Single judge disposed of a Criminal Revision Petition by admitting the petitioner's prayer to withdraw the underlying private complaint with liberty to file a fresh one after obtaining prosecution sanction under the Prevention of Corruption Act.
Criminal Revision Petition disposed of as withdrawn; liberty granted to file a fresh complaint after obtaining sanction.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REVISION PETITION No.193/2017
BETWEEN:
Vinod B., S/o. late Sri. Ommen Baby, Aged about 52 years, Advocate, Office & Residing at: ‘Beena Villa’ (Upstairs) Kuvempu Road, Shivamogga – 577 201. …Petitioner (By Sri. M.S. Shyam Sundar, Advocate)
AND:
Also at Malerakeri, Shikaripura Town, Shikaripura Taluk, Shivamogga District – 577 201.
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This Criminal Revision Petition is filed under Section 397 r/w 401 Cr.P.C praying to call for the records and set aside the order of the Principal District & Sessions Judge and the Special Court for Lokayukta at Shivamogga dated 29.12.2016 in the Private Complaint PCR No.7/2016 dated 04.03.2014 and direct the court below to proceed according to law.
This Criminal Revision Petition coming on for Admission, this day, the Court through video conference made the following:
O R D E R
Learned counsel for petitioner – Sri. M.S. Shyam
Sundar, has filed a memo. The contents of the memo reads
as under:
“The petitioner respectfully submits as
hereunder:
1. The petitioner is the complainant while the respondents are the accused in the complaint registered as PCR No.7/2016 and which was pending on the file of the Principal District and Sessions Judge and Special Court for Lokayuktha Cases at Shimoga.
2. In the complaint so filed by him, the complainant has sought for action needed against the accused for an offence which is made penal under Section 13(2) of the Prevention of Corruption Act for the violation of the provisions of Section 13(1)(d) and (e) of the said Act, contending inter alia that:
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(i) Some of the accused who own and possess certain extent of lands in certain Survey Numbers and which are situated within the cognizance of the Deputy Commissioner, Shimoga District, for reasons set out in the application filed by them before the Deputy Commissioner, sought for an order in exercise of the jurisdiction vested in him under Section 95(2) of the Karnataka Land Revenue Act, inasmuch as, for an order of diversion of the lands. The Deputy Commissioner, Shimoga District, after examining the issue that was placed before him through an application and after obtaining the requisite clearance from the Department of Industries and Commerce, in exercise of the jurisdiction vested in him under rule 108 of the Karnataka Land Revenue Rules, passed an order granting the request made by the applicants subject to certain terms and conditions that are incorporated in the Order. The applicants before the Deputy Commissioner thus got the benefit needed to set up an Industrial Establishment. However, for more than one reason, the applicants sold the lands to some third party buyers who have also been arrayed as accused in the case.’
(ii) The order passed by the authority concerned which has enured to the benefit of the land owners is obviously on account of the pressure which came to be exerted upon it. The persons who have
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exerted pressure upon the authority concerned in the matter have also been arrayed as accused in the case. However, to the exclusion of the public servant who passed the Order which Order has enured to the benefit of the land owners, the complaint is filed seeking action for an offence which is made penal under Section 13(2) of the Prevention of Corruption Act for the violation of the provisions of Section 13(1)(d) and (e) of the said Act.
3. The issue which came to be noticed by the trial Court with regard to the non-obtaining of the sanction for prosecution in view of the fact that the complainant has sought for action against the accused only for an offence which is made penal under Section 13(2) of the Prevention of Corruption Act came up for consideration, in view of the dismissal of the complaint by the trial Court before this Hon’ble Court in Criminal Revision Petition No.917/2014 and other connected matters as well as in Criminal Revision Petition No.224/2014 and other connected matters.
(a) Having heard the parties to the Petition, this Hon’ble Court while setting-at-naught the order passed by the trial Court in taking cognizance of the offence complained against the accused and issuance of process against the accused for their appearance in the case before the Court, remitted the matter for a
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fresh look from the stage of presentation of the complaint.
4. The trial Court, however, after examining the record of the case, has chosen to dismiss the complaint on the ground that no offence that is made penal under Section 13(2) of the Prevention of Corruption Act for the violation of the provisions of Section 13(1)(d) and (e) of the said Act is committed by the accused. The trial Court also observed that, from the averments made by the complainant in the compliant as well as in the documents filed by the complainant, it is not possible for the Court to take cognizance of the offence complained against the accused in the case in exercise of the jurisdiction vested in it.
5. The acts of omissions and commissions attributed to the accused in the case to the exclusion of certain authorities whose orders have enured to the benefit of the accused, according to the complainant, would tantamount to an offence which is made penal under Section 13(2) of the Prevention of Corruption Act.
6. Without going into the merits of the matter and the findings recorded by the trial Court, prosecution for an offence which is made penal under Section 13(2) of the Prevention of Corruption Act by a public servant warrants sanction under Section 19 of
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the said Act, irrespective of the fact as to whether the public servant is still in service or not. It is so for the reason that the act came to be amended during the year 2018. Since the Court is yet to take the cognizance of the offence at this stage, even if the Order impugned were to be set aside and the matter were to be remitted back to the trial Court, the trial Court would be required to take cognizance of the offence complained in the complaint and thereafter, proceed with the matter further. In the absence of the petitioner having the advantage of an order of sanction by the appropriate authority as contemplated under Section 19 of the Prevention of Corruption Act, it may become difficult for the trial Court to take cognizance of the offence complained and to proceed with the matter further.
7. In this view of the matter, the complainant has been advised not to invite a finding at the hands of this Hon’ble Court on the merits of the matter and to seek for the sanction needed at the hands of the appropriate authority and therefore, to present a fresh complaint before the trial Court for action needed against the accused.
Therefore, the petitioner above named, humbly prays that this Hon’ble Court be pleased to permit him to withdraw the complaint filed by him before the trial Court with liberty to file a fresh complaint after
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obtaining sanction for prosecution at the hands of the appropriate authority as contemplated under Section 19 of the Prevention of Corruption Act and to dispose of the above Criminal Petition by granting such liberty, in the ends of justice.”
Memo is placed on record.
In view of the said memo, Criminal Revision Petition is
disposed of as withdrawn. Liberty is reserved as prayed for.
Sd/JUDGE
SV
2 issues framed by the court
Whether the petitioner can withdraw the complaint with liberty to file a fresh one after obtaining necessary sanction under Section 19 of the Prevention of Corruption Act.
Whether the matter should be disposed of as withdrawn or remanded for fresh consideration regarding sanction.
3 provisions across 2 enactments
Vinod B.
B.S. Yeddyurappa
B.Y. Vijayendra
R.N. Sohan Kumar
A. Vijayan
K.M. Ravindra
John Michael Cunha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
