleging that the petitioner herein was for the first time elected as a member of Legislative Assembly of Karnataka in 1989, and later in 1994 and 1999 from Chithapur constituency and he was once again elected to the State Legislative Assembly from Gurumitkal constituency in the election held on 30.05.2008 and since then he has been an MLA; that during 1999 to 2004 he was also a Minister of State for Small Savings, Insurance and Muzarai; that the petitioner has amassed huge assets disproportionate to his known sources of income; that he has filed vague and incorrect statement of his Assets and Liabilities before the Lokayuktha while filing statements as required by Rule 7 of the Karnataka Lokayuktha Rules, 1985; that though he acquired several movable and immovable properties after he became the Member of the State Legislative Assembly, has not disclosed them in his statements of Assets and Liabilities filed before the Lokayuktha; that he also filed incorrect and defective statements before the Election Commissioner; that he has acquired several properties benami in the names of his wife and son-in-law by name one Ramesh; that the total value of the assets held by the petitioner herein both in his name and benami in the names of his wife and others, are worth about Rs.14,52,08,217/-, the total expenditure from 1989- 90 upto 2010-11 was Rs.45,70,000/-, whereas the total income declared by him was only Rs.1,56,73,000/- and the liabilities declared by him was to the tune of Rs.49,00,000/- and thus, the disproportionate assets possessed by him is to the tune of Rs.12,92,05,217/-, which in terms of percentage works-out to 628% over and above his known sources. In this view of the matter, the complainant alleged that the petitioner herein has acquired assets and cash which was in no way justified by his declared sources of income and thereby he has committed the offence as defined under Section 13(1)(e) of the P.C. Act. It was further alleged that the petitioner herein has not only amassed the assets disproportionate to the declared sources of income, but also indulged in concealing the true assets and undervalued the assets and that the petitioner herein is possessing the assets to the tune of nearly Rs.50 crores, but the same has been undervalued by him with an intention to conceal the true value of the wealth and thus, he has committed the offence under Section 13(1)(e) punishable Section 13(2) of the P.C. Act. In the complaint, regarding issue of sanction, it was averred that the accused was first time elected in the year 1989, again in 1994 and 1999; that between 1999 and 2004, he was also a Minister in the State Government, but thereafter, he lost the election and ceased to be a public servant, and since the allegations made in the complaint are only with regard to misappropriation of assets during the period when the petitioner herein was a public servant till he lost election in 2004 and while he served as a Minister and since he completed his term as a Minister in 2004, question of sanction does not arise. With these contentions the complainant sought for referring the matter for investigation by Lokayuktha Police under Section 156(3) of Cr.P.C.

(3.) On receipt of the complaint, learned Special Judge, heard the counsel appearing for the complainant and by order dated 28.11.2012 impugned in this petition, referred the complaint to the Superintendent of Police, Lokayuktha, Bangalore Urban District, under Section 156(3) of Cr.P.C. for investigation and report. On the basis of such reference, the 1st respondent registered the case in Crime No.94/2012 for the offence punishable under Section 13(1)(e) r/w. 13(2) of the P.C. Act against the petitioner herein. On coming to know of the same, the petitioner has presented this petition seeking to quash the order passed by the learned Special Judge referring the complaint to Lokayuktha Police for investigation and also to quash the complaint inter alia on the grounds that the private complaint filed by the complainant is not only without jurisdiction inasmuch as there was no provision either in the P.C. Act or in the Karnataka Lokayuktha Act to enable a person to file a private complaint against the public servant and seek initiation of criminal prosecution but also since the Karnataka Lokayuktha Act as well as the P.C. Act being self-contained codes having an independent mechanism for investigation of various offences related to corruption, the complainant has no right to file private complaint; that though the Special Court by the impugned order referred the matter to be investigated by the Superintendent of Police, Lokayuktha, the Police Inspector registered First Information Report and this is contrary to the impugned order, as such, the consequential proceedings thereon, if any, are without jurisdiction; that the registration of the First Information Report by the Police Inspector, Karnataka Lokayuktha is without authority of law and also contrary to Section 17 of the P.C. Act, which mandates that investigation of offences can be done only by the Officers belonging to the cadre of Deputy Superintendent of Police or equivalent rank and that the 2nd proviso to Section 17 mandates that no Police Officer can conduct investigation of offence under Section 13(1)(e), unless there is an order by the Superintendent of Police in that regard and in the absence of an order by the Superintendent of Police, the Police Inspector had no right to register a case and take-up investigation; that the learned Special Judge has failed to notice that mere possession of assets is not an offence and it becomes offence only if the public servant fails to account for the same and since in the instant case the petitioner has been filing his annual statement of assets and liabilities before the Lokayuktha and his wife has also been filing income tax returns, wherein she has accounted all the assets and liabilities held by her, the learned Special Judge has committed error in acting on the mere allegations in the complaint; that the order referring the matter to the Lokayuktha police for investigation is illegal inasmuch as the learned Special Judge has not applied his mind as to whether the allegations made in the complaint makes-out any case, therefore, such an order is liable to be quashed, as held by Division Bench of this Court in Guruduth Prabhu and Others Vs. M.S. Krishna Bhat, 1999 CrLJ 3909; that the learned Special Judge has failed to see that the person referred to as Ramesh in the complaint is not the son-in-law of the petitioner and the said person has no connection whatsoever with this petitioner, as such, the assets held by the said Ramesh cannot be in any way connected to this petitioner; that since the allegation made in the complaint does not disclose the commission of any offence, the same is required to be quashed to prevent the abuse of the process of law; that the private complaint filed without accompanied by an order of sanction for prosecuting the petitioner as required by Section 19 of the P.C. Act, was not maintainable, as such, the learned Special Judge could not have entertained the complaint and referred the same for investigation to the police.