Sri A Alam Pasha vs Sri Murugesh R Nirani
2021 Latest Caselaw 1763 Kant

                         -1-




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 17th DAY OF MARCH 2021

                       BEFORE

      THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA

      CRIMINAL REVISION PETITION NO.1120 OF 2016

BETWEEN

SRI A ALAM PASHA
S/O LATE P AMEER SAHEB
AGED ABOUT 52 YEARS
NO.674, 9TH A MAIN
1ST CROSS, 1ST STAGE
INDIRANAGAR
BENGALURU-560038
                                        ...PETITIONER

(BY SRI: A P MOHANTY, ADVOCATE)

AND

1.     SRI MURUGESH R NIRANI
       AGED ABOUT 51 YEARS
       FORMER MINISTER FOR INDUSTRIES
       GOVERNMENT OF KARNATAKA
       44/13, FAIR FIELD LAYOUT
       RACE COURSE ROAD
       BENGALURU-560001

2.     SRI H R NIRANI
       AGED MAJOR
       R/A FLAT NO.003
       R/2, SIDDA ENCLAVE
       FIRST FLOOR, LEFT WING
       NEHRU NAGAR
                        -2-




     SESHADRIPURAM MAIN ROAD
     BENGALURU-560020

3.   SRI SHARANABASAPPA V KARIYANNAVAR
     AGED MAJOR
     S/O SRI VEERABHADRAPPA RUDRAPPA
     KARIYANNAVAR
     NO.4, LAKSHMI LAYOUT
     GOKUL ROAD, BASAVESHWAR
     HUBLI-580030

4.   SRI RUDRAPPA VEERAPPA VATNAL
     S/O SRI VEERAPPA MALLAPPA VATNAL
     AGED MAJOR
     NO.MIG 237, CHURCH ROAD
     NAVANAGAR
     HUBLI-580025

5.   SRI BEGUR RUDRAMOORTHY PURNACHANDRA
     S/O SRI BEGUR RUDRAMOORTHY
     AGED MAJOR
     NO.109(NEW), OLD NO.30
     11TH MAIN, NEAR 15TH CROSS
     MALLESWARAM
     BENGALURU-560003

6.   SMT SHANTHA SUDHIR BELOOR
     D/O SRI VEERABHADRAIAH
     AGED:MAJOR
     CHANNAVEERAPPA
     NO.102, 26, R V APARTMENTS
     BHIM JYOTHINAGAR
     BENGALURU-560079

7.   SRI S PALAKSHA
     S/O LATE V SAVANDAPPA
     AGED:MAJOR
     NO.64, 3RD MAIN,
                          -3-




       KENGERI, SATELLITE TOWN
       BENGALURU-560060

8.     SRI MOHAN M HEREMATH
       S/O SRI MIRUGAPPA HIREMATH
       AGED MAJOR
       NO.200, 2ND MAIN, 2ND CROSS
       KUMARESHWARANAGAR
       P B ROAD
       DHARWAD-580001

9.     SRI M ROSAY
       S/O SRI P P MOHAN
       AGED:MAJOR
       NO.150, 4TH CROSS, 4TH MAIN
       2ND PHASE, NEAR MARUTHI MEDICAL
       MANJUNATHANAGAR
       BENGALURU-560010

10 .   SRI B S YADDIYURAPPA
       AGED ABOUT 73 YEARS
       FORMER CHIEF MINISTER OF KARNATAKA
       R/A NO.381, 6TH CROSS
       80 FEET ROAD, RMV II STAGE
       DOLLARS COLONY
       BANGALORE-560094

11 .   SRI KATTA SUBRAMANYAM
       AGED ABOUT 56 YEARS
       FORMER MINISTER FOR LARGE AND
       MEDIUM SCALE INDUSTRIES
       GOVERNMENT OF KARNATAKA
       NO.9, 6TH CROSS, RMV EXTENSION
       SADASHIVANAGAR
       BENGALURU-560080

12 .   DEPUTY SUPERINTENDENT OF POLICE
                           -4-




       LOKAYUKTA
       BANGALORE URBAN
       BANGALORE

13 .   THE STATE OF KARNATAKA
       REP BY THE STATE PUBLIC PROSECUTOR,
       HIGH COURT OF KARNATAKA,
       BENGALURU 560001

       (Respondent No.13 Amended v/o dated 8.02.2021)

                                       ...RESPONDENTS

(BY SRI: AJAY KADKOL, ADVOCATE FOR R1 AND R2;
          R-3 SERVED AND UNREPRESENTED;
    SRI: S.B. PAVIN, ADVOCATE FOR R4 TO R9;
    SRI: ARUNA Y.M., ADVOCATE FOR R10;
    SRI: KIRAN S. JAVALI, ADVOCATE A/W
          CHANDRASHEKARA.K., ADVOCATE FOR R11;
    SRI: B.S. PRASAD, SPL.PP FOR R12;
    SRI: V.M. SHEELVANT, SPP-I A/W
         THEJESH.P., HCGP FOR R13)

      THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 CR.P.C. PRAYING TO SET
ASIDE THE ORDER DATED 25.07.2016 PASSED IN PCR
NO.23/2011 ON THE FILE OF XXIII ADDL. CITY CIVIL AND
S.J., AND SPL. JUDGE, BENGALURU URBAN DISTRICT,
BENGALURU VIDE ANNEXURE-A AND ORDER FURTHER
INVESTIGATION UNDER SECTION 156(3) OF CR.P.C. AS
AGAINST RESPONDENT NO.1 TO 9 AND FURTHER TO TAKE
COGNIZANCE     AND    ISSUE    SUMMONS      AGAINST
RESPONDENT NO.10 AND 11 FOR THE OFFENCES
MENTIONED IN FINAL REPORT AT ANNEXURE-D FILED BY
THE RESPONDENT NO.12.

     THIS CRIMINAL REVISION PETITION COMING ON
FOR ADMISSION, THIS DAY, THE COURT MADE THE
FOLLOWING:
                               -5-




                           ORDER

This revision petition is directed against the order

dated 25.07.2016 passed by learned XXIII Addl. City Civil

and Sessions Judge and Special Judge, Bengaluru(CCH-24)

in PCR No.23/2011 dismissing the complaint filed by the

petitioner/complainant.

2. The petitioner herein presented a private

complaint under section 200 Cr.P.C. requesting the court

to take cognizance of the offences punishable under

sections 7, 10, 13 and 15 of the Prevention of Corruption

Act, 1988(for short 'P.C. Act') against nine named accused

persons who are arrayed as respondent Nos.1 to 9 in the

instant petition. The Special Judge referred the complaint

for investigation by the Superintendent of Police,

Lokayukta, Bangalore Urban under section 156(3) of

Cr.P.C. After investigation, final report was submitted

before the Special Judge on 21.05.2012.

3. In the final report, respondent Nos.1 to 9(original

accused Nos.1 to 9) were dropped as no evidence could be

collected against them and the charge sheet was filed

against respondent No.10 and 11 herein namely

Sri. B.S. Yeddiyurappa and Sri. Katta Subramanya Naidu,

arraigning them as accused No.1 and 2.

4. In the charge sheet, it was alleged that during the

course of investigation, the Investigating Officer received

records from different departments and ascertained that

respondent No.10 viz., Sri. B.S. Yeddiyurappa, the

Ex-Chief Minister, Karnataka illegally de-notified

Sy.Nos.124, 125 and 126 totally measuring 20 acres of

Hoovinayakanahalli village, Jala Hobli, Bengaluru North

Taluk which was notified under section 28(1) of KIAD Act,

1966, despite the observations of the Officers i.e., Under

Secretary, Joint Secretary and Additional Secretary of

Commerce and Industries Secretariat, Government of

Karnataka that the said land cannot be denotified and

directed to pay betterment charges and on his own

decision with an intention to help the owners released the

above land from acquisition proceedings by forfeiting

service fee of Rs.2,64,00,000/- and development fee of

Rs.6.00 crores by misusing his official position and thereby

caused loss to the State Exchequer and thus committed

offences punishable under section 13(1) (d) sub-clause (1)

and (3) r/w 13(2) of P.C. Act. In the said charge sheet,

Sri. Katta Subramanya Naidu, the then Minister for Large

and Medium Scale Industries (respondent No.11 herein)

was also charge sheeted on the allegations that

Sy.No.13/2 measuring 2 acres 8 guntas belonging to

Sri. K.M. Ranganna and Sy.No.13/3 measuring 1 acre

38 guntas belonging to Nagappa situated at Makanakuppe

village, Nelamangala Taluk were notified for acquisition

under section 28(1) of Karnataka Industrial Area

Development Act(for short 'KIAD' Act). The final

notification under section 28(4) of Land Acquisition Act was

issued on 27.02.2007. The land was acquired in the year

2007 and was granted to M/s.Sudarshan Extrusions

Company. During the investigation, on verification of the

documents obtained from Forest, Ecology and Environment

Department, Government of Karnataka, Secretariat,

Bengaluru, it was ascertained that when respondent No.11

was serving as Large and Medium Scale Industries Minister

in 2007, the owners submitted an application to denotify

the above lands and in this regard, when the officers of the

Department wanted to take an opinion from the Industries

Secretariat, before intimating the decision to CEO and EM,

the then Minister Sri. Katta Subramanya Naidu took

records to his office and without passing award to collect

service and betterment fee from the land owners, released

the disputed land from the land acquisition proceedings.

5. The notice of this Final report having been served

on the petitioner viz., the complainant, he filed a memo

requesting the Court to consider his objection statement

and to order for a detailed probe as accused persons were

seriously involved alongwith former Chief Minister

Sri. B.S.Yeddiyurappa and Sri. Katta Subramanya Naidu in

receiving illegal gratification by denotifying the lands and

sought for proper investigation against accused Nos.1 to 9.

6. Learned Special Judge upon hearing the counsel

for the complainant, by the impugned order dated

25.07.2016 dismissed the complaint. The reasoning of the

learned Special Judge find a place in para 13 of the

impugned order which is extracted here below:-

13. "I need to note that on careful perusal of the record, the complainant has not submitted affidavit along with the complaint. The complainant has not chosen to file the affidavit even after filing the objections to the charge sheet submitted by the Investigating Officer. To seek further investigation from the Court supporting affidavit along with the complaint is mandatory. Where Section 156(3) of Cr.P.C. the complaint has to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. In an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. Such kind of applications are being filed in a routine manner

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without taking any responsibility whatsoever only to harass certain persons. It is necessary to state here that the complainant has not filed the affidavit supporting his complaint. It is true that this Court has got power by invoking section 156(3) of Cr.P.C to refer the matter to the Investigating Officer for further investigation. But the complainant has not placed any materials before the Court to show that the accused have committed the alleged offences and the Investigating Officer has not properly investigated the matter. Further, there are no allegations in the complaint against the charge sheeted accused Sri. B.S. Yeddyurappa and Katta Subramanya Naidu. When there is no allegations made against the charge sheeted accused Nos. 1 and 2 in the complaint and non arriving of the said charge sheeted accused Nos. 1 and 2 in the complaint, this Court is unable to take cognizance of the offence against the charge sheeted accused for the alleged offences. Viewed from any angle, absolutely there is no evidence placed before the Court by the complainant to refer the matter for further investigation and to take cognizance of the alleged offences against the charge sheeted

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accused. Accordingly, I answer point No.1 in the Negative."

7. The contention of learned counsel for the

petitioner is that the impugned order is illegal and

perverse on the face of it; the learned Special Judge had

no jurisdiction to dismiss the complaint while considering

the 'B' summary report submitted by the Investigating

Agency. Placing reliance on the decision in the case of

HARDEEP SINGH v. STATE OF PUNJAB AND OTHERS,

(2014) 3 SCC 92, learned counsel pointed out that "after

committal, cognizance of an offence can be taken against a

person not named as an accused but against whom

materials are available from the papers filed by the police

after completion of investigation. Such cognizance can be

taken under Section 193 Cr.P.C. and the Sessions Judge

need not wait till 'evidence' under Section 319 Cr.P.C.

becomes available for summoning an additional accused."

8. On the same point, learned counsel placed

reliance on the decision in the case of DHARAMPAL AND

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OTHERS v. STATE OF HARYANA AND ANOTHER, (2014) 3

SCC 306, wherein it is held as under:-

" That the Sessions Judge has jurisdiction to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record and hence, even without recording evidence, upon committal under section 209, the Sessions Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein."

9. Highlighting these principles, learned counsel

emphasized that a complaint could be dismissed only

under section 203 Cr.P.C. provided the learned Magistrate

or the Special Court decides to proceed under section 200

Cr.P.C., whereas, in the instant case, the learned Special

Judge himself having directed investigation and having

secured an investigation report, he had no other option

other than to take cognizance of the offences against the

offenders even if they were not named in the FIR.

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10. Insofar as the maintainability of the petition

under Section 397 Cr.P.C., he has relied on the decision in

MANJU SURANA v. SUNIL ARORA AND OTHERS, (2018) 5

SCC 557 and submitted that an order of dismissal of the

complaint has the effect of discharging the accused against

whom charge sheet has been laid by the police thus finally

terminating the proceedings and therefore the impugned

order is amenable for challenge under Section 397 Cr.P.C.

11. Insofar as the allegations leveled against

accused Nos.1 to 9 are concerned, learned counsel at the

outset submitted that he does not insist prosecution of

accused Nos.1 to 9 and that he is pursuing the complaint

only against the order of the learned Special Judge insofar

as declining to take cognizance of the offences alleged

against accused Nos.10 and 11.

12. Questioning the locus-standi of the petitioner to

maintain the petition against respondent Nos.10 and 11,

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Sri. Kiran S. Javali, learned counsel representing Sri.

Chandrashekara. K appearing for respondent No.11 at the

outset submitted that accused Nos.10 and 11 were not

named in the PCR or in the FIR registered by police; the

investigation was undertaken only against accused Nos.1

to 9; there were no allegations against accused Nos.10

and 11, under the said circumstances, the petitioner has

no locus-standi to challenge the order passed by the

Special Court when the investigating agency themselves

have not chosen to prefer any appeal or revision against

the order passed by the Special Court and thus sought to

dismiss the complaint.

13. Sri. B.S. Prasad, learned Special Public

Prosecutor appearing for respondent No.12 however

submitted that the impugned order cannot be sustained

under law or on fact; the learned Special Judge while

considering the final report cannot dismiss the complaint;

the order passed by the Special Judge has the effect of

discharging the accused; the impugned order does not

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reflect any application of mind by the Court; the Special

Court has rejected the complaint on the ground that the

affidavit as prescribed by the Hon'ble Supreme Court in

PRIYANKA SRIVASTAVA AND ANOTHER v. STATE OF

UTTAR PRADESH AND OTHERS reported in (2015) 6

SCC 287, was not filed. Placing reliance on the coordinate

Bench decision of this Court in Crl.P.No.3868/2020 dated

01.12.2020, learned counsel submitted that the procedure

prescribed by the Hon'ble Supreme Court in Priyanka

Srivastava's case is not applicable to a complaint filed as

regards corrupt activities and therefore, the learned

Special Judge could not have dismissed the complaint for

want of affidavit especially when the alleged complaint was

filed much earlier to the decision in Priyanka Srivastava's

case.

14. Sri. S.B. Pavin, learned counsel for respondent

Nos.4 to 9 would submit that respondent Nos.4 to 9 were

mere Directors of the companies. There were no

allegations against them constituting the ingredients of

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any of the offences. Under the said circumstances, the

investigating agency having failed to gather any evidence

in proof of the involvement of respondents Nos.4 to 9, the

Special Court has rightly rejected the complaint. Under

section 9(2) of the Karnataka Lokayukta Act, 1984, the

complainant is required to file an affidavit in respect of the

accusations made by him. No such affidavit having been

filed, the Special Court was well within its power to reject

the complaint.

15. The learned counsels appearing for other

respondents have not addressed any arguments inspite of

affording sufficient opportunity to put forth their

submissions. But the learned SPP-I argued in support of

the impugned order and questioned the locus standi of the

petitioner to maintain the petition against respondent

Nos.10 and 11.

16. Having heard the learned counsel for the

petitioner, learned counsel for respondent Nos.4 to 9,

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learned counsel for respondent No.11, learned Special

Public Prosecutor for respondent No.12 and learned SPP-I

for respondent No.13 and on perusal of the impugned

order, I am of the clear view that the impugned order is

indefensible and cannot be sustained under law or on the

facts of this case for the following reasons:

Firstly, the impugned order has been passed by the

learned Special Judge while considering the 'B' Summary

report submitted by the Investigating Agency insofar as

accused Nos.1 to 9 are concerned. The procedure to be

followed by the Magistrate or the Court in accepting or

rejecting the 'B' summary report is concerned are laid

down by the Hon'ble Apex Court in KAMALAPATI TRIVEDI

V. STATE OF WEST BENGAL', (1980) SCC (2) 91, which

are followed by this Court IN 'DR. RAVI KUMAR v. MRS.

K.M.C. VASANTHA AND ANOTHER', ILR 2018 KAR 1725, as

under:-

"5. xxxxxxxxxxxxxxxx It is well recognized principle of law that, once the police submit 'B' Summary Report and protest petition is filed to the same, irrespective of contents of the protest petition,

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the court has to examine the contents of 'B' Summary Report so as to ascertain whether the police have done investigation in a proper manner or not and if the court is of the opinion that the investigation has not been conducted properly, the court has got some options to be followed, which are,-

i) "The court after going through the contents of the investigating papers, filed u/s 173 of Cr.P.C., is of the opinion that the investigation has not been done properly, the court has no jurisdiction to direct the Police to file the charge sheet however, the Court may direct the Police for re or further investigation and submit a report, which power is inherent under section 156(3) of Cr.P.C, but before taking cognizance such exercise has to be done. This my view is supported by the decisions of the Hon'ble Apex Court in a decision reported in AIR 1968 S.C. 117 between Abhinandan Jha and Dinesh Mishra (para 15) and also Full Bench decision of Apex Court reported in (1980) SCC 91 between Kamalapati Trivedi and State of West Bengal.

ii) If the court is of the opinion that the material available in the 'B' Summary Report makes out a cognizable case against the accused and the same is sufficient to take cognizance, and to issue process, then the court has to record its opinion under Sec.204 of Cr.P.C., and the Court has got power to take cognizance on the contents of 'B' Summary Report and to proceed against the accused, by issuance of process.

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iii) If the court is of the opinion that the 'B' Summary Report submitted by the Police has to be rejected, then by expressing its judicious opinion, after applying its mind to the contents of 'B' report, the court has to reject the 'B' Summary Report.

iv) After rejection of the 'B' Summary Report, the court has to look into the private complaint or Protest Petition as the case may be, and contents therein to ascertain whether the allegations made in the Private complaint or in the Protest Petition constitute any cognizable offence, and then it can take cognizance of those offences and thereafter, provide opportunity to the complainant to give Sworn Statement and also record the statements of the witnesses if any on the side of the complainant as per the mandate of Sec.200 Cr.P.C."

17. In a recent decision in the case of VISHNU

KUMAR TIWARI v. STATE OF UTTAR PRADESH THROUGH

SECRETARY, HOME CIVIL SECRETARIAT, LUCKNOW AND

ANOTHER, (2019) 8 SCC 27, the Hon'ble Supreme Court

has reiterated that mere fact that the magistrate had

earlier ordered an investigation under Section 156 (3) and

received a report under Section 173 will not have the

effect of total effacement of the complaint and therefore

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the Magistrate will not be barred from proceeding under

Sections 200, 203 and 204. It is held in this decision that

1) a Magistrate who on receipt of a complaint, orders an

investigation under Section 156(3) and receives a police

report under Section 173(1), may, thereafter, do one of

three things: (a) he may decide that there is no sufficient

ground for proceeding further and drop action; (b) he may

take cognizance of the offence under Section 190 (1)(b) on

the basis of the police report and issue process; this he

may do without being bound in any manner by the

conclusion arrived at by the police in their report; (c) he

may take cognizance of the offence under Section

190(1)(a) on the basis of the original complaint and

proceed to examine upon oath the complainant and his

witnesses under Section 200. If he adopts the third

alternative, he may hold or direct an inquiry under Section

202 if he thinks fit. Thereafter he may dismiss the

complaint or issue process, as the case may be."

18. A perusal of the impugned order on the face of it

reveals that the learned Special Judge has not considered

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the final report filed by respondent No.13 insofar accused

Nos.1 to 9 are concerned and no order has been passed

either rejecting or accepting the report insofar as accused

Nos.1 to 9 are concerned. Under the said circumstances,

even though the learned counsel for the petitioner has

conceded that he does not intend to proceed with the

complaint lodged by him against accused Nos.1 to 9 are

concerned, yet, in view of the settled position of law,

investigation in the case having been undertaken on the

direction of the Special Court, it was the duty of the Court

either to accept or reject the 'B' summary report by

considering the material collected by the investigating

agency. As the learned Special Judge has failed to consider

the 'B' summary report and has not passed any orders

either rejecting or accepting the report filed by the

respondent No.13 insofar as respondent Nos.1 to 9

(original accused Nos.1 to 9), the impugned order is liable

to be set aside only on that score.

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19. Now coming to the charge sheet laid by the

police against respondent Nos.10 and 11 is concerned,

no-doubt, it is true that respondent Nos.10 and 11 were

not named in the FIR and no order was passed by the

court under section 156(3) Cr.P.C. to conduct any

investigation into the allegations levelled against

respondent Nos.10 and 11. Nonetheless, once the charge

sheet is filed, the Magistrate or the Court has no other

option than to take cognizance of the offence alleged in the

charge sheet and proceed in accordance with law. In the

instant case, on going through the impugned order, I find

that the Special Court was oblivious of the fact that it was

dealing with the allegations relating to the violation of the

provisions of P.C. Act that was enacted with the avowed

object of eradicating corruption in public life. The P.C. Act

encompasses within its fold not only the public servants but also

those who abet and conspire with them in respect of the offences

enumerated therein. Though by subsequent amendment to

the P.C.Act much greater protection has been provided to the

public servants by introducing section 17A of PC Act and

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allied provisions; but the law as existed required the

Special Court to effectuate the object and purpose of the

P.C. Act and apparently, for this reason, unlike other

criminal courts, the Special Judge manning the Special

court constituted under section 3 of the P.C. Act has been

invested with the original jurisdiction and the power of

Magistrate as well as the Sessions Judge and even the

power of the District Judge while exercising the power

under The Criminal Law (Amendment) Ordinance, 1944.

20. As per Section 5(1) of the PC Act, the Special

Judge could take cognizance of the offences under the Act

without the matter being committed to him. Therefore,

when a charge sheet is filed before the learned Special

Judge alleging commission of cognizable offences under

the provisions of the P.C. Act, he has no discretion to

choose to ignore the cognisable offence staring on the face

of the record and give reprieve to the accused on the

flimsy ground that the allegations of the cognizable

offences are not made in the complaint or in the FIR. It is

trite law that the Sessions Judge assuming original

- 24 -

jurisdiction has power to take cognizance of the offence

based on the material placed before him even if the

offenders were not named in the FIR. This view has been

crystalised into settled principle of law as observed by the

Hon'ble Supreme Court in DHARAMPAL AND OTHERS v.

STATE OF HARYANA AND ANOTHER, (2014) 3 SCC 306,

wherein it is held as under:-

xxxxxxxxxx The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge.

- 25 -

In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh's case (supra) that the Session Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Session Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein."

Further in para 42, the Constitution Bench has held

as under:-

"The Reference to the effect as to whether the decision in Ranjit Singh's case (supra) was correct or not in Kishun Singh's case (supra), is answered by holding that the decision in Kishun Singh's case was the correct decision and the learned Session Judge, acting as a Court of original jurisdiction, could issue summons under Section 193 on the basis of the records transmitted to him as a result of

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the committal order passed by the learned Magistrate."

21. In a later decision in HARDEEP SINGH v. STATE

OF PUNJAB AND OTHERS, (2014) 3 SCC 92, at para 111, it

is held as under:-

"Even the Constitution Bench in Dharam Pal (CB) has held that the Sessions Court can also exercise its original jurisdiction and summon a person as an accused in case his name appears in Column 2 of the chargesheet, once the case had been committed to it. It means that a person whose name does not appear even in the FIR or in the chargesheet or whose name appears in the FIR and not in the main part of the chargesheet but in Column 2 and has not been summoned as an accused in exercise of the powers under Section 193 Cr.P.C. can still be summoned by the court, provided the court is satisfied that the conditions provided in the said statutory provisions stand fulfilled."

22. In the light of this legal position, the reasoning

of the learned Special Judge that there were no allegations

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in the complaint against the charge sheeted accused

Sri. B.S. Yeddiyurappa and Sri. Katta Subramanya Naidu

and therefore, no cognizance could be taken against them

being contrary to the settled principles of law, cannot be

sustained. Likewise, the reasoning of the Special Court

that for want of affidavit filed in support of the allegations,

the original complaint itself has to be dismissed is based

on the misconception of rudiments of law and misreading

the judgment of the Hon'ble Supreme Court in Priyanka

Srivatsava's case. As per the said decision, the affidavit is

required only when the complainant seeks reference of the

complaint to the police under section 156(3) of Cr.P.C. If

the learned Magistrate himself in exercise of powers under

section 190 Cr.P.C. chooses to refer the complaint to the

police for investigation, the requirement of filing an

affidavit does not arise. Moreover, in the instant case, the

reference under Section 156(3) Cr.P.C. having been made

much earlier to the decision in Priyanka Srivatsava's case,

non-filing of the affidavit does not vitiate either the order

of reference or the subsequent charge sheet laid by the

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police. Even otherwise, the question of filing the affidavit

does not arise after submission of the charge sheet. Said

requirement would arise only when the Court was called

upon to take cognizance of the offence or to refer the

complaint for cognizance of the offence. Either way, the

reasoning assigned by the Special Court being perverse

and whimsical cannot be sustained. This Court in a recent

decision in MR. G. JAGADEESHA v. STATE OF KARNATAKA

AND ANOTHER (Crl.P.No.3868/2020 dated 01.12.2020)

has held that the dicta of the Hon'ble Supreme Court in

Priyanka Srivatsava's is not applicable to the complaint as

regards corrupt activities. The impugned order therefore

being wholly perverse, arbitrary and contrary to law and

facts of the case, in my view, cannot be sustained.

Accordingly, the petition is allowed. The impugned

order dated 25.07.2016 passed by learned XXIII Addl. City

Civil and Sessions Judge and Special Judge, Bengaluru

(CCH-24) in PCR No.23/2011 is set-aside.

- 29 -

The matter is remitted to the Special Court to consider

the 'B' summary report filed by the Investigating Agency

afresh in terms of the guidelines issued by the Hon'ble

Supreme Court in Kamalapati Trivedi v. State of West Bengal,

(1980) SCC (2) 91, which is followed by this Court in Dr.Ravi

Kumar v. Mrs. K.M.C. Vasantha and Another, ILR 2018 KAR

1725.

In the light of the discussions above, the Special Court

is directed to take cognizance of the offences made out in the

charge sheet against respondent Nos.10 and 11(named as

accused Nos.1 and 2 in the charge sheet) and proceed in

accordance with law.

At this juncture, learned counsel for petitioner-

complainant submits that the complainant is apprehending

danger to his life. If so, the complainant shall approach the

jurisdictional police who shall provide necessary protection to

the complainant as per law.

Sd/-

JUDGE mn/-