Karnataka High Court
Chidananda Urs B.G vs The State Of Karnataka on 11 August, 2022
Bench: B.Veerappa, K S Hemalekha
R
INDEX OF ORDER
Sl.
No. Description Page Nos.
Cause title 4-28
I Brief facts of the case 29-80
(a) W.P. No.21468/2016, 29-38
W.P. No.19386/2016 38-43
(b)
W.P. No.23622/2016, 43-51
(c)
W.P. No.16222/2017, 51-56
(d)
W.P. No.16223/2017, 56-59
(e)
W.P. No.16697/2017, 59-61
(f)
W.P. No.16703/2017, 61-63
(g)
W.P. No.16862/2017, 63-65
(h)
W.P. No.28341/2017, 65-66
(i)
W.P. No.108010/2017 66-69
(j)
W.P. No.108689/2017, 69-71
(k)
W.P. No.108690/2017, 71-72
(l)
W.P. No.22851/2018, 72-75
(m)
W.P. No.9147/2019 75-77
(n)
W.P. No.18042/2019 77-80
(o)
2
Objections filed by the respondent 80-88
II
No.1/State of Karnataka in W.P.
No.19386/2016
Objections filed by the 2nd 88-90
III respondent/ACB in WP 16223/17
and WP 16697/17
Statement of legal submissions of 90-110
Karnataka Lokayukta in W.P. No.
IV 19386/2016, W.P. No.23622/2016,
58252-58256/2017, 3109-113/2018,
4319-4328/2018 and 47109/2018
Arguments advanced by Sri Ravi B. 111-113
Naik, learned senior counsel for Sri
V K.B. Monesh Kumar, learned counsel
for the petitioners in W.P.Nos.
19386/2016 and 21468/2016
Arguments advanced by Sri M.S. 113-119
Bhagwat, learned senior counsel for
the petitioners in Writ Petition
VI Nos.9147/2019, 16222/2017,
16223/2017, 16703/2017,
108010/2017, 108689/2017,
108690/2017 and 22851/2018
Arguments advanced by Sri V. 119-130
VII Lakshminarayana, learned senior
counsel/amicus curiae
Arguments advanced by Sri 130-131
Basavaraju .S, learned senior
VIII counsel for Sri Gowtham A.R, learned
counsel for the petitioner/s in Writ
Petition No.23622/2016
Arguments advanced by Sri D.L. 131-133
Jagadish, learned senior counsel a/w
IX
Ms. Rakshitha D.J., learned counsel
for the petitioner in W.P.
No.16862/2017
3
Arguments advanced by Sri C.V. 133-137
Sudhindra, learned counsel for the
X
petitioners in W.P.No.28341/2017
and W.P.No.18042/2019
Arguments advanced by Sri Sharath 138
S. Gowda, learned counsel for the
XI
petitioner/s in Writ Petition
No.16697/2017
Arguments advanced by Sri Ashok 139-152
Haranahalli, learned senior counsel
XII for Karnataka Lokayukta
Arguments advanced by Sri 152-163
Prabhuling K. Navadgi,
XIII
learned Advocate General for the
respondent/State
XIV Points for determination 163-164
XV Consideration 164-280
XVI Recommendations 280-282
XVII Conclusion 282-283
XVIII Result 284-289
***
4
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.19386/2016 (GM-RES)
C/W
WRIT PETITION Nos. 21468/2016, 23622/2016,16222/2017,
16223/2017, 16697/2017, 16703/2017, 16862/2017,
28341/2017, 108010/2017, 108689/2017, 108690/2017,
22851/2018, 9147/2019 AND 18042/2019
IN WP No.19386/2016:
BETWEEN:
CHIDANANDA URS B.G.,
S/O LATE B.C.GOPALARAJ URS,
AGE 47 YEARS,
OCCUPATION: ADVOCATE,
NO.85/86, 4TH CROSS,
BHUVANESHWARINAGAR,
H.A.FARM POST, HEBBAL-DASARAHALLI,
BENGALURU-560024.
...PETITIONER
(BY SRI RAVI B. NAIK, SENIOR COUNSEL FOR
SRI K. B. MONESH KUMAR, ADVOCATE)
5
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS,
VIDHANA SOUDHA,
BENGALURU-560 001.
2. KARNATAKA LOKAYUKTA
REPRESENTED BY ITS REGISTRAR,
MULTISTOREYED BUILDING,
BENGALURU-560 001.
3. ADDITIONAL DIRECTOR GENERAL OF POLICE
KARNATAKA LOKAYUKTA,
M.S.BUILDING,
BENGALURU-560 001.
RESPONDENT NOS. 2 & 3 DELETED VIDE
COURT ORDER DATED 07.04.2016
4. ANTI CORRUPTION BUREAU
REP. BY ADGP
5. STATE OF KARNATAKA
BY ITS UNDERSECRETARY TO GOVERNMENT,
HOME DEPARTMENT (POLICE SERVICES-A)
KARNATAKA GOVERNMENT SECRETARIAT,
VIDHANA SOUDHA,
BENGALURU-560 001.
6. KARNATAKA LOKAYUKTA
M.S. BUILDING,
BENGALURU-560 001.
REPRESENTED BY ITS REGISTRAR,
...RESPONDENTS
(BY SRI V. LAKSHMINARAYANA, SENIOR COUNSEL AS AMICUS
CURIAE,
SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL, A/W
6
SRI V. SREENIDHI, AGA AND
SRI KIRAN KUMAR, HCGP FOR R1 AND R5,
SRI MANMOHAN P.N., ADVOCATE FOR R4;
SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR SRI B.S.
PRASAD, ADVOCATE FOR R6;
VIDE ORDER DATED 7.04.2016 R2 AND R3 ARE DELETED)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTIFICATION DATED 14.03.2016 ISSUED BY THE R-1 IN
No.DAE14 SLU 2016 PRODUCED AT ANNEXURE-D AND THE
NOTIFICATIONS DATED 19.03.2016 ISSUED BY THE R-5
PRODUCED AT ANNEXURES - E, E1, E2 AND E3.
IN WP No.21468/2016 :
BETWEEN:
THE ADVOCATES ASSOCIATION BENGALURU,
HIGH COURT BUILDING,
VIDHANA VEEDHI,
BANGALORE-560001.
REP BY ITS GENERAL SECRETARY,
SRI PUTTEGOWDA.
...PETITIONER
(BY SRI RAVI B. NAIK SENIOR COUNSEL FOR
SRI K.B. MONESH KUMAR, ADVOCATE)
AND:
1. THE CHIEF SECRETARY,
DEPARTMENT OF PERSONNEL
& ADMINISTRATIVE REFORMS
VIDHANA SOUDHA,
BENGALURU-560001.
7
2. THE ANTI CORRUPTION BUREAU
REP. BY ITS ADGP
KHANIJA BHAVANA,
RACE COURSE ROAD
BANGALORE 560001.
3. THE PRINCIPAL SECRETARY
DEPARTMENT OF HOME
VIDHANA SOUDHA
BENGALURU-560001.
4. THE DIRECTOR & INSPECTOR GENERAL OF POLICE
STATE OF KARNATAKA
NRUPATHUNGA ROAD,
BANGALORE-560001.
...RESPONDENTS
(BY SRI V. LAKSHMINARAYANA, SENIOR COUNSEL AS AMICUS
CURIAE,
SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL, A/W
SRI V. SREENIDHI, AGA AND
SRI KIRAN KUMAR, HCGP FOR R1, R3 AND R4,
SRI MANMOHAN P.N., ADVOCATE FOR R2)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTIFICATIONS DATED 19.03.2016 VIDE ANEEXURES-F,G,H,J
ETC.,
IN WP No.23622/2016:
BETWEEN:
SAMAJ PARIVARTHANA SAMUDAYA,
(A SOCIETY REGISTERED UNDER THE
PROVISIONS OF KARNATAKA SOCIETIES
REGISTRATION ACT, 1960),
REPRESENTED BY ITS FOUNDER PRESIDENT,
8
SRI. S.R. HIREMATH,
OFFICE AT "ASHADEEP",
JAYANAGAR CROSS,
SAPTAPUR, DHARWAD-580 001.
...PETITIONER
(BY SRI BASAVARAJ S., SENIOR COUNSEL FOR
SRI GOWTHAM A. R., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY ITS CHIEF SECRETARY,
DEPARTMENT OF PERSONNEL &
ADMINISTRATIVE REFORMS,
VIDHANA SOUDHA,
DR. AMBEDKAR VEEDHI,
BENGALURU-560 001.
2. THE UNDER-SECRETARY TO GOVERNMENT
HOME DEPARTMENT (POLICE SERVICES-A)
VIDHANA SOUDHA,
DR. AMBEDKAR ROAD,
BENGALURU-560 001.
3. THE ANTI CORRUPTION BUREAU
REPRESENTED BY ITS ADGP,
KHANIJA BHAVANA,
RACE COURSE ROAD,
BENGALURU-560 001.
4. THE PRINCIPAL SECRETARY
DEPARTMENT OF HOME,
VIDHANA SOUDHA,
BENGALURU-560 001.
5. THE DIRECTOR & INSPECTOR GENERAL OF POLICE
STATE OF KARNATAKA,
NRUPATHUNGA ROAD,
BENGALURU-560 001.
9
6. THE REGISTRAR
KARNATAKA LOKAYUKTA,
MULTI-STORIED BUILDING,
DR. AMBEDKAR VEEDHI,
BENGALURU-560 001.
...RESPONDENTS
(BY SRI V. LAKSHMINARAYANA, SENIOR COUNSEL AS AMICUS
CURIAE,
SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL, A/W
SRI V. SREENIDHI, AGA AND
SRI KIRAN KUMAR, HCGP FOR R1, R2 AND R4 AND R5;
SRI MANMOHAN P.N., ADVOCATE FOR R3;
SRI ASHOK HARANAHALLI SENIOR COUNSEL A/W
SRI VENKATESH S ARABATTI, SPL.PP FOR R6)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTIFICATION DATED 14.03.2016 ISSUED BY THE R-1 PRODUCED
AT ANNEXURE-A AND THE NOTIFICATIONS DATED 19.03.2016
ISSUED BY THE R-2 PRODUCED AT ANNEXURES - B, C, D AND E.
IN WP No.16222/2017:
BETWEEN:
SRI. K.T. NAGARAJA
S/O K C THAMMAIAH GOWDA
AGED ABOUT 58 YEARS
RESIDING AT NO 455,
III BLOCK, 21ST CROSS,
4TH LINK ROAD, JAYANAGAR
BANGALORE - 560041.
...PETITIONER
(BY SRI M.S. BHAGWAT SENIOR COUNSEL A/W
SRI SATISH K., ADVOCATE)
10
AND:
1. THE STATE OF KARNATAKA,
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
VIDHANA SOUDHA,
BANGALORE - 560001.
2. THE STATE OF KARNATAKA,
DEPARTMENT OF HOME,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
VIKAS SOUDHA,
BANGALORE - 560001.
3. THE ANTI CORRUPTION BUREAU
REPRESENTED BY ADDITIONAL
DIRECTOR GENERAL OF POLICE,
KHANIJA BHAVAN, RACE COURSE ROAD,
BANGALORE - 560001.
...RESPONDENTS
(BY SRI V. LAKSHMINARAYANA, SENIOR COUNSEL AS AMICUS
CURIAE,
SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL, A/W
SRI V. SREENIDHI, AGA AND
SRI KIRAN KUMAR, HCGP FOR R1 AND R2;
SRI MANMOHAN P.N., ADVOCATE FOR R3;
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 14.3.2016 PASSED BY THE R-1 VIDE ANNEXURE-A.
11
IN WP No.16223/2017 :
BETWEEN:
SRI. KALE GOWDA,
S/O LATE BANDI GOWDA,
AGED ABOUT 54 YEARS,
WORKING AS ASSISTANT ENGINEER,
OFFICE OF THE EXECUTIVE ENGINEER,
PUBLIC WORKS DIVISION,
MANDYA 571 401.
...PETITIONER
(BY SRI M.S. BHAGWAT SENIOR COUNSEL A/W
SRI SATISH K., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS
REPRESENTED BY ITS PRINCIPAL SECRETARY,
VIDHAN SOUDHA,
BANGALORE 560 001.
2. ANTI-CORRUPTION BUREAU POLICE STATION
REPRESENTED BY THE DEPUTY
SUPERINTENDENT OF POLICE
MANDYA, MANDYA DISTRICT 571 401.
...RESPONDENTS
(BY SRI V. LAKSHMINARAYANA, SENIOR COUNSEL AS AMICUS
CURIAE,
SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL, A/W
SRI V. SREENIDHI, AGA AND
SRI KIRAN KUMAR, HCGP FOR R1;
SRI MANMOHAN P.N., ADVOCATE FOR R2)
*****
12
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 14.3.2016 PASSED BY THE R-1 VIDE
ANNEXURE-A. IMPUGNED FIRST INFORMATION REPORT DATED
6.2.2017 VIDE CRIME NO.1/2017 REGISTERED BY THE 2ND
RESPONDENT VIDE ANNEXURE-B AND ALL FURTHER PROCEEDINGS
PENDING ON THE FILE OF THE 2ND RESPONDNET.
IN WP No.16697/2017 :
BETWEEN:
SRI SIDHARTH BHUPAL SHINGADI,
S/O LATE BHUPAL SHINGADI,
AGED ABOUT 53 YEARS,
VILLAGE ACCOUNTANT,
HIREKODI VILLAGE, CHIKKODI TALUK,
BELAGAVI DISTRICT,
PIN CODE: 591201.
R/AT NO. 5432,
NEAR HANUMANTH TEMPLE,
INDRA NAGAR, CHIKODI,
BELAGAVI DISTRICT - 591201.
...PETITIONER
(BY SRI SHARATH S. GOWDA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
DEPARTMENT OF PERSONNEL &
ADMINISTRATIVE REFORMS
REPRESENTED BY ITS PRINCIPAL SECRETARY
VIDHANA SOUDHA,
BANGALORE - 560001.
13
2. THE STATE OF KARNATAKA,
DEPARTMENT OF HOME,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
VIKAS SOUDHA, BANGALORE - 560001.
3. THE ANTI CORRUPTION BUREAU
GOVT. OF KARNATAKA,
25, RACE COURSE ROAD,
HIGH GROUNDS,
SAMPANGI RAMA NAGAR,
BENGALURU, KARNATAKA - 560001.
REP BY ADGP.
4. THE INSPECTOR OF POLICE,
THE ANTI CORRUPTION BUREAU,
BELGAVI DISTRICT,
BELGAVI - 591201.
5. SRI SUBHASH BALAPPA BALIKAI,
MAJOR,
RETIRED SOLDER, HEREKODI VILLAGE,
CHIKODI TALUK,
BELGAVI DISTRICT - 592101.
...RESPONDENTS
(BY SRI V. LAKSHMINARAYANA, SENIOR COUNSEL AS AMICUS
CURIAE,
SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL, A/W
SRI V. SREENIDHI, AGA AND
SRI KIRAN KUMAR, HCGP FOR R1 AND R2;
SRI MANMOHAN P.N., ADVOCATE FOR R3 AND R4;
R5 IS SERVED BUT UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED GOVERNMENT ORDER DATED 14.3.2016 PASSED BY
THE R-1 VIDE ANNEXURE-A, THE IMPUGNED COMPLAINT DATED
6.3.2017 GIVEN BY THE R-5 VIDE ANNEXURE-B AND THE
IMPUGNED FIRST INFORMATION REPORT DATED 6.3.2017 VIDE
14
CRIME NO.3/2017 REGISTERED BY THE R-4 VIDE ANNEXURE-C
AND ALL FURTHER PROCEEDINGS PENDING ON THE FILE OF THE
R-3.
IN WP No.16703/2017 :`
BETWEEN:
1. SRI BASAVARAJU M.,
S/O MUNISWAMY,
AGED ABOUT 43 YEARS,
RESIDING AT NO.47
2ND CROSS, 3RD MAIN
UNIVERSITY LAYOUT
RAJARAJESHWARI NAGAR
BANGALROE-560 098.
2. SRI RAMACHANDRAPPA H. C.,
S/O CHOWDAPPA M.,
AGED ABOUT 47 YEARS,
RESIDING AT 2029, 1ST MAIN,
M. C. LAYOUT, VIJAYANAGAR
BANGALORE-506 040.
3. SRI G. H. NAGAHANUMAIAH,
S/O HANUMAIAH,
AGED ABOUT 45 YEARS
WORKING AS SPECIAL LAND ACQUSITION OFFICER
BANGALORE DEVELOPMENT AUTHORITY
WEST PARK ROAD
BANGALORE-560 020
4. SRI E PRAKASH
S/O M EASAPPA
AGED ABOUT 50 YEARS
RESIDING AT NO.14
1ST A MAIN, K H B COLONY
1ST STAGE, BASAWESHWARA NAGAR
BANGALORE-560 079
...PETITIONERS
15
(BY SRI M.S. BHAGWAT SENIOR COUNSEL A/W
SRI SATISH K., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS
REPRESENTED BY ITS PRINCIPAL SECRETARY
VIDHANA SOUDHA,
BANGALORE-560 001
2. THE STATE OF KARNATAKA
DEPARTMENT OF HOME
REPRESENTED BY ITS PRINCIPAL SECRETARY
VIKAS SOUDHA
BANGALORE-560 001
3. THE ANTI CORRUPTION BUREAU,
REPRESENTED BY ADDITIONAL
DIRECTOR GENERAL OF POLICE,
KHANIJA BHAVAN,
RACE COURSE ROAD,
BANGALORE-560 001.
...RESPONDENTS
(BY SRI V. LAKSHMINARAYANA, SENIOR COUNSEL AS AMICUS
CURIAE;
SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL, A/W
SRI V. SREENIDHI, AGA AND
SRI KIRAN KUMAR, HCGP FOR R1 AND R2;
SRI MANMOHAN P.N., ADVOCATE FOR R3)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 14.3.2016 PASSED BY THE R-1 VIDE
ANNEXURE-A.
16
IN WP No.16862/2017
BETWEEN:
SRI DEEPAK KUMAR H. R.,
S/O RAMASWAMY,
AGED ABOUT 33 YEARS,
RESIDING AT NEAR CANARA BANK,
ARALIKATTE ROAD,
UDAYAGIRI, HASSAN-573201.
...PETITIONER
(BY SRI D.L. JAGADEESH, SENIOR COUNSEL A/W
SMT. RAKSHITHA D. J., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF PERSONNEL &
ADMINISTRATIVE REFORMS,
VIDHANA SOUDHA,
BENGALURU-560001
REP. BY ITS PRINCIPAL SECRETARY.
2. THE STATE OF KARNATAKA
DEPARTMENT OF HOME, VIKASA SOUDHA,
BENGALURU-560001
REP. BY ITS PRINCIPAL SECRETARY.
3. THE ANTI CORRUPTION BUREAU
REPRESENTED BY ITS DEPUTY
SUPERINTENDENT OF POLICE
RAVINDRANAGAR,
OPP. TO DANGE HOSPITAL
M.G.ROAD, HASSAN DISTRICT,
HASSAN-573201.
4. SRI K M AHMED
S/O LATE MADAR SAB,
17
AGED 48 YEARS,
ELECTRICAL CONTRACTOR,
AZAD MOHALLA, WARD NO.17,
HASSAN-573201.
...RESPONDENTS
(BY SRI V. LAKSHMINARAYANA, SENIOR COUNSEL AS AMICUS
CURIAE,
SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL, A/W
SRI V. SREENIDHI, AGA AND
SRI KIRAN KUMAR, HCGP FOR R1 AND R2;
SRI MANMOHAN P.N., ADVOCATE FOR R3;
R4 IS SERVED BUT UNREPRESENTED)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
GOVERNMENT ORDER DATED 14.3.2016 BEARING No.CiAaaSuE 14
SeeLoU 2016 PASSED BY THE R-1 VIDE ANENXURE-A AND THE
COMPLAINT DATED 26.8.2016 LODGED BY THE R-4 VIDE
ANNEXURE-B AND THE FIRST INFORMATION REPORT DATED
26.8.2016 IN CRIME NO.1/2016 REGISTERED BY THE R-3 VIDE
ANNEXURE-C.
IN WP No.28341/2017:
BETWEEN:
SRI. CHANNABASAVARADHYA,
S/O LATE S. C. CHANDRAPPA,
AGED ABOUT 55 YEARS,
RESIDING AT SADYOJATHA,
3RD MAIN, ASHOK NAGAR,
TUMKUR - 572102.
...PETITIONER
(BY SRI C. V. SUDHINDRA, ADVOCATE)
18
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY CHIEF SECRETARY,
VIDHANA SOUDHA,
BANGALORE - 560001.
2. THE OFFICE OF THE ANTI CORRUPTION BUREAU,
NO 25, RACE COURSE ROAD,
HIGH GROUNDS, KHANIJA BHAVAN,
BANGALORE - 560001.
...RESPONDENTS
(BY SRI V. LAKSHMINARAYANA, SENIOR COUNSEL AS AMICUS
CURIAE;
SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL, A/W
SRI V. SREENIDHI, AGA AND
SRI KIRAN KUMAR, HCGP FOR R1;
SRI MANMOHAN P.N., ADVOCATE FOR R2)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED NOTIFICATION DATED 14.3.2016 VIDE ANNEXURE-C
ALONG WITH THE SUBSEQUENT SUPPORTING NOTIFICATIONS AT
ANNEXURES-D, E, F, G ALL DATED 19.3.2016 AND NOTIFICATION
DATED 30.3.2016 VIDE ANNEXURE-H AND NOTIFICATION DATED
21.4.2016 AT ANNEXURE-J ISSUED BY R-1.
IN WP No.108010/2017 :
BETWEEN:
SRI. PRAKASH HASARADDI,
S/O LATE KRISHNAPPA,
AGED ABOUT 43 YEARS,
WORKING AS ASSISTANT ENGINEER,
OFFICE OF HUBBALLI DHARWAD
19
URBAN DEVELOPMENT AUTHORITY,
NAVANAGAR,
HUBBALLI-580025.
...PETITIONER
(BY SRI M.S. BHAGWAT SENIOR COUNSEL A/W
SRI SATISH K., ADVOCATE )
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
VIDHANA SOUDHA,
BENGALURU-560001.
2. THE STATE OF KARNATAKA
DEPARTMENT OF HOME,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
VIKAS SOUDHA,
BENGALURU-560001.
3. THE ANTI CORRUPTION BUREAU
REPRESENTED BY ITS
INSPECTOR OF POLICE,
DHARWAD-580001.
4. SRI.ANAND JADAV
S/O DATTARAM JADHAV,
AGED ABOUT 37 YEARS,
R/AT: HOUSE NO.74,
ARAVIND NAGAR, KHB COLONY,
HUBBALLI-580025.
...RESPONDENTS
(BY SRI V. LAKSHMINARAYANA, SENIOR COUNSEL AS AMICUS
CURIAE;
SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL, A/W
20
SRI V. SREENIDHI, AGA AND
SRI KIRAN KUMAR, HCGP FOR R1 & R2;
SRI MANMOHAN P.N., ADVOCATE FOR R3)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED14.03.2016 PASSED BY THE 1ST
RESPONDENT (ANNEXURE-A), IMPUGNED COMPLAINT DATED
13.02.2017 GIVEN BY THE 4TH RESPONDENT (ANNEXURE-B) AND
THE IMPUGNED FIRST INFORMATION REPORT DATED 13.02.2017
VIDE CRIME NO.2/2017 REGISTERED BY THE 3RD RESPONDENT
(ANNEXURE-C) AND ALL FURTHER PROCEEDINGS PENDING ON THE
FILE OF THE 3RD RESPONDENT.
IN WP No.108689/2017 :
BETWEEN:
SRI. BASAVARAJ ALIAS SACHIN,
S/O BASAVARAJA PATIL ALIAS SARWAD,
AGED ABOUT 28 YEARS,
WORKING AS COMPUTER OPERATOR/TECHNICIAN,
KHADED BUILDING,
SHAKARWADI AT POST,
NIPPANI AKOL ROAD, NIPPANI,
CHIKKODI TALUK,
BELGAUM DISTRICT-590001.
...PETITIONER
(BY SRI M.S. BHAGWAT SENIOR COUNSEL A/W
SRI SATISH K., ADVOCATE )
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS,
REPRESENTED BY ITS
21
PRINCIPAL SECRETARY,
VIDHANA SOUDHA,
BENGALURU-560001.
2. THE STATE OF KARNATAKA
DEPARTMENT OF HOME,
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
VIKAS SOUDHA, BENGLAURU-560001.
3. THE ANTI CORRUPTION BUREAU
REPRESENTED BY ITS
INSPECTOR OF POLICE,
BELAGAUM-590001.
4. THE DEPUTY SUPERINTENDENT OF POLICE,
THE ANTI CORRUPTION BUREAU,
BELAGAUM-590001.
...RESPONDENTS
(BY SRI V. LAKSHMINARAYANA, SENIOR COUNSEL AS AMICUS
CURIAE;
SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL, A/W
SRI V. SREENIDHI, AGA AND
SRI KIRAN KUMAR, HCGP FOR R1 & R2;
SRI MANMOHAN P.N., ADVOCATE FOR R3 & R4)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 14.03.2016 PASSED BY THE 1ST
RESPONDENT (ANNEXURE-A), IMPUGNED COMPLAINT DATED
09.06.2017 GIVEN BY THE 4TH RESPONDENT (ANNEXURE-B) AND
THE IMPUGNED FIRST INFORMATION REPORT DATED 09.06.2017
VIDE CRIME NO.10/2017 REGISTERED BY THE 3RD RESPONDENT
(ANNEXURE-C) AND ALL FURTHER PROCEEDINGS PENDING ON THE
FILE OF THE 3RD RESPONDENT, IN SO FAR AS THE PETITIONER IS
CONCERNED.
22
IN WP No.108690/2017 :
BETWEEN:
1. SRI SHANKAR RAMACHANDRA AMBURE,
S/O LATE RAMACHANDRA AMBURE,
AGED ABOUT 52 YEARS,
WORKING AS COMMERCIAL TAX OFFICER
(ENFORCEMENT),
OFFICE OF THE JOINT COMMISSIONER OF
COMMERCIAL TAXES,
BELGAUM-590001.
2. SRI.IRAPPA PARAPPA VANDAL
S/O LATE PARAPPA,
AGED ABOUT 56 YEARS,
WORKING AS COMMERCIAL TAX INSPECTOR
(ENFORCEMENT),
OFFICE OF THE
JOINT COMMISSIONER OF COMMERCIAL TAXES,
BELGAUM-590001.
3. SRI.PRAKASH CHANAPPA KOLKAR
S/O LATE KOLKAR,
AGED ABOUT 59 YEARS,
WORKING AS PEON/GROUP 'D' OFFICER,
OFFICE OF THE
JOINT COMMISSIONER OF COMMERCIAL TAXES,
BELAGAVI-590001.
...PETITIONERS
(BY SRI M.S. BHAGWAT SENIOR COUNSEL A/W
SRI SATISH K., ADVOCATE )
AND:
1. THE STATE OF KARNATAKA,
DEPARTMENT OF PERSONNEL AND
23
ADMINISTRATIVE REFORMS,
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
VIDHANA SOUDHA,
BENGALURU-560001.
2. THE STATE OF KARNATAKA
DEPARTMENT OF HOME,
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
VIKAS SOUDHA, BENGLAURU-560001.
3. THE ANTI CORRUPTION BUREAU
REPRESENTED BY ITS
INSPECTOR OF POLICE,
BELGAUM-590001.
4. THE DEPUTY SUPERINTENDENT OF POLICE,
THE ANTI CORRUPTION BUREAU,
BELGAUM-590001.
...RESPONDENTS
(BY SRI V. LAKSHMINARAYANA, SENIOR COUNSEL AS AMICUS
CURIAE;
SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL, A/W
SRI V. SREENIDHI, AGA AND
SRI KIRAN KUMAR, HCGP FOR R1 & R2;
SRI MANMOHAN P.N., ADVOCATE FOR R3 & R4)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 14.03.2016 PASSED BY THE 1ST
RESPONDENT (ANNEXURE-A), IMPUGNED COMPLAINT DATED
09.06.2017 GIVEN BY THE 4TH RESPONDENT (ANNEXURE-B) AND
THE IMPUGNED FIRST INFORMATION REPORT DATED 09.06.2017
VIDE CRIME NO.10/2017 REGISTERED BY THE 3RD RESPONDENT
(ANNEXURE-C) AND ALL FURTHER PROCEEDINGS PENDING ON THE
FILE OF THE 3RD RESPONDENT, IN SO FAR AS THE PETITIONER IS
CONCERNED.
24
IN WP No.22851/2018 :
BETWEEN:
1. SRI HEMESHA S. M.,
S/O.LATE MALLAPPA S.,
WORKING AS SUB REGISTRAR,
OFFICE OF SUB REGISTRAR,
KADUR, CHIKKAMGALUR-577548.
2. SRI K. S. PRASANNA,
S/O LATE A.N.SRINIVASA MURTHY,
RESIDING BESIDE SRI
VENKATESHWARA SWAMY TEMPLE,
VIDYANAGAR, KADUR-577548.
3. SRI L. S. SATISH,
S/O SHEKARAPPA,
AGED ABOUT 30 YEARS,
PERMANENTLY RESIDING AT
LINGLAPURA VILLAGE,
KADUR TALUK,
CHIKKAMGALUR-577748.
...PETITIONERS
(BY SRI M.S. BHAGWAT SENIOR COUNSEL A/W
SRI SATISH K., ADVOCATE )
AND
1. THE STATE OF KARNATAKA
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
VIDHANA SOUDHA, BANGALORE-560001.
2. THE STATE OF KARNATAKA
DEPARTMENT OF HOME,
25
REPRESENTED BY ITS PRINCIPAL SECRETARY,
VIKAS SOUDHA,
BANGALORE-560001.
3. THE DEPUTY SUPERINTENDENT OF POLICE
THE ANTI CORRUPTION BUREAU,
CHIKKAMANGALUR-577748.
4. SRI CHANDRASHEKARAPPA,
S/O.HANUMANTHAPPA,
AGED ABOUT 45 YEARS,
RESIDING AT BYADAGAHALLI, BIRUR POST,
KADUR TALUK-577116.
...RESPONDENTS
(BY SRI V. LAKSHMINARAYANA, SENIOR COUNSEL AS AMICUS
CURIAE;
SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL, A/W
SRI V. SREENIDHI, AGA AND
SRI KIRAN KUMAR, HCGP FOR R1 & R2;
SRI MANMOHAN P.N., ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 14.03.2016 PASSED BY THE 1ST
RESPONDENT (ANNEXURE-A), IMPUGNED COMPLAINT DATED
12.04.2018 GIVEN BY THE 4TH RESPONDENT (ANNEXURE-B) AND
THE IMPUGNED FIRST INFORMATION REPORT DATED 12.04.2018
VIDE CRIME NO.3/2018 REGISTERED BY THE 3RD RESPONDENT
(ANNEXURE-C) AND ALL FURTHER PROCEEDINGS PENDING ON THE
FILE OF THE 3RD RESPONDENT, IN SO FAR AS THE PETITIONERS
ARE CONCERNED.
IN WP No.9147/2019 :
BETWEEN:
SRI T. N. RANGASWAMY,
S/O T K NANJE GOWDA,
R/A NO.106, KRISHNA, BLOCK-4,
26
NATIONAL GAMES VILLAGE,
KORAMANGALA,
BANGALORE-560034.
...PETITIONER
(BY SRI M.S. BHAGWAT SENIOR COUNSEL A/W
SRI SATISH K., ADVOCATE )
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS
REPRESENTED BY ITS PRINCIPAL SECRETARY
VIDHANA SOUDHA,
BANGALORE-560001.
2. THE STATE OF KARNATAKA
DEPARTMENT OF HOME
REPRESENTED BY ITS PRINCIPAL SECRETARY
VIKAS SOUDHA,
BANGALORE-560001.
3. THE DEPUTY SUPERINTENDENT OF POLICE,
THE ANTI CORRUPTION BUREAU,
BANGALORE URBAN DISTRICT,
BANGALORE-560001.
4. SRI MANJUNATH G. R.,
S/O RAMAKRISHNA B. R.,
MAJOR
R/A NO.1654, 17TH A MAIN
1ST STAGE, 5TH BLOCK
HBR LAYOUT,
BANGALORE-560043
...RESPONDENTS
(BY SRI V. LAKSHMINARAYANA, SENIOR COUNSEL AS AMICUS
CURIAE;
27
SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL, A/W
SRI V. SREENIDHI, AGA AND
SRI KIRAN KUMAR, HCGP FOR R1 & R2;
SRI MANMOHAN P.N., ADVOCATE FOR R3;
R4 IS SERVED BUT UNREPRESENTED)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED GOVERNMENT ORDER DATED 14.03.2016 PASSED BY
THE 1ST RESPONDENT (ANNEXURE-A), IMPUGNED COMPLAINT
DATED 20.11.2018 GIVEN BY THE 4TH RESPONDENT (ANNEXURE-B)
AND THE IMPUGNED FIRST INFORMATION REPORT DATED
20.11.2018 VIDE CRIME NO.30/2018 REGISTERED BY THE 3RD
RESPONDENT (ANNEXURE-C) AND ALL FURTHER PROCEEDINGS
PENDING ON THE FILE OF THE 3RD RESPONDENT, IN SO FAR AS
THE PETITIONER IS CONCERNED.
IN WP No.18042/2019:
BETWEEN:
SRI. K. C. YATHISH KUMAR
S/O LATE K.A. CHINNAPPA,
AGED ABOUT 53 YEARS,
RESIDING AT NO.39, 2ND CROSS,
2ND STAGE, 10TH BLOCK,
NAGARABHAVI,
BANGALORE-72.
...PETITIONER
(BY SRI C. V. SUDHINDRA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY CHIEF SECRETARY,
28
VIDHANA SOUDHA,
BANGALORE-01.
BY SPP, HIGH COURT OF KARNATAKA.
2. THE OFFICE OF THE ANTI CORRUPTION BUREAU
NO.25, RACE COURSE ROAD,
HIGH GROUNDS, KHANIJA BHAVAN,
BANGALORE-560 001.
REP. BY STANDING COUNSEL,
HIGH COURT OF KARNATAKA,
BANGALORE-560001.
...RESPONDENTS
(BY SRI V. LAKSHMINARAYANA, SENIOR COUNSEL AS AMICUS
CURIAE;
SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL, A/W
SRI V. SREENIDHI, AGA AND
SRI KIRAN KUMAR, HCGP FOR R1;
SRI MANMOHAN P.N., ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED GOVERNMENT NOTIFICATION DATED 14.3.2016 VIDE
ANEXURE-C ALONG WITH THE SUBSEQUENT SUPPORTING
NOTIFICATIONS VIDE ANNEXURE-D, E F AND G, ALL DATED
19.3.2016 AND NOTIFICATION DATED 30.03.2016 VIDE
ANNEXURE-H AND NOTIFICATION DATED 21.4.2016 VIDE
ANNEXURE-J.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, B. VEERAPPA J., PASSED THE FOLLOWING:
29
ORDER
W.P Nos.19386/2016, 21468/2016, 22370/2016 and
23622/2016 are filed in public interest and the other writ petitions
are filed by the individual persons in their personal interest. Now,
we shall go through the facts of each of the writ petitions in
seriatim.
I. Brief facts of the case
(a) Writ Petition No.21468/2016 (PIL) by AAB:
2. This writ petition is filed by the Advocates Association,
Bengaluru in public interest for a writ of certiorari to quash the
notifications dated 19.3.2016 vide Annexures - F, G, H and J. By
Annexure-F notification, the Government of Karnataka authorized
all the Deputy Superintendents of Police, office of the Anti
Corruption Bureau ('ACB' for short) for the purpose of investigation
in consonance with the provisions of Section 17 of the Prevention of
Corruption Act ('PC Act' for short). By Annexure-G notification, the
Government of Karnataka has superseded the Notification No.HD
286 PEG 90 dated 6.2.1991 with immediate effect. This would mean
that the power to investigate any offence under the provisions of
the PC Act by the Police Wing of the Karnataka Lokayukta as
prescribed under section 17 of the PC Act, is superseded. By
Annexure-H notification, the Government of Karnataka, in exercise
of the powers under the provisions of Clause (s) of Section 2 of the
Code of Criminal Procedure, declared that the office of the ADGP,
Anti Corruption Bureau, Bengaluru as Police Station having
jurisdiction for the whole of the State of Karnataka. By Annexure-J
notification, the Government of Karnataka, in exercise of the
powers under the provisions of Clause (s) of Section 2 of the Code
of Criminal Procedure, has superseded the Notifications NO.HD 292
PEG 2000, dated 8.5.2002 and HD 324 PEG 2002, dated 5.12.2002
with immediate effect. With this notification, the office of the
ADGP, Lokayukta would no longer have the effect of that of a Police
Station.
3. It is the case of the petitioner/Advocates association
that the Association was registered under the provisions of the
Karnataka Cooperative Societies Act to cater to the needs and
necessities of the Advocates fraternity and office bearers are
elected by the enrolled and practicing Lawyers, who are further
enrolled as members of the Advocates Association. The petitioner
Association has been keenly interested and is actively concerned
with the problems of the common man and has actively voiced in
various forums and platforms. It is further case of the petitioner
that prior to the Karnataka Lokayukta Act,1984 ('KL Act' for
short) came into force, there used to be a Vigilance Commission to
look into the grievances of the people. That in view of more
effectively ensuring better administrative action, check the
omissions and commissions, cater to the common man, the State
Legislature in its endeavour to clean the Augean stables, was
pleased to enact KL Act which was intended to be a pro people Act
as a self contained mechanism through which the grievances of the
people of the State can get effective redressal as also the mischief
of the erstwhile Vigilance Commission could also be cured.
4. The Provisions of Section 3 of the KL Act regulates the
method of appointment of Lokayukta and Upa-Lokayukta. A person
to be appointed as the Lokayukta shall be a person who has held
the office of a Judge of the Supreme Court or that of the Chief
Justice of a High Court or a person who has held the office of a
Judge of a High Court for not less than ten years and a person
to be appointed as a Upa-Lokayukta shall be a person who has
held the office of a Judge of a High Court for not less than five
years. There would be sufficient number of officers to ensure the
effective functioning of the Institution. The State of Karnataka
has framed rules for recruitment of the staff in the Lokayukta called
Karnataka Lokayukta (Cadre, Recruitment and conditions of service
of the officers and employees) Rules, 1988. Rule 3 thereof provides
for the strength and composition of the staff of the Lokayukta and
states that the staff shall be recruited as detailed in the first
schedule of the Rules. Rule 4 of the said Rules prescribes the
method of recruitment. The first schedule divides the staff into
four wings viz.,
i) Administrative and Enquiry Wing
ii) Technical Wing
iii) Police Wing
iv) General Wing
The Administrative and Enquiry Wing consists of District Judge,
Senior Civil Judge, Civil Judge, Public Prosecutor and others to
handle the charge sheeted cases before the jurisdictional Courts;
Technical Wing consists of Chief Engineer, Superintendent Engineer,
Executive Engineer and others; Police Wing consists of Additional
Director General of Police or Inspector General of Police, Deputy
Inspector General of Police and others; General Wing consists of
Audit Officer, Office Superintendent and others. The aspirations
and the grievances of the common man have been met with since
the time Lokayukta has been constituted, which has further
received the Presidential Assent. It is hence holding the corruption
prevention mechanism by an enactment.
5. It is further submitted that by a notification dated
6.2.1991, the Police Inspectors of the Lokayukta were authorized
with the powers of investigation to meet the requirement of Section
17 of the PC Act. That thereafter by notification dated 2.11.1992,
the State Government in exercise of the power conferred by the
first proviso to Section 17 of the PC Act, authorized all the
Inspectors of Police, Office of the Karnataka Lokayukta, for the
purpose of the said proviso, subject to the general and overall
control and supervision by the Lokayukta or Upa-Lokayukta as the
case may be.
6. As there were certain issues which stood raised against
the creation of post of an Additional Director General of Police and
the control of the Police officers working in the Lokayukta
organization, the matter reached the Hon'ble Supreme Court. The
Apex Court in the case of C. Rangaswamaiah and others -vs-
Karnataka Lokayukta and others1 decided on 21.7.1998 laid
down the law that the Police officers on the rolls of the Karnataka
Lokayukta work under the supervision and control of the Lokayukta
and Upa-Lokayukta and there can always be a solution to the
deputation of the police officers to the Lokayukta, keeping in
view the independence of the Lokayukta and its effective
functioning as maters of utmost importance. The Hon'ble
Supreme Court also observed that the legislative intent behind the
enactment is to see that public servants covered by the sweep of
the Act should be answerable for their actions as such to the
AIR 1998 SC 2496
Lokayukta and Upa-Lokayukta, so that these statutory authorities
can work as real Ombudsmen for ensuring that people's faith in the
working of these public servants is not shaken. These statutory
authorities are meant to cater to the need of the public at large
with a view to see that public confidence in the working of the
public bodies remains intact. When such authorities consist of high
judicial dignitaries, it would be obvious that such authorities should
be armed with appropriate powers and sanctions so that their
orders and opinions do not become mere paper directions. The
decisions of Lokayukta and Upa-Lokayukta, therefore, must be
capable of being fully implemented. These authorities should not be
reduced to mere paper tigers but must be armed with proper teeth
and claws so that the efforts put in by them are not wasted and
their reports are not shelved by the disciplinary authorities
concerned.
7. It is also submitted by the petitioner/Advocates
Association that KL Act was amended by Karnataka Act No.35 of
2015 and certain mechanisms to regulate the appointment of
Lokayukta and Upa-Lokayukta and the procedure to remove them is
also amended and the said ordinance has received the assent of the
Governor on 19.8.2015. With this amendment, the intention of the
State Legislature was to make the public feel proud about the
establishment of the organization and further make every action of
the said organization accountable and in genuine public interest.
8. It is further case of the petitioner/Advocates Association
that due to the reasons beyond the reach, there would be pendency
of cases, investigation, delay in securing sanction and related issues
and the learned Single Judge of this Court in Criminal Petition
No.2653/2015 has issued a series of directions to the State to
ensure that the office of Lokayukta is strengthened, capable officers
appointed, officers serving more than the period prescribed weeded
out, the public prosecutors appointed to ensure speedy trial, the
vacancies to be filled up within a time bound period and the
Lokayukta manual be prepared and circulated etc., In fact, the
respondent/State have represented to the learned Single Judge of
this Court by an affidavit that it is their endeavour to ensure that
the office of the Lokayukta is strengthened at all costs and it would
be more accountable and worthy of public trust. The learned Single
Judge of this Court has relied upon several judgments of the Apex
Court covering the field to strengthen the office of Lokayukta to
ensure that the mal administration is stemmed at the bud.
9. When the things stood thus, the State Government
created Anti Corruption Bureau in Karnataka by Government Order
dated 14.3.2016 and issued notifications dated 19.03.2016
authorizing all the Deputy Superintendents of Police in consonance
with Section 17 of the PC Act for the purpose of investigation. The
notification issued by the State Government is to defunct the
Lokayukta and it would virtually defeat the very purpose for which
the office of Lokayukta was constituted and created a parallel body
through an executive notification to achieve the same purpose with
lesser intent. Therefore, the notification constituting the ACB is
unsustainable, suffers from malafides and legal infirmities. When
the Karnataka Lokayukta Act was assented by the President, that
would prevail and the field occupied cannot be eroded and the
respondents cannot trench upon the occupied field. It is nothing,
but transgression by an administrative order to usurp the powers of
Lokayukta. It is further submitted that the impugned executive
order passed by the State Government has indirectly diluted the
powers of the Lokayukta and the ACB cannot function either as a
parallel body or an alternate body or substitute the Lokayukta.
Therefore, the notification constituting the ACB for a function
already being conferred to the Lokayukta, is impermissible in law.
Hence the present writ petition is filed for the relief sought for.
(b) Writ Petition No.19386/2016 (PIL) by Advocate:
10. This writ petition is filed by Mr.Chidananda Urs.,
Practising Advocate, in public interest for a writ of certiorari to
quash the Government Order dated 14.3.2016 issued by the 1st
respondent constituting ACB as per Annexure D so also subsequent
supporting notifications dated 19.3.2016 issued by the 5th
respondent as per Annexure - E, E1 E2 and E3.
11. It is the case of petitioner that he is a practicing
Advocate for more than 15 years and he has co-authored a
commentary titled "Commentaries on Foreign Exchange
Management Act, and Money Laundering Law" which is published by
Lexis Nexis Butterworth. The petitioner is also a Chartered
Accountant and has been a speaker in various forums on Taxation
Laws and also on the law of money laundering. It is further case
of the petitioners that the Respondent Nos.1 to 5 by issuance of
impugned notifications have caused closure of Police Wing attached
to the premier anti corruption institution in the State of Karnataka
viz., The Karnataka Lokayukta. The institution of Karnataka
Lokayukta has been created under the provisions of the KL Act,
which came into existence for improving the standards of public
administration, by looking into complaints against administrative
actions including cases of corruption, favouritism and official
indiscipline in administrative machinery. The Police Wing attached
to the Karnataka Lokayukta was known to be discharging its dual
role, under the KL Act and also under the PC Act. The common
man has immense faith in the institution of Karnataka Lokayukta
and also its Police Wing, that too after handling investigation
relating to mining scam. Further, the common man could have
filed complaint against anybody to set the law in to motion
especially under the PC Act and there was no bureaucratic
impediment or decision required to initiate the proceedings against
a complaint. However, ACB was set up abruptly with an
intention to take control of the pending investigation against the
high functionaries of the State, Bureaucrats etc., It also raises a
very pertinent question as to whether the
process/proceedings/investigation initiated by the Police Wing of
Karnataka Lokayukta need any reconsideration by the ACB and also
how would such proceedings be completely taken over by another
wing when these investigations are being completed by the Police,
which amounts to waste of public money and time and also would
have deleterious consequences.
12. It is further case of the petitioner that the State
Government by the notification dated 6.2.1991 deputed Police
Personnel of various ranks to Karnataka Lokayukta and in addition
to that the notification was also issued under the provisions of
Section 17 of the PC Act empowering the rank of Police Inspector
and above to investigate offences under the PC Act. By such
notification, the Police personnel on deputation to Karnataka
Lokayukta were placed under the Administrative and Supervisory
control of Lokayukta and Upa-Lokayukta, as the case may be. The
very object of the notification referred above was to remove the
bureaucratic control and political interference in the matter relating
to corruption, irrespective of the rank and position of the accused
either in the bureaucractic or political circles. At this stage, it has
to be stated that a person to be appointed as the Lokayukta shall
be a person who has held the office of a Judge of the Supreme
Court or that of the Chief Justice of a High Court or a person who
has held the office of a Judge of a High Court for not less than ten
years and a person to be appointed as a Upa-lokayukta shall be
a person who has held the office of a Judge of a High Court for not
less than five years. Thus, the Police personnel who were deputed
to Karnataka Lokayukta were placed under the direct control and
supervision of a retired judge of the Supreme Court or the Chief
Justice/Judge of the High Court with an intention to command
highest respect and fearless, impartial and fair investigation to be
conducted even though Lokayukta and Upa-Lokayukta are not the
authorities under the provisions of the Code of Criminal Procedure.
The object of both the enactments i.e., KL Act and PC Act was to
achieve common object and goal of corruption free society. Both
the legislations entail civil and criminal consequences and both the
authorities under these Acts are two different sides of the same
coin. With this laudable object, the Police Wing was deputed to
Karnataka Lokayukta for performing a dual role.
13. It is further case of the petitioner that various
reformative measures were taken and implemented by the State
Government in compliance of the orders passed in Criminal Petition
No.2653/2015. In the meanwhile, various complaints were
reported to have been filed against the incumbent Chief Minister of
the State relating to corrupt practices followed in de-notification of
lands in Arkavathi layout. It is learnt through the print media that
disproportionate asset case was also registered against one Mr.
Kapil Mohan, who is a Senior IAS Officer of the Karnataka Cadre. It
is also learnt that there are cases of corruption pending
investigation against certain MLAs and bureaucrats. In order to
protect and scuttle the investigation against political class and
bureaucrats, notification dated 14.3.2016 came to be issued
constituting ACB as authority for investigation under the PC Act,
thereby the very purpose of KL Act was indirectly defeated.
14. It is further case of the petitioner that as per the
provisions of the Code of Criminal Procedure, the complainant
himself should not be an Investigating Officer. As per the
notification, if any complaint filed as against the Chief Minister or
the Minister in the Council of Ministers, the Chief Minister himself
has to oversee the investigation and also permit investigation,
thereby the notification issued would be opposed to the rule of law
and contrary to the dictum of the Hon'ble Supreme Court in the
case of C. Rangaswamaiah2. Thereby, he filed the present writ
petition for the reliefs sought for.
(c) W.P. No.23622/2016 (PIL) by Samaj Parivarthana
Samudaya:
15. This writ petition is filed in public interest by Samaj
Parivarthana Samudaya represented by its founder President - Sri
S.R. Hiremath, for a writ of certiorari to quash the Government
Order dated 14.3.2016 issued by the State Government as per
Annexure-A so also the subsequent supporting notifications dated
19.3.2016 issued by the 2nd respondent as per Annexures - B,C,D
and E.
Supra at Footnote No.1
16. It is the case of the petitioner - 'Samaj Parivarthana
Samudaya' that it is a voluntary organization working in
Karnataka, and other parts of India since 1984. It works in close
cooperation with several other voluntary organisations, networks
and movements, to promote actions with people's power of
participation on a broader scale towards social transformation and
to bring about larger collective impacts on the Governmental
policies, deliberated legislations and programmes, for human
wellbeing. It is also engaged in the activities for betterment of the
society in general and for protection of natural resources, in
particular and working in the said direction for more than four
decades and it has filed several successful Public Interest Litigations
before the Hon'ble Supreme Court and this Court. The
petitioner/organisation has taken strenuous efforts for public cause
by seeking judicial redressal in a number of litigations and several
reported judgments in the name of the organisaton before the
Hon'ble Supreme Court and this Court clearly depict petitioner's
concern for preservation of natural resources and its fight against
corruption at all levels.
17. It is further case of the petitioner that anti corruption
institution that existed prior to 1984 was Vigilance Commission.
During the year 1984, the State Legislature enacted the KL Act
which provided for a self-contained mechanism through which the
grievance of the people of the State can get effective redressal.
The Act also provided to cure some of the defects found in the
Vigilance Commission. The Act created the offices of Lokayukta and
Upa-Lokayukta. Section 3 of the KL Act regulates the method of
appointment of Lokayukta and Upa-Lokayukta. A person to be
appointed as the Lokayukta shall be a person who has held the
office of a Judge of the Supreme Court or that of the Chief Justice
of a High Court or a person who has held the office of a Judge of a
High Court for not less than ten years and a person to be
appointed as a Upa-lokayukta shall be a person who has held the
office of a Judge of a High Court for not less than five years. There
would be sufficient number of officers to ensure the effective
functioning of the Institution. The State of Karnataka has framed
rules for recruitment of the staff in the Lokayukta called Karnataka
Lokayukta (Cadre, Recruitment and conditions of service of the
officers and employees) Rules, 1988. Rule 3 thereof provides for
the strength and composition of the staff of the Lokayukta and
states that the staff shall be recruited as detailed in the first
schedule of the Rules. Rule 4 of the said Rules prescribes the
method of recruitment.
18. It is further case of the petitioner that by a notification
dated 6.2.1991, the Police Inspectors of the Lokayukta were
authorized with the powers of investigation to meet the
requirement of Section 17 of the PC Act. That thereafter by
notification dated 2.11.1992, the State Government in exercise of
the power conferred by the first proviso to Section 17 of the PC Act,
authorized all the Inspectors of Police, Office of the Karnataka
Lokayukta, for the purpose of the said proviso, subject to the
general and overall control and supervision by the Lokayukta or
Upa-Lokayukta as the case may be.
19. It is further case of the petitioner that as there were
certain issues which stood raised against the creation of post of an
Additional Director General of Police and the control of the Police
officers working in the Lokayukta organization, the matter reached
the Hon'ble Supreme Court. The Apex Court in the case of C.
Rangaswamaiah decided on 21.7.1998 laid down the law that the
Police officers on the rolls of the Karnataka Lokayukta work under
the supervision and control of the Lokayukta and Upa-Lokayukta
and there can always be a solution to the deputation of the police
officers to the Lokayukta, keeping in view the independence of the
Lokayukta and its effective functioning as matters of utmost
importance. The Hon'ble Supreme Court also observed that the
legislative intent behind the enactment is to see that public
servants covered by the sweep of the Act should be answerable for
their actions as such to the Lokayukta and Upa-Lokayukta and such
authorities should be armed with appropriate powers and sanctions
so that their orders and opinions do not become mere paper
directions. The decisions of Lokayukta and Upa-Lokayukta,
therefore, must be capable of being fully implemented. These
authorities should not be reduced to mere paper tigers etc.,
20. It is also the case of the petitioner that KL Act was
amended by Karnataka Act No.35 of 2015 and certain mechanisms
to regulate the appointment of Lokayukta and Upa-Lokayukta and
the procedure to remove them is also amended. It is also submitted
that the learned Single Judge of this Court in Criminal Petition
No.2653/2015 has issued a series of directions to the State to
ensure that the office of Lokayukta is strengthened, capable officers
appointed, officers serving more than the period prescribed weeded
out, the public prosecutors appointed to ensure speedy trial, the
vacancies to be filled up within a time bound period and the
Lokayukta manual be prepared and circulated etc., In fact, the
respondent/State have represented to the learned Single Judge of
this Court by an affidavit that it is their endeavour to ensure that
the office of the Lokayukta is strengthened at all costs and it would
be more accountable and worthy of public trust.
21. It is the case of the petitioner that when things stood
thus, contrary to the representations made before the learned
Single Judge, the State Government by Government Order dated
14.3.2016, has created Anti Corruption Bureau in Karnataka, which
would in effect virtually replace the very establishment of the
Lokayukta or make it redundant. Further, the State Government
by the notification dated 19.3.2016 authorized all the Deputy
Superintendents of Police in consonance with Section 17 of the PC
Act for the purpose of investigation. The notification issued by the
State Government is to defunct the Lokayukta and it would virtually
defeat the very purpose for which the office of Lokayukta was
constituted and created a parallel body through the executive
notification to achieve the same purpose with lesser intent.
Therefore, the notification constituting the ACB is unsustainable,
suffers from malafides and legal infirmities.
22. It is further case of the petitioner that the very
constitution of ACB by the Government is to shield corrupt
politicians, Ministers and the officers from the watchful eyes of the
Lokayukta and that Government is weakening the institution of
Lokayukta to protect these persons from prosecution, inter alia
under the PC Act. In fact, the petitioner made representations
from time to time before the Lokayukta against the politicians,
Ministers and the officers of the Government alleging serious
corruption and requesting the Lokayukta to initiate action. The
State is bent upon saving its corrupt Ministers and Officers and
therefore the impugned Government Order and subsequent
supporting notifications are contrary to the very object of the KL
Act.
23. It is also the case of the petitioner that as per the List
II of the 7th Schedule to the Constitution of India, any law of the
nature of the Lokayukta Act and its enactment would be within the
competence of the State Legislature and is insulated from
administrative transgression. When the KL Act was assented by the
President, that would prevail and the field occupied cannot be
eroded and the respondents cannot trench upon the occupied field.
It is nothing but transgression by an administrative order to usurp
the powers of Lokayukta. It is further submitted that the
impugned executive order passed by the State Government has
indirectly diluted the powers of the Lokayukta and the ACB cannot
function either as a parallel body or an alternate body or substitute
the Lokayukta. Therefore, the Government Order constituting the
ACB for a function already being conferred to the Lokayukta, is
impermissible in law.
24. It is further case of the petitioner that the impugned
Government Order constituting ACB empowers the Chief Minister to
veto investigation or the sanction of investigation. This itself
defeats the very purpose of the Anti Corruption Drive and ACB is
not at all an independent body. The Deputy Superintendent of
Police of the ACB being a Class I Officer works under the authority
of the Chief Minister and any independent investigation is only a
mirage. No serving officers would be in a position to conduct an
enquiry against the Chief Minister under whom they would be
working as subordinates. Therefore by the constitution of ACB, the
basic investigation apparatus/mechanism is dysfunctional. The ACB
is constituted virtually to defeat the very purpose of PC Act itself.
Such an intention of the State must not be allowed to be
accomplished. In the circumstances, the present writ petition is
filed for the reliefs sought for.
(d) W.P. No.16222/2017 (filed in personal interest):
25. This writ petition is filed by one Mr.K.T. Nagaraja, who
is working in the cadre of Chief Engineer in Bruhat Bengaluru
Mahanagrapalike ('BBMP' for short) in his personal interest for a
writ of certiorari to quash the Government Order dated 14.3.2016
constituting ACB.
26. It is the case of the petitioner that he has maintained
unblemished service record and working sincerely in BBMP.
However, the 3rd respondent/ACB has suo motu took up the matter
alleging that he has amassed wealth disproportionate to his known
sources of income. On 23.10.2017 the Inspector of Police attached
to the 3rd respondent/ACB has submitted the report which depicts
200% disproportionate assets accumulated by him. Based on the
said report, FIR came to be registered in Crime No.8/2017 under
the provisions of Section 13(1)(e) read with Section 13(2) of the PC
Act, on 27.2.2017. On the very next day, the 3rd respondent/ACB
has conducted raid on the house situated at No.455, III Block, 21st
Cross, 4th Link Road, Jayanagar, Bengaluru. The petitioner
challenged the FIR before this Court in Criminal Petition
No.3044/2017 and this Court by the order dated 11.4.2017 granted
interim order of stay of further proceedings.
27. It is further contended by the petitioner that the
Karnataka Lokayukta Act, 1984 has received the assent of the
President of India. The KL Act created the offices of Lokayukta and
Upa-Lokayukta. Section 3 of the KL Act regulates the method of
appointment of Lokayukta and Upa-Lokayukta. Further, there
would be sufficient number of officers to ensure the effective
functioning of the Institution. The Karnataka Lokayukta
establishment was divided into four wings viz.,
i) Administrative and Enquiry Wing
ii) Technical Wing
iii) Police Wing
iv) General Wing
The public servants covered under the KL Act include -
- Chief Minister
- All other Ministers
- Members of the State Legislature
- All Officers of the State Government
- Chairman, Vice Chairman of local authorities
- Statutory bodies/Corporation established under any law of the
State Legislature.
28. It is further contended that by a notification dated
6.2.1991, the Police Inspectors of the Lokayukta were authorized
with the powers of investigation to meet the requirement of Section
17 of the PC Act. The State of Karnataka has also issued
notifications declaring the offices of Lokayukta as Police Stations
under Section 2(s) of the Code of Criminal Procedure .
29. When things stood thus, the 1st respondent passed an
Executive Order on 14.3.2016 constituting ACB which lacks
statutory force. This order passed under Article 162 of the
Constitution of India is contrary to the law. When the Police Force
has already been established under the KL Act, the State cannot
pass Executive Order constituting the ACB. The constitution of ACB
is one without authority of law and though it purports to create an
independent wing, it is controlled by the Chief Minister. The
petitioner submits that after the constitution of ACB by way of
executive order, the 2nd respondent issued notifications dated
19.3.2016, thereby superseding the earlier notifications dated
6.2.1991, 8.5.2012 and 5.12.2012. Thus, the Lokayukta Police
Force is virtually abolished by the aforesaid notifications. It is
further contended that the constitution ACB itself is without basis
and without statutory backing. The 1st respondent cannot
constitute an independent Police Force when the field is occupied by
the Karnataka Police Act, 1963. The Lokayukta Police was
established under the provisions of the KL Act and therefore backed
by statute. However, the ACB is established by means of an
executive order, which has no legs to stand. The 3rd respondent
cannot perform the duty of Police unless it is established by means
of statute. Therefore, constitution of ACB itself is shaky, opposed
to the provisions of law and therefore cannot perform the duty of
the Police.
30. It is further contended that the Karnataka Lokayukta
was primarily established for making enquiries into administrative
action relatable to matter specified in List II or List III of the
Seventh Schedule to the Constitution of India. However,
alongside the said function, a separate Police Wing was constituted
known as 'Lokayukta Police' which was entrusted with the function
of registering, investigating and enforcement of the provisions of
the PC Act. The said Police Wing was an independent
investigating agency. The said independent investigating agency is
what was envisaged by the Hon'ble Supreme Court in the case of
Prakash Singh -vs- Union of India3. Therefore, the
establishment of ACB is against the letter and spirit of the judgment
of the Hon'ble Supreme Court. Therefore, the petitioner sought for
quashing the Government Order dated 14.3.2016 constituting ACB
by allowing the present writ petition.
(e) Writ Petition No.16223/2017 (filed in personal
interest):
31. This writ petition is filed by one Mr. Kale Gowda, who is
working as Assistant Engineer in the Public Works Department,
Mandya, in his personal interest for a writ of certiorari to quash
the Government Order dated 14.3.2016 constituting ACB so also
the First Information Report dated 6.2.2017 registered against him
in Crime No.1/2017 by the ACB and all further proceedings pending
against him on the file of the ACB.
32. It is the case of the petitioner that the 2nd
respondent/ACB collected source information regarding his alleged
income. The source report collected by the respondent No.2
includes the independent income earned by his brother-in-law and
(2006)8 SCC 1
mother-in-law. The said source report depicts that the he has
disproportionate income of 105.44% including the independent
income of his mother-in-law and brother-in-law. Based on the
said report, the 2nd respondent/ACB registered FIR against him on
6.2.2017. The petitioner further submits that Respondent
No.2/ACB sent a copy of the FIR to the concerned Court and
obtained warrant from the Court to search his house, his office and
the house belonging to his brother-in-law and mother-in-law. The
Court below, without applying mind, issued warrant permitting to
search the house belonging to his brother-in-law and mother-in-
law. The petitioner being a public servant, is governed by
Karnataka Civil Service (conduct) Rules. In fact, he has intimated
his income received from the lawful sources by filing his statement
of assets and liabilities every year. The search mahazar drawn by
the respondent No.2 does not indicate that the petitioner has other
sources of income and therefore, the petitioner has not committed
any offence under the provisions of Section 13(1)(e) of the PC Act.
Without holding proper preliminary enquiry in corruption cases, FIR
is registered, which is bad in law.
33. The petitioner further contended that the 1st respondent
passed an Executive Order on 14.3.2016 constituting ACB which
lacks statutory force. The order passed under Article 162 of the
Constitution of India is contrary to the law. The executive power of
the State with respect to which the Legislature of the State has
powers to make laws is subject to and limited by executive power.
When the Police force has already been established under the
Karnataka Police Act, the State cannot pass Executive Order
constituting ACB. The constitution of ACB is one without authority
of law and though it purports to create an independent wing, it is
controlled by the Hon'ble Chief Minister. The ACB is under the
exclusive control of the political executive. Therefore, there is an
inherent danger of making ACB as a tool for subverting the process
of law. The petitioner submits that after the constitution of ACB by
way of executive order, the 2nd respondent issued notifications
dated 19.3.2016, thereby superseding the earlier notifications
dated 6.2.1991, 8.5.2002 and 5.12.2002 that authorized the
Lokayukta Police with powers to investigate and had declared the
offices of Police Inspectors of Lokayukta as Police Stations. Thus,
the Lokayukta Police Force is abolished by the aforesaid
notifications. It is further contended that the constitution ACB
itself is without basis and without statutory backing. The 1st
respondent cannot constitute an independent Police Force when the
field is occupied by the Karnataka Police Act, 1963. The Lokayukta
Police was established under the provisions of the KL Act and
therefore backed by statute. However, the ACB is established by
means of an executive order, which has no legs to stand. The 2nd
respondent cannot perform the duty of Police unless it is
established by means of statute. Hence, constitution of ACB itself
is shaky, opposed to the provisions of law and therefore cannot
perform the duty of the Police. Therefore, the petitioner sought for
allowing the writ petition by quashing the Government Order dated
14.3.2016 constituting ACB so also the FIR registered against him.
(f) W.P. No.16697/17 (filed in personal interest):
34. This writ petition is filed by one Mr. Sidharth Bhupal
Shingadi in his personal interest praying to quash the
Government Order dated 14.3.2016 constituting ACB so also the
First Information Report dated 6.3.2017 registered against him in
Crime No.3/2017 by the ACB and all further proceedings pending
against him on the file of the ACB.
35. It is the case of the petitioner that he was appointed as
a Village Accountant on 21.3.1986 and posted to Jallapur village,
Raibag Taluk and he worked in the said place for a period of five
years. Thereafter, he worked in several places of Belgavi district.
While he was working as Village Accountant at Hirekodi village, the
5th respondent/complainant has filed false and frivolous complaint
dated 6.3.2017 before the 4th respondent alleging that the
complainant had given an application to change the revenue entry
to his name on 18.6.2016 in the office of the Tahasildar and when
he enquired about the same, he was informed by the officials of the
Tahsildar office that, he will be issued notice through the petitioner
(Village Accountant) and thereafter to submit the relevant
documents. Accordingly, the complainant visited the office of the
petitioner on 9.2.2017 and the petitioner directed him to approach
the Village Assistant by name Mr. Patel. Thereafter, the said Patel
demanded bribe amount of Rs.5,000/- stating that the petitioner
has directed to take money for doing the said work. The 4th
respondent based on the said baseless complaint dated 6.3.2017
registered FIR in Crime No.3/2017 against the petitioner and others
under the provisions of Sections 7, 13(1)(d) r/w 13(2) of the PC
Act. Thereafter, the 4th respondent has drawn an Entrustment
panchanama on 7.3.2017 to make an attempt to trap the petitioner
and the said Village Assistant. Accordingly, the 4th respondent
went to the office of the petitioner for conducting the trap on
7.3.2017 and alleged to have conducted trap panchanama. It is
forthcoming in the Trap panchanama that though the complainant
offered the bribe amount, the petitioner refused to accept the
same. Though the petitioner has not committed any offence
under the provisions of PC Act, he had been falsely implicated by
the 3rd respondent/ACB, which is contrary to the material on
record . Therefore, the petitioner sought to allow the writ petition
by quashing the Government Order dated 14.3.2016 so also the
complaint and FIR registered against him.
(g) W.P. No. 16703/17 (filed in personal interest):
36. The petitioners have filed this writ petition in their
personal interest for a writ of certiorari to quash the Government
Order dated 14.3.2016 issued by the State Government constituting
ACB.
37. It is the case of the petitioners that 1st and 2nd
petitioners are the employees of Bruhuth Bangalore Mahanagar
Palike and the 3rd and 4th Petitioners are government servants
holding civil posts. The Petitioners have maintained unblemished
service records and working sincerely in their respective places.
One Mr. H.S. Manjunath gave a complaint before the 3rd
Respondent against the 1st and 2nd Petitioners on the ground that
they have demanded illegal gratification to do an official favour.
Based on the Complaint by the private person, First Information
Report was registered against the 1st and 2nd Petitioners in Crime
No.22/2016 dated 29/11/2016. Further, one Mr. H.C. Umesh gave
a complaint to the 3rd Respondent alleging that the 3rd Petitioner
has asked for bribe to get the pending work done. Based on the
said complaint, FIR was registered in Crime No.27/2016. The 4th
Petitioner was working as Deputy Director of Land Records,
Bangalore Rural District. While working so, one Sri. Mune Gowda
gave a complaint to the 3rd Respondent complaining that 4th
petitioner has demanded Rs.50,000/- illegal gratification to do an
official favour. Based on the said complaint, FIR came to be
registered in Crime No.8/2016. All the Petitioners have
approached this Court challenging the registration of First
Information Report and all the proceedings including investigation
pending on the file of the 3rd Respondent in Writ Petition No. 2131-
32/2017, Writ Petition No. 2134/2017, Writ Petition No. 6/2017,
Writ Petition No. 3146/2017 and Writ Petition No. 3147/2017. This
Court was initially granted an interim Order of Stay and thereafter,
after hearing the matter at length, this Court vacated the interim
Order. Against the vacation of interim Order, the 3rd and 4th
Petitioners have approached the Hon'ble Supreme Court in Special
Leave Petition (Criminal) No. 2303/2017 and the Hon'ble Supreme
Court stayed the Order of this Court until further Orders. Therefore,
the petitioners sought to allow the writ petition by quashing the
Government Order dated 14.3.2016.
(h) Writ Petition No. 16862/17 (filed in personal interest):
38. This writ petition is filed by one Mr. Deepak Kumar in
his personal interest for a writ of certiorari to quash the
Government Order dated 14.3.2016 constituting ACB so also the
complaint dated 26.8.2016 lodged by the 4th respondent and the
FIR registered in Crime No.01/2016 by the ACB.
39. It is the case of the petitioner that he joined the service
on 29.06.2010 in Karnataka Power Transmission Corporation
Limited, Bengaluru and in the same year, he was transferred to
Wadi, Gulbarga District and thereafter transferred to Hassan. In the
year 2015, the Petitioner transferred to KIADB Section of
CHESCOM, Hassan. He served the CHESCOM in a proper manner
and upto the satisfaction of his superiors as well as consumers.
There are no complaints against him during his tenure for all the
years prior to filing of the writ petition.
40. When things stood thus, the 4th Respondent -
K.M.Ahmed lodged a false and frivolous complaint against the
Petitioner on 26.08.2016 before the 3rd Respondent, alleging that
he applied for sanction of 20 H.P. Power and that the petitioner
demanded for illegal gratification of Rs.20,000/- and the same has
been reduced to Rs.15,000/- towards sanction of power. On the
basis of said false complaint dated 26.8.2016, the 3rd respondent
conducted a trial mahazar and trap mahazar on 26.8.2016.
Consequently, the CHESCOM by its order dated 7.9.2016
suspended the petitioner. Thereafter, the CHESCOM by an order
dated 30.01.2017, revoked the said suspension order. The
petitioner sought to allow the writ petition by quashing the
Government Order dated 14.3.2016 so also the complaint lodged by
the 4th respondent and the FIR registered against him.
(i) W.P. No.28341/2017 (filed in personal interest):
41. The petitioner filed this writ petition in his personal
interest for a writ of certiorari to quash the Government Order
dated 14.3.2016 constituting ACB and the subsequent supporting
Government notifications dated 19.3.2016, 30.3.2016 and
21.4.2016.
42. It is the case of the petitioner that he was working as
an Assistant Executive Engineer, Municipal Corporation, Tumkur
during 2016. On the basis of the complaint lodged by one Syed
Abu Sayeed, the respondent/ACB registered a case against the
petitioner and two others for the offences punishable under the
provisions of the P.C. Act, in Crime No.3/2016. On 13.10.2106, a
forceful trap was laid where Accused No.2 was purportedly caught
with the bribe money of Rs.40,000/- and he was arrested along
with Accused No.3. Since petitioner/Accused No.1 was out of
station, he had a providential escape from human dishonest design.
Therefore, the petitioner sought to allow the writ petition by
quashing the Government Order dated 14.3.2016 and the
subsequent supporting Government notifications dated 19.3.2016,
30.3.2016 and 21.4.2016.
(j) W.P. No.108010/2017 (filed in personal interest)
43. The petitioner has filed this writ petition in his personal
interest for a writ of certiorari to quash the Government Order
dated 14.3.2016 constituting ACB so also the complaint dated
13.2.2017 given by the 4th respondent and the FIR dated 13.2.2017
registered in Crime No.2/2017 by the 3rd respondent/ACB.
44. It is the case of the petitioner that he was initially
appointed as Junior Engineer in the year 1994 in the Department of
Public Works, Ports and Inland Water Transport. Thereafter, he
was promoted as Assistant Engineer Grade - II and he has been
deputed to Hubli-Dharwad Urban Development Authority in the
year 2004 and while working there, the 4th respondent has made an
application on 6.12.2016 in respect of 6 guntas of land situated in
Sy.No.22/4. The petitioner has processed the same and has sent
the file to the Town Planning Member.
45. When things stood thus, the 4th respondent has lodged
a complaint with the 3rd respondent on 13.2.2017 alleging that on
making the application, the spot was inspected on 17.12.2016. It
is further alleged that after about a week, the 4th respondent has
visited the office of the Hubli-Dharwad Urgan Development
Authority and has met the petitioner. It was informed by the
petitioner that the cess challan amount was Rs.27,000/- and that a
further amount of the same value should be given in order to
process the file. It is further alleged that the 4th respondent refused
to pay the said amount and left the place and thereafter, the
petitioner has telephoned and informed the 4th respondent that at
least Rs.15,000/- has to be paid, which is alleged to have been
recorded on the mobile phone of the 4th respondent. It is further
alleged that even after several days, the file was not processed
since the 4th respondent did not pay the said amount demanded.
Therefore, the 4th respondent lodged a complaint before the 3rd
respondent.
46. On receipt of the complaint dated 13.2.2017 by the 3rd
respondent, the 3rd respondent/ACB has registered the FIR against
the petitioner under Section 7 of the PC Act in Crime No.2/2017.
Thereafter, the raiding team along with the panch witnesses have
raided the office of the petitioner. However, the trap laid by the
3rd respondent was unsuccessful and the petitioner was not caught
either in demanding or taking bribe. Inspite of trap being
unsuccessful, the petitioner was taken to custody and subsequently
was released on bail on 15.2.2017.
47. It is further case of the petitioner that being aggrieved,
the petitioner has approached this Court in Criminal Petition
No.100663/2017 seeking to quash the proceedings in Crime
No.2/2017 and the said criminal petition came to be rejected, which
is confirmed by the Hon'ble Supreme Court. It is further
submitted that in the Criminal Petition, the constitution of ACB or
the competence of the Inspector of Police was never called in
question. Therefore, the judgment rendered in criminal petition
would not be a bar to question the constitution of ACB and the
registration of FIR in the present writ petition. Hence, the
petitioner sought to allow the writ petition by quashing the
Government Order dated 14.3.2016 so also the complaint and FIR
registered against him by the ACB
(k) Writ petition No.108689/17 (filed in personal interest):
48. This writ petition is filed by the petitioner in his
personal interest for a writ of certiorari to quash the Government
Order dated 14.3.2016 issued by the State Government constituting
ACB so also the complaint dated 9.6.2017 given by the 4th
respondent and the FIR dated 9.6.2017 registered by the ACB in
Crime No.10/2017.
49. It is the case of the petitioner that he is engaged in his
own employment of doing computer servicing and repair. On
5.6.2017, an anonymous complaint was received by the
Superintendent of Police, ACB, North Zone, Belgaum, alleging that
the officers of the Commercial Tax Department in the outward
check post at Nippani were collecting illegal gratification from lorries
which were transporting various materials/goods. The said
complaint was forwarded to the 4th respondent, who in turn visited
the spot. Thereafter, the 4th respondent has brought to the notice
of the 3rd respondent with regard to the complaint and the 3rd
respondent has registered the FIR for the offences punishable under
Sections 7,8, 13(i)(d) r/w Section 13(2) of the PC Act. The name
of the petitioner is not found in the FIR. Based on the complaint
and the FIR, the 3rd respondent has conducted a raid at the
Commercial Tax Office, Outward Check Post, Nippani on 11.6.2017.
It is submitted that on the same day, the petitioner was called to
the said check post to repair some malfunctioning computers and
when the petitioner was repairing the computers, the 3rd
respondent has conducted the raid. It is further submitted that on
conducting the raid, the petitioner was checked and an amount of
Rs.540/- was found with him, which was his personal money.
Inspite of the trap being unsuccessful, the petitioner was taken to
custody. Subsequently, he has been released on bail on
20.6.2017. The petitioner sought to allow the writ petition by
quashing the Government Order dated 14.3.2016 so also the
complaint and the FIR registered by the ACB.
(l) Writ Petition No.108690/2017 (filed in personal
interest):
50. The petitioners have filed this writ petition in their
personal interest for a writ of certiorari to quash the Government
Order dated 14.3.2016 issued by the State Government constituting
ACB so also the complaint dated 9.6.2017 given by the 4th
respondent and the FIR dated 9.6.2017 registered by the 3rd
respondent/ACB.
51. It is the case of the petitioners that petitioner Nos.1 to
3 are working in the office of the Joint Commissioner of Commercial
Taxes, Belgaum. While they were working in the Commercial Tax
Office, Outward Checkpost, Nippani, on 5.6.2017 an anonymous
complaint was received by the office of the Superintendent of
Police, ACB, North Zone, Belgaum, alleging that the officers in the
outward Check post, Nippani were collecting illegal gratification
from lorries which were transporting various materials/goods. The
said complaint was forwarded to the 4th respondent, who in turn,
has visited the spot. Thereafter, the 4th respondent has sent the
complaint to the 3rd respondent. Based on the said complaint, the
3rd respondent has registered the FIR for the offences punishable
under Sections 7,8, 13(i)(d) r/w Section 13(2) of the PC Act. The
names of the petitioners are not found in the FIR, but a vague
statement was made in the FIR that the case is registered against
the officials working in the said check post. Thereafter, trap
mahazar was conducted and it is found that there is absolutely no
material to show that the petitioners had demanded and accepted
the illegal gratification. Inspite of the trap being unsuccessful, the
petitioners and others were taken to custody and subsequently,
they were released on bail. The petitioners sought to allow the
writ petition by quashing the Government Order dated 14.3.2016 so
also the complaint and FIR registered by the ACB.
(m) Writ Petition No. 22851/2018 (filed in personal
interest)
52. The petitioners have filed this writ petition in their
personal interest for a writ of certiorari to quash the Government
Order dated 14.3.2016 issued by the State Government constituting
ACB so also the complaint dated 12.4.2018 given by the 4th
respondent and the FIR dated 12.4.2018 registered in Crime
No.3/2018 by the 3rd respondent/ACB.
53. It is the case of the petitioners that the 1st petitioner is
a public servant working as Sub-Registrar in the Revenue
Department; 2nd petitioner is a practicing advocate in Kadur taluk;
and the 3rd petitioner is working as Computer Operator in the office
of the Sub-Registrar, Kadur. It is further contended that the
petitioner Nos.2 and 3 are not public servants.
54. It is further case of the petitioners that one Smt.
Seethamma, who is ailing and bed ridden made a request for
private attendance for registration of Will and absolute sale deed on
23.4.2018 to the 1st petitioner. After seeing the relevant records,
the 1st petitioner has personally visited the house of Smt.
Seethamma and registered two documents viz., Will and absolute
sale deed.
55. When things stood thus, the 4th respondent has given
complaint to the 3rd respondent alleging that the 1st and 2nd
petitioners have demanded illegal gratification to do official work by
registering the Will and absolute sale deed. The complaint given
by the 4th respondent shows that he is not connected to the
transaction and documents executed by Smt. Seethamma. Based
on the allegation made in the complaint, the 3rd respondent/ACB
has registered a case against the petitioner Nos.1 and 2 under the
provisions of Sections 7,8 and 13(1)(d) r/w Section 13(2) of the PC
Act in Crime NO.3/2018 on 12.4.2018. In the complaint, it is
alleged that the 2nd petitioner is a stamp vendor, which is factually
incorrect and in fact, he is a practicing advocate.
56. Based on the version of the 4th respondent, an
entrustment mahazar was drawn on 12.4.2018 and the alleged
money was given to the 4th respondent to lay a trap against the
petitioners in presence of two panchas. However, they could not
lay trap on the petitioners. Again, on 23.4.2018 one more
entrustment mahazar was drawn to lay a trap against the
petitioners. Even on the said date, they could not lay a trap
against the petitioners and therefore one more mahazar was drawn
on 23.4.2018. The petitioners further submit that again on the 3rd
occasion, the entrustment mahazar was drawn on 24.4.2018 at
7.45 a.m. and prepared to lay a trap on the petitioners. Even on
that day, the petitioners have not been caught red handed and the
trap was not successful. The trap mahazar shows that he 4th
respondent has given the alleged money to the 3rd petitioner who is
no way in picture till the alleged trap has taken place. The trap
mahazar does not disclose that there was a demand on the part of
the petitioner No.1 and the petitioner No.1 has accepted the
alleged illegal gratification. The purchaser, namely, one Smt. S.
Sendhamarai has appeared before the 1st petitioner and has given
a statement that there is no demand of bribe by the petitioners and
she has not given any instructions to the 4th respondent to give a
complaint against the petitioners. The petitioners sought to allow
the writ petition by quashing the Government Order dated
14.3.2016 so also the complaint and FIR registered against them by
the ACB
(n) Writ Petition No.9147/2019 (filed in personal interest):
57. The petitioner has filed this writ petition in his personal
interest for a writ of certiorari to quash the Government Order
dated 14.3.2016 issued by the State Government constituting ACB
so also the complaint dated 20.11.2018 given by the 4th respondent
and the FIR dated 20.11.2018 registered in Crime No.30/2018 by
the 3rd respondent/ACB.
58. It is the case of the petitioner that he is a Government
servant belonging to Public Works Department and on deputation
working in Bruhath Bengaluru Mahanagara Palike as Assistant
Director of Town Planning, Mahadevapura, during the year 2018.
At that time, one Sri Ajay Jayanthilal has applied for sanction of
building plan for construction of property in Varthu Hobli, Bangalore
East taluk, Bangalore. It is the allegation of the 4th respondent on
behalf of said Sri Ajay Jayanthilal that the petitioner and another
namely Sri Srinivas Gowda, Assistant Engineer are demanding huge
amount of bribe for sanctioning of the building plans. Since the
client of the 4th respondent is not willing to pay the bribe amount,
he has recorded the conversation of the petitioner on 19.11.2018
when he visited the office of the petitioner. Thereafter on
20.11.2018, the 4th respondent has given the complaint to the 3rd
respondent alleging that the petitioner and another have demanded
illegal gratification to the tune of Rs.5,00,000/- for sanction of
building plan. Based on the said complaint, the 3rd
respondent/ACB has registered the case against the petitioner
under Section 7(a) of the PC Act. The entrustment mahazar was
drawn by the 3rd respondent in presence of the panch witness on
20.11.2018. Thereafter, the 3rd respondent has laid a trap against
the petitioner and the trap mahazar was also drawn in presence of
two witnesses. The trap mahazar shows that the petitioner is not
caught red-handed and the alleged money has not been recovered
from the petitioner. It further discloses that the petitioner has
absolutely not made any demand from the 4th respondent.
Therefore, The petitioner sought to allow the writ petition by
quashing the Government Order dated 14.3.2016 so also the
complaint and FIR registered against him by the ACB.
(o) Writ Petition No.18042/2019 (filed in personal
interest):
59. The petitioner has filed this writ petition in his personal
interest for a writ of certiorari to quash the Government Order
dated 14.3.2016 issued by the State Government constituting ACB
so also the subsequent supporting Government notifications dated
19.3.2016, 30.3.2016 and 21.4.2016.
60. It is the case of the petitioner that on 19.5.2017, the
respondent No.2/ACB generated a source report by gathering
information and particulars with regard to his alleged
disproportionate assets. The said source report was transmitted to
the Superintendent of Police on 9.5.2017. On the said date, the
Superintendent of Police directed Deputy Superintendent of Police,
ACB to register a case under Section 13(1)(e) and Section 13(2) of
the PC Act and to conduct further enquiry. The Dy.S.P. had
registered a case on 9.5.2017 in Crime No.20/17 for the offences
punishable under the provisions of Section 13(1)(e) and 13(2) pf
the PC Act. In the source report, it is alleged that the petitioner has
amassed disproportionate wealth in a sum of Rs.1,20,50,000/- at
102.12% of known sources of income. The registration of the case
as aforesaid is entirely illegal and contrary to law. The
respondent/Police have usurped the powers to investigate from the
legally constituted body under the Karnataka Lokayukta Act by
registering a case without there being duly constituted legal body to
work as a Police Station. Therefore sought to allow the writ petition
by granting the reliefs sought for.
61. While reiterating the grounds urged in Writ Petition
No.16222/2017 and connected PILs., with regard to -
- Presidential assent to the Karnataka Lokayukta Act,
1984;
- setting up an institution of Karnataka Lokayukta by
abolishing the Vigilance Commission;
- Government notifications dated 6.2.1991, 8.5.2002
and 5.12.2002 that authorized the Lokayukta Police
with powers to investigate and had declared the
offices of Police Inspectors of Lokayukta as Police
Stations;
- method of appointment of Lokayukta and Upa-
Lokayukta;
- strength and composition of the staff of Lokayukta;
- Division of the staff of Lokayukta into four wings viz.,
Administrative and Enquiry Wing, Technical Wing,
Police Wing and General Wing;
- public servants covered under the KL Act;
- the independent nature of power of the Police Wing of
the Karnataka Lokayukta as held by the Hon'ble
Supreme Court in the case of C. Rangaswamaiah
etc.,
- Issuance of Government Order dated 14.3.2016 and
subsequent supporting notifications dated 19.3.2016
etc.,
the petitioners in all these writ petitions which are filed in personal
interest sought to allow the writ petitions by quashing the
Government Order dated 14.3.2016 so also the subsequent
supporting Government notifications dated 19.3.2016, 30.3.2016
and 21.4.2016.
II. Objections filed by the respondent No.1/State of
Karnataka in W.P. No.19386/2016
62. In the statement of objections filed by the State of
Karnataka, it is stated at the outset that the writ petition is mis-
conceived and is not maintainable, both on facts as well as law and
the same is liable to be dismissed in limine. The petitioner has
made references to several issues which are factually incorrect,
misleading and completely lacking in bonafides. The petitioner is
a practising Lawyer and claims to have filed the present writ
petition in public interest. The petition lacks any kind of public
interest and it is politically motivated and lacks bonafides. The
petitioner also has no locus-standi to prefer this writ petition and on
these preliminary issues itself, the writ petition is liable to be
dismissed in limine.
63. It is further stated in the objections that the Police Wing
attached to the Karnataka Lokayukta, as it stood prior to the
impugned Notifications, in so far as its functions and powers to
investigate the cases arising out of the offences committed under
the provisions of PC Act, were independent of any control by the
office of Lokayukta and was never under the control of the
Karnataka Lokayukta. Investigations 'qua' offences under PC Act
were 'additional duties' entrusted to such Police of the Police Wing,
which by practice was being referred to as 'Lokayukta Police', and in
so far as its jurisdiction to investigate the offences arising out of PC
Act, it carried out its duties as contemplated under the provisions of
Code of Criminal Procedure, Karnataka Police Act and, the PC Act,
independent of any 'control' by the Institution of the Karnataka
Lokayukta. This 'Police Wing' was part of the State Police, in the
same manner as the rest of the Police, in terms of the Karnataka
Police Act, in so far as it exercised its powers to investigate the
offences under the PC Act. Therefore, hue and cry that has been
made out by the petitioner to the effect that by creating the Anti
Corruption Bureau, the State Government has weakened the
institution of Lokayukta' or it has interfered with its functioning in
some manner, is wholly mis-conceived, imaginary and lacking in
bonafides; especially since petitioner claiming to be a practicing
advocate.
64. It is further stated in the objections that as can be
noticed from a reading of Sections 7, 8, 9 and 12 of KL Act,
investigations contemplated are of civil nature ultimately resulting
in reports and recommending appropriate action to be taken
thereon. Under Section 14 of KL Act, when Lokayukta is satisfied
that public servant has committed any 'criminal offence' and should
be prosecuted for such offence, then he may pass an order to that
effect and initiate prosecution of the public servant concerned.
65. It is further stated in the objections that on enactment
of 1984 Act, the Lokayukta Institution was provided with a 'police
wing', a ' technical wing' and, an 'enquiry wing for carrying out
the functions, under the KL Act. The KL Act empowers the
Lokayukta to inquire into complaints against public servants.
However, it does not empower Lokayukta to conduct or supervise
criminal investigations into the offences of corruption by the public
servants and others, punishable under the Indian Penal Code or the
PC Act or under any other statute. The State Government is
empowered to designate an 'office' as a Police Station' under
section 2(s) of the Code of Criminal Procedure.
66. It is further stated in the objections that the PC Act and,
the Indian Penal Code. define the offences of corruption and
prescribe punishments. The procedure for investigation into
offences relating to corruption is laid down in the Code of Criminal
Procedure and the PC Act. Accordingly, the Government, exercising
its powers under Section 17 of the PC Act, had earlier issued a
notification on 06.02.1991 entrusting the Inspectors of Police, on
deputation to the Karnataka Lokayukta "police wing', with the
powers of investigation under the PC Act. In addition, the State
Government exercising its power under section 2(s) of the Criminal
Procedure Code, had declared the offices of the Police wing of
Karnataka Lokayukta as the 'police stations' vide Notifications dated
08.05.2002 and 05.12.2002.
67. It is also stated in the objections that in the year 1992,
the Government by executive order, created a Bureau of
Investigation (BOI) in the Karnataka Lokayukta, which was headed
by a Director General (DG) in the rank of Additional Director
General of Police. The Director General was made an independent
head of the department with a separate Budget Head. However, in
1998, the Government abolished the 'Bureau of Investigation' and
the 'post of Director General' and the power of the Head of the
Department was also withdrawn. The Registrar, Karnataka
Lokayukta, was authorized to operate the finances of the Police
wing. This action of the Government brought the 'police wing' under
the administrative and financial control of the office of Lokayukta.
As a result, Police officers having powers of investigation under the
PC Act, were brought administratively subordinate to the Lokayukta
who had however no statutory powers or duties to administer any
penal statute, like Indian Penal Code, PC Act. The Lokayukta has
powers of a Civil Court in terms of provisions of Lokayukta Act, but
not a Criminal Court.
68. It is further stated in the objections that the issue of
competence of Lokayukta Police Wing to investigate the cases
under the PC Act was challenged before this Court and later before
the Hon'ble Supreme Court. The Apex Court in the case of C.
Rangaswamaiah -vs- Karnataka Lokayukta4, finally decided (in
1998) on this issue, stating that, the police officers of the State on
deputation to Karnataka Lokayukta continued to remain public
servants in the services of the State Government, as long as they
were not absorbed in the Karnataka Lokayukta. The Hon'ble
Supreme Court has held as under:
"This legal position is absolutely unassailable
because the State of Karnataka has merely lent the
Supra at Footnote No.1
services of these officers to the Lokayukta and, the
officers continued to be employees of the State. In spite
of the deputation of the officers with the Lokayukta, the
relationship of master and servant between the State of
Karnataka and these officers does not stand
terminated".
69. It is further contended that the Lokayukta derives
powers and functions under the KL Act, which gives power to
inquire into any action taken by any public servant, in any case
where a complaint involving a grievance or an allegation is made in
respect of such action. For such enquiry, he is given the power of
civil court and the assistance of an 'enquiry wing', a 'technical wing'
and a 'police wing'. After such enquiry/investigation, the Lokayukta
is empowered to ask the competent authority to remedy or redress
the injustice or hardship. He is also empowered to send a detailed
report of investigation to the competent authority, which shall
examine and take action based on the report. The above powers of
the Lokayukta under the Lokayukta Act do not envisage any
authority to Lokayukta, under criminal statues like Indian Penal
Code and PC Act.
70. In view of the above legal position and after considering
all the aspects of the matter, the State Government in the interest
of effective implementation of both the KL Act and the PC Act, took
a conscious decision to formalize the space between the Lokayukta
and the Police wing by separating the powers of the Lokayukta
Police Wing investigating into the criminal offences under Indian
Penal Code and PC Act. Accordingly, the State Government issued
the G.O.No.DPAR 14 SLU 2016, dated 14.03.2016 constituting an
independent Anti Corruption Bureau (ACB) on the lines of the
Central Bureau of Investigation, without disturbing the powers and
functions of the Lokayukta under the Lokayukta Act. In view of the
constitution of the new Anti Corruption Bureau in the State of
Karnataka, the powers of investigation given to the Police of
Lokayukta Police Wing earlier under Section 17 of the PC Act and
the Police Station status given to the offices of the Inspectors of
Police under Section 2(s) of the Code of Criminal Procedure for the
purpose of Prevention of Corruption Act were withdrawn.
Thereby, the respondent/State denied the averments made in the
writ petition and sought to reject the writ petition.
III. Objections filed by the 2nd respondent/ACB in WP
16223/17 and WP 16697/17
71. The 2nd respondent - ACB filed objections denying the
averments made in the writ petitions and contended that in cases
pertaining to the PC Act, 1988, there exists a statutory bar to the
grant of interim relief in the form of stay of proceedings under the
Act. The petitioners in the present writ petitions have not alleged
that due to any stated irregularity or omission on behalf of the 2nd
respondent, any failure of justice has been occasioned. Further, as
per the decision of the Hon'ble Supreme Court in the case of State
of Madhya Pradesh -vs- Virender Kumar Tripathi5, the stage
at which failure of justice may be claimed has not even reached in
the present cases. It is further contended that Writ Petition is not
maintainable and the same is liable to be dismissed in limine for the
following reasons :
a. The Petitioner has deliberately
misled this Court on issues of fact through
(2009) 15 SCC 533
averments in the Writ Petition. It is submitted
that the Petition deserves to be rejected with
costs in limine.
b. The Petitioner has not raised any
substantive grounds challenging the institution
of the proceedings against him by the 2nd
Respondent, but has raised irrelevant and
inconsequential grounds, which should be
rejected.
c. There exists strong prima facie
basis to fully investigate the Petitioner for the
offences under Sections 13(1)(e) read with
S.13(2) of the PC Act, based on the complaint.
72. Thus, the respondent/State has denied the averments
made in the writ petition and sought for dismissal of the writ
petition.
73. Except in the above writ petitions, neither the State nor
any other respondent has filed statement of objections in other writ
petitions including in the PILs filed by the Advocates' Association,
Bengaluru in Writ Petition No.21468/2016 and also in the writ
petition filed by Samaj Parivarthana Samudaya in Writ Petition
No.23622/2016.
IV. Statement of legal submissions of Karnataka Lokayukta
in W.P. No. 19386/2016, W.P. No.23622/2016, 58252-
58256/2017, 3109-3113/2018, 4319-4328/2018
and 47109/2018
74. It is contended that as per the recommendations of the
Administrative Reforms Commission, the Institution of Lokayukta
was set up "for the purpose of improving the standards of public
administration, by looking into complaints against administrative
actions, including cases of corruption, favouritism and official
indiscipline in administrative machinery." The Institution of
Lokayukta was created in 1985 under the KL Act, which received
the assent of President of India on 16.1.1985. As per Statement of
Objects and Reasons of the KL Act, apart from looking into
complaints against administrative actions, including cases of
corruption, the KL Act deals with definition of "corruption", which
includes anything made punishable under the provisions of the PC
Act. The terms, 'Action', 'Allegation', 'Grievance', and
'Maladministration' are defined under Section 2; Section 7 deals
with matters which may be investigated by Lokayukta and an Upa-
Lokayukta; Section 9 deals with provisions relating to complaints
and investigations; Section 12 relates to reports of Lokayukta etc.;
Section 14 deals with initiation of prosecution; Section 15 relates
to staff of Lokayukta; and Sections 17, 17A and 19 deal with insult,
contempt, inquiry, delegation etc.,
75. By a combined reading of the objects of the KL Act and
provisions of the said Act, it is clear that the Act is substantive law
dealing with cases of corruption in public administration. The
Government of Karnataka filled up certain gaps in the KL Act, by
issuing the earlier notifications dated 26.5.1986 under section 2(s)
of the Code of Criminal Procedure and notification dated 26.5.1986
under Section 17 of the PC Act for the purpose of investing the
Police Officers of the Karnataka Lokayukta for investigation of the
offences under PC Act. To the same effect were the subsequent
notifications dated 6.2.1991, 2.11.1992, 8.5.2002 and 5.12.2002;
whereby the Government of Karnataka empowered and entrusted
the powers of investigation in the officers of Lokayukta for the
purpose of PC Act, subject to the overall control and supervision by
the Lokayukta or UpaLokayukta as the case may be. The said
actions of the Government of Karnataka entrusting additional
functions in the police officers attached to the Police Wing to the
Lokayukta has been considered and approved by the Hon'ble Apex
Court in the case of C. Rangaswamaiah -vs- Karnataka
Lokayukta6. In the said case, the Hon'ble Supreme Court
specifically considered the issue of deputation and entrustment of
additional functions by seeking to harmonize Section 17 of the PC
Act and Section 15 of KL Act. As observed by the Apex Court in
paragraphs 23 to 28, consent of the Lokayukta was necessary for
the purpose of entrusting the functions of the investigation under
Section 17 of the PC Act. The relevant portion of paragraph 23 is
as under:
"The lending authority cannot entrust extra duties
without the consent of the borrowing authority".
76. In view of the observations and findings in the case of
Rangaswamaiah7 stated supra, it is submitted that the converse
of the same is true, in as much as, the consent of borrowing
Supra at Footnote No.1
Supra at Footnote No.1
authority should be obtained before withdrawing from the extra
duties. The Hon'ble Supreme Court subsequently described how
the process of consultation should be followed in the case of
Justice Chandrahekaraiah (Retd.) -vs- Janekere C. Krishna
and others8.
77. It is further contended that for the issue of the
notification dated 19.3.2016, purporting to withdraw the powers of
the Lokayukta Police, the Government of Karnataka seeks to derive
its power from Section 21 of General Clauses Act, 1897 for the
purpose of withdrawing the police powers granted to the Lokayukta
Police for issuing earlier notification of 1986, 1991, 1992 and 2002.
The Apex Court has held the consent of the borrowing authority is
necessary for entrustment of extra duties. As soon as such duties
were entrusted, the power under Section 17 of the PC Act is used
up. In view of the fact that similar conditions were not fulfilled and
since the requirement of 'information', or 'approval' or 'consultation'
or 'obtaining consent' has not been complied with, by the
Government of Karnataka for the purpose of withdrawing or
AIR 2013 SC 726.
superseding the earlier notifications, the Government of Karnataka
should have fulfilled the conditions which would have enabled them
to exercise the power. However, since the consent of the
Karnataka Lokayukta was not obtained for the withdrawal of the
police powers by the issue of notification dated 19.3.2016, the
power under Section 21 of the General Clauses Act is not available.
As held by the Hon'ble Supreme Court in the case of State of
Madhya Pradesh -vs- Ajay Singh9, the general power under
Section 21 of the General Clauses Act, to rescind the notification
has to be understood in the light of the subject matter, context and
effect of the relevant provisions of the statute under which
notification is issued and the power not available after an
enforceable right as accurate under notification.
78. It is further contended that the Hon'ble Supreme court
in the case of Justice Chandrahekaraiah (Retd.) -vs- Janekere
C. Krishna and others10 stated supra has referred to the
recommendations of the Administrative Reforms Commission which
has recommended for appointment of the authority which is
AIR 1993 SC 825
AIR 2013 SC 726
independent of the Executive, Legislature and the Judiciary. It is
further observed that the Institution of the Lokayukta should be
demonstrably independent and impartial.
79. The power of initiating prosecution is invested with the
Lokayukta under Section 14 of the KL Act, the formation of another
Bureau, Department, Wing or any other Team, which is not under
the supervision and control of the Lokayukta does not align with
object of the KL Act.
80. Since the 'decision making' Public Servants have been
placed differently, compared to the other Public Servants in terms
of the notification dated 14.3.2016, there is violation of
fundamental right under Articles 14 and 21 of the Constitution of
India. A Police officer who is working under the disciplinary
control of the Home Department and/or Government of Karnataka,
while being an Investigating officer under the Anti Corruption
Bureau cannot be expected to conduct a fair and impartial inquiry
or investigation in relation to high ranking Public Servants. On the
other hand , a police officer working under the supervision of the
Lokayukta is insulated from such influence. Article 21 of the
Constitution of India ensures right to life and liberty to every
person. The said rights are required to be protected and
safeguarded even in respect of 'public servants' falling within the
definition of Section 2(12) of the KL Act, in the larger public
interest. The representatives of the people, who are public servants
and also full time government officials, who are government
servants, are well protected if the investigation powers under the
PC Act, are with the Lokayukta. There is absolutely no chance for
vindictive action at the instance of political opponent against the
representatives of the people. Same is the position in respect of the
bureaucrats who take an independent decision in the larger public
interest. If the investigation agency is not independent then the
right to life and liberty guaranteed to the citizens under Article 21 is
threatened.
81. Under the KL Act and Karnataka Lokayukta Rules -
1985, undisputedly Lokayukta and Upa-Lokayukta are declared to
be persons of high responsibility and of impeccable character and is
given status akin to the Chief Justice of India. Some of the relevant
provisions which ensure independence of Lokayukta as provided
under the provisions of KL Act and Rules are as under:
(1) The Hon'ble Lokayukta is appointed by the Governor
on the advice of the Chief Minister in consultation with
the Chief Justice of High Court of Karnataka, the
Chairman of the Karnataka Legislative Council, the
Speaker of the Karnataka Legislative Assembly, the
Leader of the Opposition in the Karnataka Legislative
Council and the Leader of the Opposition in the
Karnataka Legislative Assembly as contemplated under
the provisions of Section 3(1) and 3(2) of the KL Act..
(ii) The Hon'ble Lokayukta, before entering office, make
and subscribe before the Governor or some other
person appointed in that behalf, an oath of affirmation
as contemplated under the provisions of Section 3(3) of
the KL Act.
(iii) The service conditions, the allowance and pension
of the Hon'ble Lokayukta is the same as that of the
Chief Justice of India and the salary is that of the Chief
Justice of High Court as contemplated under Rule 6 of
the Karnataka Lokayukta Rules.
(iv) Removal of the Hon'ble Lokayukta is by a process
(impeachment) which is similar as that of the Hon'ble
Judges of the High Court and Supreme Court as
contemplated under Section 6 of the KL Act.
(v) To ensure independence and no-conflict, Hon'ble
Lokayukta, shall not be connected with any political
party, cannot hold any office of Trust or profit, must
sever his connections with the conduct and
management of any business, must suspend practice of
any profession as contemplated under Section 4 of the
KL Act; and
(vi) To ensure independence and no-conflict, on ceasing
to hold office, the Hon'ble Lokayukta is ineligible for
further employment to any office of profit under the
Government of Karnataka or any other Authority.
Corporation, Company, Society or University relating to
Government of Karnataka.
82. It is further contended that the Police Officers who are
working for the Karnataka Lokayukta cannot be removed without
the consent of the Lokayukta as contemplated in terms of Section
15 of the KL Act. The object of this provision is to ensure the
independence of the investigating agency. Under Section 15(3) of
the KL Act, the said Police Officers are under the direct supervision
and disciplinary control of the Lokayukta as per Section 15(3) of the
KL Act. So far as the ACB Police are concerned, they are under the
direct control of the Executive and their tenure in it is not ensured.
The interference in their investigation by the Executive is not ruled
out. Therefore, the fear/threat of transfer or vindictive action
against them is also not ruled out. The notification dated
19.3.2016 issued by Government of Karnataka withdrawing status
of the Police Station on Lokayukta is contrary to the provisions of
Section 14 of KL Act read along with other provisions of the said Act
and PC Act as well as Karnataka Police Act, 1963. Even if it is
held that the notification dated 19.3.2016 withdrawing the status
of Police Station as per Section 2(s) of the Code of Criminal
Procedure on the Officers of the Lokayukta, is valid in law, it is
permissible for Lokayukta to independently exercise the power of
getting an FIR registered on the basis of the complaint laid before
Lokayukta etc.,
83. A careful reading of Section 14 of the KL Act makes it
clear that, after investigation into any complaint, in case the
Lokayukta or an UpaLokayukta is satisfied that a public servant has
committed "any" criminal offence and should be prosecuted in a
court of law for such offence, then he may pass an order to that
effect and initiate prosecution of the public servant concerned and if
prior sanction of any authority is required for such prosecution,
then notwithstanding anything contained in any law, such sanction
shall be deemed to have been granted by the appropriate authority
on the date of such order.
84. As already stated supra, the KL Act has been passed on
the basis of the recommendation made by the Administrative
Reforms Commission, recommending for setting up of an Institution
of Lokayukta for the purpose of improving the standard of public
administration, by looking into the complaints against the
administrative actions, including cases of corruption, favouritism
and official indiscipline in administrative measure. It is further
contended that there cannot be two views that by means of
legislation itself it was open to the Legislature to create an
institution conferring powers of investigation both under criminal
and civil jurisdiction. The reading of several provisions of the
Karnataka Lokayukta Act makes it clear that the Lokayukta as an
institution having been created for the purpose of preventing
maladministration in public administration of the State, is
empowered to do so not only by instituting disciplinary action
against erring public servants but also by initiating criminal
proceedings, wherever required on the basis of the materials on
record.
85. The provisions of Sections 7(1) and 7(2A) of the KL
Act confers the power to the Lokayukta to investigate against the
several authorities/public servants of the State and empower the
Lokayukta or an UpaLokayukta to investigate any action taken by or
with the general or specific approval of the public servant, if it is
referred to him by the State Government. Section 8 of the KL Act
specifically bars the matter set out in the said Section from
investigation and section 9 of the KL Act enables any persons to
make a complaint under the said Act to the Lokayukta or Upa-
Lokayukta. No doubt the Act does not define what is meant by
'complaint'. The provisions of section 9(2) of the KL Act stipulates
that the complaint should be made in the prescribed form under
Rule 4 of the Karnataka Lokayukta Rules. Though the definition of
'complaint' is not provided in the Act, the Act defines the terms
'Allegation' under Section 2(2); 'Grievance' under Section 2(8);
'Corruption' under Section 2(5); and 'Mal-administration' under
Section 2(10) of the KL Act. In the absence of specific provision in
the Act, it is well settled that the Courts can look into the definition
of those terms provided in the similar statutes or general definition
provided.
86. It is further contended that under the provisions of
Section 2(e) of the Lokpal and Lokayuktas Act - 2013, the
'complaint' is defined as under:
"Complaint means a complaint, made in such
form as may be prescribed, alleging that a public
servant has committed an offence punishable under
the PC Act, 1988"
87. It is further contended that Section 15 of the KL Act
relates to staff of Lokayukta. The object of Section 15 is to make
the institution of Lokayukta autonomous and its staff to be under
the direct administrative supervision and disciplinary control of the
Lokayukta, with a view to ensure independence and objectivity to
the said staff of the Lokayukta in assisting the
Lokayukta/Upalokayukta in discharge of their duties. It is further
contended that the object of the enactment is to provide
transparency in public administration. In this context, it is relevant
to refer to Section 190 of the Code of Criminal procedure, which
deals with powers of the Magistrate to take cognizance of the
offence by Magistrates. In view of the provisions of Section 190 of
the Code of Criminal Procedure, the Magistrate can take cognizance
on the basis of the (1) complaint. (2) Police Report and (3) suo
motu (Upon his own knowledge). Therefore, cognizance of an
offence can be taken on the basis of the police report or on the
basis of a complaint filed as provided under Section 200 of the Code
of Criminal Procedure and also suo motu, that is on the basis of
information.
88. Section 23 of the KL Act empowers the State
Government by Notification in its official gazette to make rules for
the purpose of carrying into effect the provisions of the said Act. In
exercise of the said power, the State Government has framed the
Karnataka Lokayukta (Cadre, Recruitment and Conditions of Service
of the Officers and Employees) Rules, 1988. Rule 3 of the said
Rules provides for strength and composition of the staff of
Lokayukta. Rule 4 provides for recruitment and minimum
qualification of the Staff. First Schedule of the said Rules provides
for four wings in the Lokayukta. They are:
(1) Administration and Enquiry Wing;
(2) Technical Wing;
(3) Police Wing; and
(4) General Wing.
89. It is further contended that 2nd Schedule of the said
Rules provide for the qualification of the staff to be recruited or
deputed. Technical Wing consists of officials in the cadre of Chief
Engineer/Engineers and Deputy Director of Statistics as well as
Deputy Controller of Accounts. The Police Wing consists of the staff
deputed from Police Department in the cadre of IPS as well as
Karnataka Police Service.
90. The cadre of the officers who are part of the institution
of Lokayukta includes one Police Officer in the rank of Additional
Director General of Police, who is an IPS Officer, one police officer
in the rank of Deputy Inspector General of Police, 23 police officers
in the rank of Superintendent of Police, 43 police officers in the rank
of Deputy Superintendent of Police, 90 police officers in the rank of
Police Inspector, 13 police officers in the rank of Police Sub-
Inspector, 4 police officers in the rank of Assistant Sub-Inspector of
Police and 145 police officers in the cadre of Head Constable. Apart
from the above, 234 Civil Police Constables, 15 Head Constable
Drivers, 30 Armed Police Constables and 148 Armed Police
Constable Drivers. Therefore, statutorily a Police Wing is created
and made as an inseparable part of the Lokayukta Institution. The
powers of the Police Wing in no way can be taken away by virtue of
the two notifications impugned in the present writ petition, one
withdrawing status of police stations of Lokayukta and the second
constituting ACB. The Police Wing attached to the institution of
Lokayukta has all the powers and duties conferred on it under the
Karnataka Police Act, 1964, and also under the Code of Criminal
Procedure.
91. It is further contended that Section 2(16) of the
Karnataka Police Act defines the term "Police Officer", which means
any member of the Police force appointed or deemed to be
appointed under the said Act and includes a special or an additional
police officer appointed under section 19 or 20 of the said Act.
Section 65 of the Police Act provides for duties of a Police Officer.
92. It is also contended that the only restriction provided
under the provisions of PC Act is that the officer to investigate the
offences punishable under the PC Act should not be below the rank
of DySP, as is clear from the reading of Section 17(c) of PC Act.
Therefore, cadre strength of the Karnataka Lokayukta referred to
above shows that there are police officers in the cadre of ADGP,
DIGP, SP and Dy.SPs in all around 747 officers. As such, there
cannot be any difficulty or objection for the Lokayukta Police in the
cadre referred to above to conduct investigation in respect of the
offences punishable under PC Act. There is no prohibition under the
PC Act in relation to the power of the Lokayukta Police, referred to
above, to conduct any investigation with regard to the offences
punishable under PC Act.
93. It is further contended that KL Act is a self contained
code providing for investigation, filing of complaint and all other
incidental matters with the police attached to the Lokayukta
institution by virtue of statutory provisions. Thereby, when the
Karnataka Lokayukta .Act is holding the field, it is not permissible
for the State in exercise of its executive power under Article 162 of
the Constitution of India to constitute ACB to nullify the power
conferred on the Lokayukta as an institution under the KL Act. In
support of its contention, Lokayukta relied upon judgment of the
Hon'ble Supreme Court in the case of I.T.C. Bhadrachalam
Paperboards vs. Mandal Revenue Officer, AP .
94. It is further contended that the State Government
under Article 162 of the Constitution of India, has issued
notification constituting ACB on an erroneous understanding of the
judgment of the Hon'ble Supreme Court of India in the case of C.
Rangaswamaiah and others -vs- Karnataka Lokayukta and
others .In fact the said judgment curtails the power of the State
Government to constitute ACB or any alternative mode of
investigating agency and interfere with the functioning of the
Lokayukta. The only principle in the Rangaswamaiah13 case is
that, it permits entrustment of extra work to any other investigating
agency/ACB only to a limited extent and that too with the consent
of Lokayukta. In the present case, the consent of the Lokayukta
has not been obtained. It is further contended that the power is
conferred on a very high authority, who is either the former Judge
of Supreme Court or who was the Chief Justice of the High Court or
(1996)6 SCC 634.
Supra at Footnote No.1
Supra at Footnote No.1
who has been a Judge of the High Court for a period more than 10
years to be Lokayukta and any High Court Judge to be
Upalokayukta. It is well settled principle of law that while
interpreting the provisions of law, the object of the legislation is
required to be kept in mind, as held by the Hon'ble Supreme Court
in case of Manmohan Das v. Bishun Das14.
95. In view of the dictum of the Hon'ble Supreme Court in
the case of Institution of A.P. Lokayukta UpaLokayukta &
Others v. T. Rama Subba Reddy & Another15 (Para 17) and the
mandate of Section 63 of the Lokpal and Lokayukta Act, 2013, any
effort to disband the Institution of the Karnataka Lokayukta will be
regressive. Hence, the Government Order dated 14.03.2016,
notification dated 19.03.2016 and all subsequent notifications
issued pursuant to the Government Order dated 14.03.2016 for the
purpose of formation and working of the ACB, could not have been
issued. The same is hit by the requirement of Section 21 of the
General Clauses Act.
AIR 1967 SC 643.
(1997) 9 SCC 42
96. The notifications dated 19.3.2016 withdrawing the
powers of the Lokayukta Police under Section 17 of the PC Act read
with Section 21 of the GC Act, is bad in law and there is no source
of power to issue such notifications.
97. It is further contended that the Government Order
dated 14.03.2016, is not tenable in view of the same being contrary
to the law laid down by the Hon'ble Apex Court. Paragraph 5 of
the Government Order seeks to create an additional layer, which is
not in consonance with the judgements of the Hon'ble Supreme
Court in the case of Vineet Narain v. Union of India16 and Dr.
Subramanian Swamy v. Director, CBI & Another17. In the
circumstances sought to pass appropriate orders in the interest of
public at large.
98. We have heard the learned counsel for the parties.
AIR 1998 SC 889
(2014) 8 SCC 682
V. Arguments advanced by Sri Ravi B. Naik, learned senior
counsel for Sri K.B. Monesh Kumar, learned counsel for the
petitioners in W.P. Nos.19386/2016 and 21468/2016
99. Sri Ravi B. Naiik, learned senior counsel for the
petitioners in Writ Petition Nos.19386/2016 and 21468/2016
contended that the provisions of Section 17 of the P.C. Act specifies
the persons authorized to investigate any offence punishable under
the said Act. He would further contend that earlier notifications
dated 6.2.1991 and 2.11.1992 were issued by the State
Government in support of the Lokayukta. In view of the provisions
of section 15 of the KL Act, there shall be such officers and
employees as may be prescribed to assist the Lokayukta and the
Upa-Lokayukta in the discharge of their functions under the said
Act. He would further contend that without prejudice to the
provisions of Section-1 of the Lokpal and Lokayuktas Act, 2013,
the Lokpal may, for the purpose of conducting any preliminary
inquiry or investigation, utilise the services of any officer or
organization or investigating agency of the Central Government or
any State Government, as the case may be with prior concurrence
of Central and State Government.
100. The learned senior counsel further contended that the
statutory powers assigned to Lokayukta and Upa-Lokayukta under
the provisions of the KL Act cannot be diluted by the executive
orders passed by the State Government under Article 162 of the
Constitution of India. The provisions of Section 23 of the KL Act
empowers the Government to make rules. He would further
contend that earlier the State Government, in exercise of the
powers conferred by Clause (s) of Section 2 of the Code of Criminal
Procedure, has issued notification declaring the offices of Lokayukta
Police as Police Stations, thereby they have power to investigate
the offences punishable under the PC Act. The same is withdrawn
by the impugned executive order, thereby made the Lokayukta and
Upa-Lokayukta powerless - paper tigers. He would further contend
that the State Government by notification dated 2.11.1992 and in
partial modification of the earlier Notification dated 6.2.1991, has
authorized all the Inspectors of Police, Office of the Karnataka
Lokayukta for the purpose of the proviso to Section 17 of the PC
Act, subject to the overall control and supervision by the Lokayukta
or Upa-Lokayukta as the case may be. Now by virtue of the
present notification, the said power is withdrawn which is
impermissible. The learned senior counsel further contended that
the field occupied under the provisions of the KL Act, cannot be
taken away by the State Government by way of the notification
dated 14.3.2016, thereby he sought to allow the petition.
101. In support of his contentions, learned senior counsel
relied upon the dictum of the Hon'ble Supreme Court in the
case of C. Rangaswamaiah -vs- Karnataka Lokayukta18
(paragraphs 26 to 30).
VI. Arguments advanced by Sri M.S. Bhagwat, learned senior
counsel for the petitioners in Writ Petition Nos.9147/2019,
16222/2017, 16223/2017, 16703/2017, 108010/2017,
108689/2017, 108690/2017 and 22851/2018
102. Writ Petition Nos.9147/2019, 16222/2017, 16223/2017,
16703/2017, 108010/2017, 108689/2017, 108690/2017 and
22851/2018 are filed by the individual petitioners in their personal
interest challenging the Government Order dated 14/03/2016
constituting ACB under Article 162 of Constitution of India.
103. Sri M.S. Bhagwat, learned senior counsel appearing for
petitioners in the above writ petitions contended that Entry-2 of List
Supra at Footnote No.1
II to the 7th Schedule of the Constitution of India contemplates
Police (including railway and village police) subject to the provisions
of Entry 2A of List-I. Entry 2A of List-I contemplates deployment
of any armed force of the Union or any other force subject to the
control of the Union or any contingent or unit thereof in any State
in aid of the Civil power; powers, jurisdiction, privileges and
liabilities of the members of such forces while on such deployment.
He would further contend that the provisions of Section 3 of the
Karnataka Police Act, 1963 contemplates that "there shall be one
Police Force for the whole State", thereby the State cannot create
one more police wing i.e., ACB under Article 162 of the Constitution
of India. He would further contend that the provisions of Section 4
of the Karnataka Police Act contemplates Superintendence of Police
Force to vest in the Government. The provisions of Section 20-A of
the Karnataka Police Act contemplates the State Security
Commission. When there is a specific wing under the Karnataka
Police Act, introducing of one more authority would not arise,
thereby the Executive order of the Government dated 14/03/2016
is contrary to the provisions of Sections - 3, 4 and 20-A of the
Police Act. Absolutely, there is no possibility of impartial
investigation at the instance of the authority constituted under the
notification. He further contended that the object of the Lokayukta
Act depicts that the Administrative Reforms Commission had
recommended for setting up of the institution of Lokayukta for the
purpose of improving the standards of public administration, by
looking into complaints against administrative actions, including
cases of corruption, favouritism and official indiscipline in
administration machinery. He referred to the provisions of Section 2
(2) of the KL Act, which contemplates that 'allegation' in relation to
a public servant means 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; and
(c) is guilty of corruption, favourtisim, nepotism, or
lack of integrity in his capacity as such public servant.
104. Learned senior counsel contended that as per sub-
section (5) of Section 2 of the KL Act, 'corruption' includes
anything made punishable under Chapter IX of the Indian Penal
Code or under the provisions of PC Act. He also contended that
sub-section(8) of Section 2 of the KL Act defines 'grievance', which
means a claim by a person that he sustained injustice or undue
hardship in consequence of maladministration. He further
contended that Section 7 of the KL Act deals with matters which
may be investigated by the Lokayukta and an Upa-Lokayukta.
Section 7(2) of the KL Act prescribes that subject to the provisions
of the said Act, an Upa-lokayukta 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 Upa-Lokayukta recorded in
writing, the subject of a grievance or an allegation.
105. Learned senior counsel further contended that the
provisions of Section 14 of the KL Act contemplates initiation of
prosecution and Section 23 of the KL Act contemplates power to
make rules. He further contended that a separate police wing has
been constituted to look after the allegation of corruption against
the public servant. In view of the aforesaid provisions of KL Act
and the Rules, the State Government has no authority to pass an
executive order under the provisions of the Article 162 of the
Constriction of India, diluting the statutory powers as contemplated
under the KL Act and the Police Act. He would further contend that
Section 63 of the Lokpal and Lokayuktas Act, 2013 relates to
establishment of Lokayukta and as per the said Section, every State
shall establish a body to be known as the Lokayukta for the State, if
not so established, constituted or appointed, by a law made by the
State Legislature, to deal with complaints relating to corruption
against certain public functionaries, within a period of one year
from the date of commencement of the said Act. He would further
contend that the object of the Lokpal and Lokayuktas Act as stated
supra is that there must be a Lokayukta to deal with complaints and
eradicate the corruption under certain public functionaries, thereby
the executive order passed by the State Government is
impermissible and the State Government indirectly encouraging the
corruption in the State. Therefore, he sought to allow the writ
petitions.
106. In support of his contentions, the learned senior counsel
relied upon the following judgments:
(1) State Of Sikkim vs Dorjee Tshering Bhutia And Ors
[1991(4) SCC 243 (paragraphs 14 & 15)
(2) Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors
[1987(1) SCC 378] (Paragraph No.7)
(3) Bishambhar Dayal Chandra Mohan vs. State Of
Uttar Pradesh & Ors [(1982)1 SCC 39] (paragraph
No.27)
(4) B.N.Nagarajan & others vs. State of Mysore &
others [AIR 1966 SC 1942] (paragraph No.5)
(5) M.V.Dixit vs. State of Karnataka & others
[2004(6) Kar. L.J. 69] (Paragraph No.24)
(6) C.Rangaswamaiah & others vs. Karnatka
Lokayukta & others [(1998) 6 SCC 66]:
(paragraph No.24)
(7) Prakash Singh & others vs. Union of India &
others [(2006)8 SCC 1] (paragraph No.31):
(8) State of Gujarat & others vs. State of Gujarat &
others [(2010) 12 SCC 254]
VII. Arguments advanced by Sri V. Lakshminarayana,
learned senior counsel/amicus curiae
107. Sri V. Lakshminarayana, learned senior counsel, on
instructions from the instructing counsel, submitted that W.P.
No.58252/2017, 3109/2018 and 4319/2018 may be dismissed as
withdrawn and accordingly, the said writ petitions were dismissed
as withdrawn by separate orders on 27.6.2022. However, since
he was appearing for some of the private parties and has argued
the matter at length, this Court by the order dated 27.6.2022
requested him to assist the Court as an amicus curiae.
Accordingly, he assisted the Court as amicus curiae.
108. Sri V. Lakshminarayan, learned senior counsel/amicus
curiae while referring to the impugned notification dated 14.3.2016,
has contended that notification contemplates that the Government
has realized necessity of a strong and effective vigilance system in
addition to the Karnataka Lokayukta, in order to prevent the
inappropriate operation of the administrative apparatus and
improve the administration and therefore, it has been decided to
divest Karnataka Lokayukta of its additional responsibility under the
PC Act, thereby the Government has ordered to create an Anti
Corruption Bureau so as to effectively enforce and conduct
independent investigations under the PC Act, establish Vigilance
Cells in all the departments of the government and a Vigilance
Advisory Board to supervise such a system of vigilance. He would
further contend that vide Notification dated 14/03/2016, the ACB
was created with the following designations:
1. Additional Director General of Police (ADGP)
2. Inspector General of Police (IGP)
3. Superintendent of Police (SP)
4. Deputy Superintendent of Police (DySP)
5. Police Inspectors (PI)
6. Head Constable/Police Constable (HC/PC)
In order to supervise the Vigilance System in the State, a Vigilance
Advisory Board has been created consisting of -
1. Chief Secretary
2. Additional Chief Secretary, Internal Administration
3. Principal Secretary, Department of Finance
4. Principal Secretary, DPAR
5. D.G. & I.G.P.
6. Two Eminent personalities experienced and experts in
the field of Administration and Public issues
7. Secretary, Vigilance Wing of DPAR
109. Learned senior counsel/amicus curiae further pointed
out that the Notification contemplates that the ACB will function
under the overall supervision of the Department of Personnel and
Administrative Reforms and in order to provide the necessary
administrative support to the ACB, a post of the rank of Secretary
would be created in the Department of Personnel and
Administrative Reforms and under his leadership, a Vigilance Wing
is created. The Secretary of the DPAR Vigilance Wing will report to
the Hon'ble Chief Minister through the Chief Secretary.
110. Learned senior counsel/amicus curiae would further
contend that by virtue of Government Order, the independent
powers conferred under the statute has been removed which is
impermissible. He would further contend that the Hon'ble Chief
Minister has no role in the independent investigation by the
competent authority, thereby the Government Order dated
14/03/2016 is contrary to the object of the KL Act. The
investigation has to be done by the Lokayukta under the PC Act and
the State cannot appoint other agency by way of executive order to
proceed under the provisions of Section 17 of the PC Act. He would
further contend that the authority should be independent of the
Executive, Legislature, Judiciary and the fourth wing-Press & Media.
111. Learned senior counsel would further contend that
under the provisions of Section 15(3) of the KL Act, the Lokayukta
or an Upa-lokayukta may for the purpose of conducting
investigations under this Act utilise the services of any officer or
investigating agency of the State Government or the Central
Government.
112. Learned senior counsel/amicus curiae further
contended that 'United Nations Convention against Corruption' is
committed to pursue the policy of zero tolerance against corruption
and the instrument of ratification is dated 9.5.2011. He further
contended that the Police Officers are under the administrative
control of the Lokayukta or Upa-lokayukta under the Act. He
invited the attention of the Court to Article 1 of United Nations
Convention against corruption, which relates to statement of
purpose. The purposes of Convention are:
(a) To promote and strengthen measures to prevent
and combat corruption more efficiently and
effectively;
(b) To promote, facilitate and support international
cooperation and technical assistance in the
prevention of and fight against corruption,
including in asset recovery;
(c) To promote integrity, accountability and proper
management of public affairs and public property.
113. Learned senior counsel/amicus curiae also invited the
attention of the Court to Article-3 of United Nations Convention
against corruption, which relates to scope of application. Article-3
prescribes that the convention shall apply, in accordance with its
terms, to the prevention, investigation and prosecution of
corruption and to the freezing, seizure, confiscation and return of
the proceeds of offences established in accordance with the
convention.
114. Learned senior counsel/amicus curiae contended that
Chapter-II of United Nations Convention against Corruption
contemplates preventive measures and it is relevant to refer to
certain Articles of the said chapter. Article 5 deals with preventive
anti-corruption policies and Article-6 relates to preventive anti-
corruption body or bodies. Sub-clause (2) of Article 6
contemplates that each state party shall grant the body or bodies
referred to in paragraph 1 of this article the necessary
independence, in accordance with the fundamental principles of its
legal system, to enable the body or bodies to carry out its or their
functions effectively and free from any undue influence. Article -
7(1)(d) relates to promoting education and training programmes.
Article 30 contemplates prosecution, adjudication and sanctions.
Article 36 contemplates specialized authorities and it stipulates that
each State Party shall, in accordance with the fundamental
principles of its legal system, ensure the existence of a body or
bodies or persons specialized in combating corruption through law
enforcement. Such body or bodies or persons shall be granted the
necessary independence, in accordance with the fundamental
principles of the legal system of the state Party, to be able to carry
out their functions effectively and without any undue influence.
Such persons or staff of such body or bodies should have the
appropriate training and resources to carry out their task.
115. Learned senior counsel/amicus curiae would further
contend that the provisions of Article 253 of the Constitution of
India relates to legislation for giving effect to international
agreements. It contemplates that notwithstanding anything in the
foregoing provisions of this Chapter, Parliament has power to make
any law for the whole or any part of the territory of India for
implementing any treaty, agreement or convention with any other
country or countries or any decision made at any international
conference, association or other body.
116. Learned senior counsel would further contend that the
statement of objects and reasons of the KL Act depicts that the
institution of Lokayukta was set up for the purpose of improving the
standards of public administration, by looking into complaints
against administrative actions, including cases of corruption,
favoritism and official indiscipline in the administration machinery.
He brought to the notice of the Court the definition of 'public
servant' as defined under sub-section (12) of Section 2 of the KL
Act so also provisos (1) and (2) of Section 17 of the P.C. Act and
contends that there cannot be any dilution of powers. The learned
Senior Counsel would further contend that the investigation has
nothing to do with the administration. Once the notification for
investigation is issued under Section 17(c) of the PC Act, it
becomes statutory enforcement and the same cannot be withdrawn
by the executive orders of the State Government. He further
pointed out that the corruption can be investigated only by one
investigating agency and there should not be any influence. He
would further contend that the investigation should be fair and
proper on the part of the investigating officer, who is the backbone
of the Rule of Law. He further contended that investigation should
be independent without any bias, fear or favour.
117. Learned senior counsel/amicus curiae would further
contend that the allegation with regard to corruption can be
investigated only by one authority under the provisions of PC Act
and not two authorities viz., Lokayukta as well as ACB. The
creation of ACB parallel to the institution of Lokayukta is bad in law.
He would further contend that the Government Order dated
14.3.2016 issued under the provisions of Article 162 of the
Constitution of India clearly depicts that at every step there will be
political influence on the officer concerned which is impermissible.
ACB should work under the provisions of the KL Act in view of the
dictum of the Hon'ble Supreme Court in the case of
Rangaswamaiah19 stated supra. The provisions of Section 21 of
the General Clauses Act is not applicable as contended by the
Supra at Footnote No.1
learned Advocate General, in view of Vineet Narain20 case.
Therefore, learned senior counsel/amicus curiae sought to quash
the Government Order dated 14.3.2016 constituting ACB and allow
the writ petitions.
118. In support of his contentions, learned senior
counsel/amicus curiae relied upon the following judgments:
1. Vineet Narain -vs- Union of India reported in
(1998)1 SCC 226 (relevant paras - 38, 39, 40,
41, 42, 43, 44 and 58), particularly at paragraph-
38 it is stated that the meaning of the word
"superintendence" in Section 4(1) of the Delhi
Special Police Act, 1946 determines the scope of
the authority of the Central Government in this
context.
2. Justice Chandrashekaraiah (Retired) vs. Janekere
C.Krishna & others reported in (2013)3 SCC 117
(relevant paragraphs - 19, 107, 108, 112, 124).
3. K.T.M.S. MOHD -VS- UNION OF INDIA reported in
(1992)3 SCC 178 (paragraph-23).
(1998)1 SCC 226
4. M.C. Mehta (Taj Corridor Scam) -vs- Union of
India and others reported in (2007)1 SCC 110
(paras 24, 26 and 27)
5. Subramanian Swamy -vs- Director, Central
Bureau of Investigation and another reported in
(2014)8 SCC 682 (constitution Bench) (paras 54,
57, 59, 64(44), 70, 71 and 72).
6. Rakesh Kumar Paul -vs- State of Assam reported
in (2017) 15 SCC 67 (paragraph-26);
7. Prakash Singh & Others -vs- Union Of India And
Others reported in (2006)8 SCC 1 (paragraphs-
13, 21 to 25 and 32)
8. T.P. Senkumar, IPS -vs- Union of India and
Others reported in (2017) 6 SCC 801 (paragraph
70);
9. R. Sarala -vs- T.S. Velu and Others reported in
(2000) 4 SCC 459 (paragraphs-11 to 15,
particularly paragraph-18)
10. Mithilesh Kumar Singh -vs- State of Rajasthan
and Others reported in (2015)9 SCC 795
(paragraph-6)
11. Northern India Caterers (P) Ltd. v. State of
Punjab, reported in AIR 1967 SC 1581
(paragraph-11).
VIII. Arguments advanced by Sri Basavaraju .S, learned
senior counsel for Sri Gowtham A.R, learned counsel for the
petitioner/s in Writ Petition No.23622/2016
119. Sri Basavaraju, learned Senior Counsel along with Sri
Gowtham A.R., learned counsel for the petitioner in W.P.
No.23622/2016 contended that the present writ petition is filed in
public interest challenging the Government Order dated 14.03.2016
at Annexure-A as well as subsequent notifications at Annexures-B,
C, D, E, all dated 19.3.2016. Learned senior counsel contended
that the Government Order dated 14.03.2016 is contrary to the
provisions of Articles 14, 19, 21 and 300 of the Constitution of
India. He further contended that every institution should maintain
institutional responsibility and integrity and any attempt to dilute
the same is undemocratic and against the basic structure of the
Constitution, which is impermissible. He contended that the
Government Order dated 14.03.2016 suffers from legal malafides
since it protects certain persons and has not taken into
consideration the definition of 'public servant' as contemplated
under Section 2(12) and 7 of the KL Act.
120. In support of his contentions, learned Senior Counsel
relied upon the following judgments:
1. Yakub Abdul Razak Memon v. State of
Maharashtra, reported in (2013)13 SCC 1
(paragraphs 91 to 100)
2. Institution of A.P. Lokayukta/Upa-Lokayukta and
others vs. T. Rama Subba Reddy and another
reported in (1997) 9 SCC 42 (paragraph 19)
IX. Arguments advanced by Sri D.L. Jagadish, learned
senior counsel for Ms. Rakshitha D.J., learned counsel for the
petitioner in W.P. No.16862/2017
121. Sri D.L.Jagadish, learned Senior Counsel for
Ms.Rakshitha D.J., learned counsel for the petitioner contended
that the impugned Government Order dated 14.03.2016 passed by
the State Government cannot be sustained as the same is contrary
to the dictum of the Hon'ble Supreme Court in the case of Sri C.
Rangaswamaiah21 (paragraphs-29 and 30). He further contended
that by virtue of the Government Order dated 14.03.2016,
independence of Lokayukta and its effective functioning as a matter
of utmost importance has been removed/diluted and people's faith
in the working of public servants is shaken. He further contended
that the dictums/decisions of Lokayukta or Upa-Lokayukta should
not become mere paper directions. Lokayukta and Upa-Lokayukta
must be armed with proper tooth and claws so that the efforts put
in by them are not wasted and their reports are not shelved by the
disciplinary authorities concerned.
122. Learned senior counsel further contended that the
Government Order dated 14.03.2016 is contrary to the provisions
of Section 15(1) and (2) of the KL Act. He further contended that
the 'public servant' as defined under the provisions of Section 2(12)
of the KL Act includes the Hon'ble Chief Minister. But the impugned
Government Order dated 14.03.2016 indirectly excludes some of
the authorities mentioned in Section 2(12) of the KL Act including
the Hon'ble Chief Minister.
Supra at Footnote No.1
123. In support of his contentions, learned Senior Counsel
relied upon the dictum of the Hon'ble Supreme Court in the case of
Chandrashekaraiah v. Janekere C. Krishna22 (paragraphs 20,
21 and 36).
X. Arguments advanced by Sri C.V. Sudhindra, learned
counsel for the petitioners in W.P.No.28341/2017 and
W.P.No.18042/2019
124. These writ petitions are filed by the individual
petitioners in their personal interest challenging the Government
Order dated 14/03/2016 constituting ACB under Article 162 of
Constitution of India so also the subsequent supporting notifications
dated 19.3.2016, 30.03.2016 and 21.04.2016 issued by
respondent No.1.
125. Sri C.V. Sudhindra, learned counsel for the petitioners
contended that Section 17 of the PC Act contemplates the persons
authorized to investigate the cases under the PC Act and first
proviso to the said section envisages that if a police officer not
(2013)3 SCC 117
below the rank of an Inspector of Police is authorised by the State
Government in this behalf by general or special order, he may also
investigate any such offence without the order of a Metropolitan
Magistrate or a Magistrate of the first class, as the case may be, or
make arrest therefor without a warrant. The second proviso to the
said section provides further that an offence referred to in clause
(b) of sub-section (1)] of section 13 shall not be investigated
without the order of a police officer not below the rank of a
Superintendent of Police. He further contended that the said
provisions contemplate to investigate -
(a) trap cases
(b) disproportionate assets cases, as contemplated
under Sections 7 and 13(a)(b)(c)(d)(e) of the PC
Act.
126. Learned counsel further contended that by the
impugned Government Order dated 14.03.2016, the ACB is
constituted with the following posts.
Sl. Designation of posts No. of posts
No.
6 Head Constables/Police Constables 200
(HC/PC)
127. Learned counsel also contended that in order to
supervise the Vigilance system in the State, a Vigilance Advisory
Board has been created comprising of the following persons:
Sl. Designation of posts
No.
1 Chief Secretary President of
Board
2 Addl. Chief Secretary, Internal Member
Administration
3 Principal Secretary, Department of Member
Finance
3 Principal Secretary, DPAR Member
4 D.G. & I.G.P. Member
5 Two prominent persons having Member
specialisation and experience in
Administration and Public Matters
6 Secretary, DPAR Vigilance Division Member
Secretary
128. Learned counsel further contended that the Vigilance
Advisory Board will meet atleast once in three months, to review
the operations of the Vigilance Cells in the Government and to
review the progress of the ACB and the cases pending before it. In
case the Vigilance Advisory Board decides to refer the investigation
to be conducted by an outside agency/ogranization, such matter
after approval of the Chief Minister may be handed over to the
Criminal Investigation Department (C.I.D.). Therefore, he
contended that one cannot expect the Vigilance Advisory Board
functions independently, since even to refer the investigation to
C.I.D., approval of the Chief Minister must be obtained.
129. Learned counsel also contended that Section 2(16) of
the Karnataka Police Act contemplates that, 'Police Officer' means
any member of the police force appointed or deemed to be
appointed under the said Act and includes a special or an additional
police officer appointed under Section 19 or 20. He further
contended that Section 2(22) of the Karnataka Police Act
contemplates that 'Superior Police' means members of the Police
Force above the rank of Inspector. He further contended that, the
provisions of Section 6 of the Karnataka Police Act, 1963,
contemplates that, for the direction, control and supervision of the
Police service, the Government shall appoint a Director General and
Inspector General of Police, who shall subject to the control of the
government, exercise such powers and perform such functions and
duties and shall have such responsibilities and such authority as
may be provided by or under the said Act. Sub Section (2) of
Section (6) of the Karnataka Police Act, 1963, contemplates that
the Director General and Inspector General of Police shall be
selected by the State Government from amongst officers of the
Indian Police Service in the rank of Director General of Police who
have been empanelled for promotion to that rank on the basis of
their length of service, very good history of service, professional
knowledge and ability to lead Police Force in the State. Therefore,
he contended that the impugned Government Order dated
14.03.2016 is in utter violation of Articles 14 and 21 of the
Constitution of India and the provisions of Section 6(1) and (2) of
the Karnataka Police Act, thereby the very intention and enactment
of the Karnataka Police Act, 1963 is frustrated. Therefore, he
sought to allow the writ petition.
XI. Arguments advanced by Sri Sharath S. Gowda, learned
counsel for the petitioner/s in Writ Petition No.16697/2017
130. The petitioner filed this writ petition in his personal
interest challenging the validity of the Government Order dated
14.3.2016 constituting the ACB and the complaint dated 6.3.2017
and the FIR registered thereon dated 6.3.2017.
131. Sri Sharath S Goiwda, learned counsel for the petitioner
while adopting the arguments of Sri M.S. Bhagwath, learned senior
counsel and Sri V. Lakshminarayana, learned senior
counsel/amicus curiae contended that the definition of 'public
servant' as contemplated under the provisions of Section 2(12) of
the KL Act includes the Chief Minister; a Minister; a Member of the
State Legislature, a Government servant etc., By virtue of the
impugned Government Order constituting ACB, ultimately the
investigation or report has to be approved by the Chief Minister
and thereby, he cannot decide his own case. Therefore, he sought
to allow the writ petition by quashing the Government order dated
14.3.2016 etc.,
XII. Arguments advanced by Sri Ashok Haranahalli, learned
senior counsel for Karnataka Lokayukta
132. Sri Ashok Haranahalli, learned senior counsel along with
Sri B.S.Prasad and Sri Venkatesh S.Arabatti, learned counsel for
Lakayukta contended that KL Act enacted for the purpose of
improving the standards of public administration, by looking into
complaints against administrative actions, including cases of
corruption, favouritism and official indiscipline in administrative
machinery. Where, after investigation into the complaint, the
Lokayukta considers that the allegation against a public servant is
prima facie true and makes a declaration and in case, the
declaration is accepted by the Competent Authority, the public
servant concerned, if he is a Chief Minister or any other Minister or
Member of State Legislature shall resign his office and if he is any
other non-official shall be deemed to have vacated his office, and, if
an official, shall be deemed to have been kept under suspension,
with effect from the date of the acceptance of the declaration.
Learned senior counsel further contended that if, after
investigation, the Lokayukta is satisfied that the public servant has
committed any criminal offence, he may initiate prosecution without
reference to any other authority. Any prior sanction required under
any law for such prosecution shall be deemed to have been
granted. The Vigilance Commission is abolished, but all inquiries
and investigations and other disciplinary proceedings pending
before the Vigilance Commission got transferred to the Lokayukta.
The Bill became an Act with some modifications as the Karnataka
Lokayukta Act, 1984. Thereby, he contended that the impugned
Executive Order passed by the State Government under the
provisions of Article 162 of the Constitution of India dated
14/03/2016 is contrary to the very object of the KL Act.
133. Learned senior counsel further refers to the provisions
of Section 14 of the KL Act which states about the initiation of
prosecution. If after investigation into any complaint the Lokayukta
or an Upa Lokayukta is satisfied that the public servant has
committed any criminal offence and should be prosecuted in a
Court of law for such offence, then, he may pass an order to that
effect and initiate prosecution of the public servant concerned and if
prior sanction of any authority is required for such prosecution,
then, notwithstanding anything contained in any law, such sanction
shall be deemed to have been granted by the appropriate authority
on the date of such order or any other agency.
134. Learned senior counsel would further contend that
Section 15(3) Lokayukta Act, 1984 contemplates that without
prejudice to the provisions of sub-section (1) the Lokayukta or an
Upalokayukta may for the purpose of conducting investigations
under this Act utilise the services of any officer or investigating
agency of the State Government; or any officer or investigating
agency of the Central Government with the prior concurrence of the
State Government. He specifically pointed out that Section 15(4) of
the KL Act contemplates that the officers and other employees
referred to in sub-section (1) shall be under the administrative and
disciplinary control of the Lokayukta. He further contended that
'United Nations Convention against Corruption' is committed to
pursue the policy of zero tolerance and the India has ratified it and
this convention imposed number of obligations, some mandatory,
some recommendatory, some optional etc.
135. Learned senior counsel would further refer to the
provisions of Sections 11 and 12 of the Lokpal and Lokayuktas Act,
2013 with regard to enquiry wing and prosecution wing. He would
further refer to the provisions Section 23 of the said Act which deals
with power of Lokpal to grant sanction for initiating prosecution.
Sub-section (2) of Section 23 contemplates that no prosecution
under sub-section (1) shall be initiated against any public servant
accused of any offence alleged to have been committed by him
while acting or purporting to act in the discharge of his official duty,
and no court shall take cognizance of such offence except with the
previous sanction of the Lokpal. He also refers to the provisions of
Section 24 of the Lokpal and Lokayuktas Act, which deals with
action on investigation against public servant being Prime Minister,
Ministers or Members of Parliament and the said section
contemplates that where, after the conclusion of the investigation,
the findings of the Lokpal disclose the commission of an offence
under the PC Act by a public servant referred to in clause (a) or
clause (b) or clause (c) of sub-section (1) of section 14, the Lokpal
may file a case in the Special Court and shall send a copy of the
report together with its findings to the competent authority. He
also refers to the provisions of Section 63 of the Lokpal and
Lokayuktas Act, which relates to establishment of Lokayukta. The
said section contemplates that every State shall establish a body to
be known as the Lokayukta for the State, if not so established,
constituted or appointed, by a law made by the State Legislature, to
deal with complaints relating to corruption against certain public
functionaries, within a period of one year from the date of
commencement of the said Act.
136. Finally, learned senior counsel contended that the
impugned Executive Order passed by the State is in utter violation
of the provisions of Sections 11, 12, 15, 23 and 24 of the Lokpal
and Lokayuktas Act. He would further contend that the powers of
Lokayukta should be on par with the powers of Lokpal. Therefore,
the Executive Order passed by the State Government under the
provisions of Article 162 of the Constitution of India is contrary and
bad in law. In support of the said contention, he relied upon the
dictum of Hon'ble Supreme Court in the case of Ashwini Kumar
Upadhyay vs. Union of India & others23 (paragraph-6).
[W.P.(Civil).No. 684/2016 - SLP(C)No.22841/2016 dated 19/04/2018]
137. Learned senior counsel further contended that the
Lokpal Act enacted under Article 223 of the Constitution of India.
The powers to prosecute was given by the Notification dated
06/02/1991 under the provisions of Section 17(c) of the PC Act and
the same was withdrawn on 19/03/2016.
138. Learned senior counsel mainly drawn the attention of
the Court to paragraph No.25 of the judgment in Rangaswamaiah
cited supra, wherein it is stated that " if the State Government
wants to entrust such extra work to the officers on deputation with
the Lokayukta, if can certainly inform the Lokayukta of its desire to
do so. If the Lokayukta agrees to such entrustment, there will be no
problem. But if for good reasons the Lokayukta thinks that such
entrustment of work by the State Government is likely to affect its
functioning or is likely to affect its independence, it can certainly
inform the State Government accordingly. In case the State
Government does not accept the view point of the Lokayukta, then
it will be open to the Lokayukta-having regard to the need to
preserve its independence and effective functioning to take action
Supra at Footnote No.1
under section 15(4) (read with section 15(2)) and direct that these
officers on deputation in its police wing will not take up any such
work entrusted to them by the State Government. Of course, it is
expected that the State Government and the Lok Ayukta will avoid
any such unpleasant situations but will act reasonably in their
respective spheres."
139. Learned senior counsel also drawn the attention of the
Court to paragraph 28 of the judgment in Rangaswamaiah25 cited
supra, where it is stated that "if instead of deputation of police
officers from the Government, any other solution can be found, that
is a matter to be decided amicably between the State Government
and the Lok Ayukta, - keeping in view the independence of the Lok
Ayukta and its effective functioning as matters of utmost
importance."
140. Learned senior counsel would further contend that with
regard to the powers of the Lokayukta, the Hon'ble Supreme Court
in the case of Institution of A.P. Lokayukta/Upa-Lokayukta,
Supra at Footnote No.1
A.P. & others .vs. T.Rama Subba Reddy and another26 at
paragraph No.17 has held as under:
"17. Before parting with these matters, it may be
necessary to note that the legislative intent behind the
enactment is to see that the public servants covered by
the sweep of the Act should be answerable for their
actions as such to the Lokayukta who is to be a Judge
or a retired Chief Justice of the High Court and in
appropriate cases to the Upa-Lokayukta who is a
District Judge of Grade 1 as recommended by the Chief
Justice of the High Court, so that these statutory
authorities can work as real ombudsmen for ensuring
that people's faith in the working of these public
servants is not shaken. These statutory authorities are
meant to cater to the need of the public at large with a
view to seeing that public confidence in the working of
public bodies remains intact. When such authorities
consist of high judicial dignitaries it would be obvious
that such authorities should be armed with appropriate
powers and sanctions so that their orders and opinions
do not become mere paper directions. The decisions of
Lokayukta and Upa-Lokayukta, therefore, must be
capable of being fully implemented. These authorities
should not be reduced to mere paper tigers but must be
(1997)9 SCC 42
armed with proper teeth and claws so that the efforts
put in by them are not wasted and their reports are not
shelved by the disciplinary authorities concerned. When
we turn to Section 12, sub-section (3) of the Act, we
find that once the report is forwarded by the Lokayukta
or Upa-Lokayukta recommending the imposition of
penalty of removal from the office of a public servant,
all that is provided is that it should be lawful for the
Government without any further inquiry to take action
on the basis of the said recommendation for the
removal of such public servant from his office and for
making him ineligible for being elected to any office etc.
Even if it may be lawful for the Government to act on
such recommendation, it is nowhere provided that the
Government will be bound to comply with the
recommendation of the Lokayukta or Upa-Lokayukta.
The question may arise in a properly-instituted public
interest litigation as to whether the provision of Section
12(3) of the Act implies a power coupled with duty
which can be enforced by a writ of mandamus by the
High Court or by writ of any other competent court but
apart from such litigations and uncertainty underlying
the results thereof, it would be more appropriate for the
legislature itself to make a clear provision for due
compliance with the report of Lokayukta or Upa-
Lokayukta so that the public confidence in the working
of the system does not get eroded and these
institutions can effectively justify their creation under
the statute."
141. Learned senior counsel also relied upon the dictum of
the Hon'ble Supreme Court in the case of Dr. Subramanian
Swamy vs. Director, Central Bureau of Investigation &
another27 wherein at paragraphs 58, 59, 67, 71, 74 it is held as
under:
"58. It seems to us that classification which is made in
Section 6-A on the basis of status in the Government
service is not permissible under Article 14 as it defeats
the purpose of finding prima facie truth into the
allegations of graft, which amount to an offence under
the PC Act, 1988. Can there be sound differentiation
between corrupt public servants based on their status?
Surely not, because irrespective of their status or
position, corrupt public servants are corrupters of public
power. The corrupt public servants, whether high or
low, are birds of the same feather and must be
confronted with the process of investigation and inquiry
equally. Based on the position or status in service, no
distinction can be made between public servants
AIR 2014 SC 2140
against whom there are allegations amounting to an
offence under the PC Act, 1988.
59. Corruption is an enemy of the nation and tracking
down corrupt public servants and punishing such
persons is a necessary mandate of the PC Act, 1988. It
is difficult to justify the classification which has been
made in Section 6-A because the goal of law in the PC
Act, 1988 is to meet corruption cases with a very strong
hand and all public servants are warned through such a
legislative measure that corrupt public servants have to
face very serious consequences. In the words of
Mathew, J. in Ambica Mills Ltd.72, "The equal protection
of the laws is a pledge of the protection of equal laws.
But laws may classify...... A reasonable classification is
one which includes all who are similarly situated and
none who are not". Mathew, J., while explaining the
meaning of the words, 'similarly situated' stated that we
must look beyond the classification to the purpose of
the law. The purpose of a law may be either the
elimination of a public mischief or the achievement of
some positive public good. The classification made in
Section 6-A neither eliminates public mischief nor
achieves some positive public good. On the other hand,
it advances public mischief and protects the crime-doer.
The provision thwarts an independent, unhampered,
unbiased, efficient and fearless inquiry/investigation to
track down the corrupt public servants.
67. Can it be said that the classification is based on
intelligible differentia when one set of bureaucrats of
Joint Secretary level and above who are working with
the Central Government are offered protection under
Section 6-A while the same level of officers who are
working in the States do not get protection though both
classes of these officers are accused of an offence under
PC Act, 1988 and inquiry/investigation into such
allegations is to be carried out. Our answer is in the
negative. The provision in Section 6-A, thus, impedes
tracking down the corrupt senior bureaucrats as without
previous approval of the Central Government, the CBI
cannot even hold preliminary inquiry much less an
investigation into the allegations. The protection in
Section 6-A has propensity of shielding the corrupt. The
object of Section 6-A, that senior public servants of the
level of Joint Secretary and above who take policy
decision must not be put to any harassment, side-tracks
the fundamental objective of the PC Act, 1988 to deal
with corruption and act against senior public servants.
The CBI is not able to proceed even to collect the
material to unearth prima facie substance into the
merits of allegations. Thus, the object of Section 6-A
itself is discriminatory. That being the position, the
discrimination cannot be justified on the ground that
there is a reasonable classification because it has
rational relation to the object sought to be achieved.
71. Corruption is an enemy of nation and tracking
down corrupt public servant, howsoever high he may
be, and punishing such person is a necessary mandate
under the PC Act, 1988. The status or position of public
servant does not qualify such public servant from
exemption from equal treatment. The decision making
power does not segregate corrupt officers into two
classes as they are common crime doers and have to be
tracked down by the same process of inquiry and
investigation.
74. Corruption corrodes the moral fabric of the society
and corruption by public servants not only leads to
corrosion of the moral fabric of the society but also
harmful to the national economy and national interest,
as the persons occupying high posts in the Government
by misusing their power due to corruption can cause
considerable damage to the national economy, national
interest and image of the country."
142. In support of his contentions, learned senior counsel
further relied upon the following judgments:
1. Prakash Singh & others vs. Union of India &
others28 (paragraph Nos.19, 22, 25 and 29)
2. C. Rangaswamaiah and others vs. Karnataka
Lokayukta and others29, (paragraph Nos.19, 20, 25,
27 and 28)
3. Justice K.P.Mohapatra vs. Sri Ram Chandra Nayak
& others30 (paragraph Nos.11 and 12)
Therefore, he sought to allow the writ petitions.
XIII. Arguments advanced by Sri Prabhuling K. Navadgi,
learned Advocate General for the respondent/State
143. Sri Prabhuling K.Navadgi, learned Advocate General
while justifying the impugned Government Order dated 14.3.2016
passed by the State Government constituting ACB, has contended
that in order to decide the controversy raised between the parties,
following issued would arise for consideration:
" I) Whether the impugned notification
constituting ACB is in excess of the power conferred
(2006)8 SCC 1
Supra Footnote No.1
2002(8) SCC 1
upon the Government under Article 162 of the
Constitution of India?
a) Whether the constitution of ACB by way of
executive instructions is impermissible- since
according to the petitioners there are two
enactments operating in the same field viz..
Karnataka Police Act, 1963 and Karnataka
Lokayukta Act, 1984.
b) The parameters and general principles
under Article 162 of the Constitution of India?
II] Whether the constitution of ACB violates the
provisions of the Karnataka Lokayukta Act, 1984?
a) Whether it is impermissible for any
jurisdictional police to investigate offences
under the Prevention of Corruption Act, 1988-
since it is an occupied field by the Karnataka
Lokayukta Act, 1984?
b) Whether the present impugned notification
impinges upon the autonomy, independence
and functioning of the Lokayukta under the
Karnataka Lokayukta Act, 1984?
III] Whether the impugned notification is in
conflict with the Lokpal and Lokayuktas Act, 2013?
IV] Whether the impugned notification, which in
turn constitutes vigilance advisory board or which
provides for obtaining prior approval of the competent
authority, is arbitrary, unguided and undermines the
independence of ACB?
V] Tabulation of number of cases filed by the ACB after
its constitution."
144. Learned Advocate General further contended that under
Article 162 of the Constitution of India, the Executive can make any
order under List - II or List III to the 7th Schedule of the
Constitution of India. He draws the attention of the Court to the
three enactments viz., Karnataka Police Act, 1963, KL Act and PC
Act.
145. Learned Advocate General further contended that as per
the provisions of Section 5 of the Karnataka Police Act, the Police
Force shall consist of such number in the several ranks and have
such organisation and such powers, functions and duties as the
Government may by general or special order determine, but all are
working under the Police Act. ACB is created under Article 162 of
the Constitution of India for the purpose of investigating the
offences under the provisions of the PC Act.
146. Learned Advocate General further contended that the
Executive Order passed by the State Government dated 14.3.2016
does not conflict any of the provisions either under the KL Act or
the Police Act. In terms of the Executive order dated 14.3.2016,
the ACB is working under the provisions of the PC Act as a
separate Wing or authority and the same is nothing to do with the
provisions of the KL Act. The powers and functions of the
Lokayukta and ACB are entirely different. He further contended
that under the provisions of Section 2(c) of PC Act, 'public servant'
means persons falling under any of the 12 sub-clauses of the said
section. In view of the provisions of Sections 7, 7A, 8, 9, 10, 13,
17 (a) and (b) and 23 of the P.C. Act, the ACB has to register,
investigate and proceed in accordance with law. The investigation
can be done by the ACB as contemplated under the provisions of
the P.C. Act. He would further contend that the provisions of
Sections 17A and 19 of the P.C. Act clearly depict that Section 3 of
the P.C. Act is a complete code in itself. The provisions of Section
2(s) of the Code of Criminal Procedure contemplates the in-charge
Police Station. Under the provisions of Sections 9, 12, 13, 14 of the
KL Act, ACB has no role and it is only the officers working in
Lokayukta can investigate. He further contended that as on today,
the Lokayukta has 747 Police Officers to investigate and work under
the KL Act and on the other hand only 447 Police Officers are
working in ACB.
147. Learned Advocate General further pointed out that with
regard to Clause-5 of the Government Order dated 14.3.2016, the
Chief Secretary, Government of Karnataka has filed the affidavit
before this Court on 28.3.2021 stating that a notification shall be
issued by the State Government with the following modifications to
the Government Order dated 14.3.2016:
a) Clause 5 of the order dated 14.03.2016 shall be
deleted.
b) The ADGP of the ACB will have security of tenure
for a minimum period of two years. He will not be
transferred by the government before the
completion of his tenure of two years unless he is:
i) convicted by a court of law in a criminal
case or where charges have been framed
against him by a court in a case involving
corruption or offences which amounts to
moral turpitude; or
ii) incapacitation by physical or mental illness
or otherwise becoming unable to discharge
his functions as ADGP; or
iii) appointed to any other post with his
consent; or
iv) imposed punishment of dismissal, removal
or compulsory retirement from service or of
reduction to a lower post, awarded under
the provisions of the All India Services
(Discipline and Appeal) Rules, 1969 or any
other relevant rule; or
v) under suspension from service; or
vi) When a prima facie case of misconduct or
gross negligence is established after a
preliminary enquiry.
148. Though an affidavit filed, learned Advocate General
fairly submits that no such modification notification has been issued
as on today.
149. Learned Advocate General further contended that the
Hon'ble Supreme Court in the case of C. Rangaswamaiah31
at paragraph-6 observed that even after deputation, there could be
a "dual" role on the part of the Police Officers in their functions,
namely, functions under the Lokayukta and functions in discharge
of the duties entrusted to them by the State of Karnataka, under
the PC Act. Further, the notification issued under Section 17 of the
PC Act designating all Inspectors on deputation in the Lokayukta as
officers competent for purposes of Section 17 of the PC Act and the
notification issued under Section 2(s) of the Code of Criminal
procedure designating all offices of the Lokayukta in the State as
Police stations, indicated that these Police officers though on
deputation, were entrusted with these powers of investigation, by
virtue of statutory powers.
Supra at Footnote No.1
150. Learned Advocate General further contended that by
earlier notifications, in exercise of the powers under the provisions
of Section 17 of the PC Act and Section 2(s) of the Code of Criminal
Procedure, extra power was assigned to Lokayukta and after came
to know that there is extra burden, the same has been withdrawn.
Once the State has power to grant, it has power to withdraw also,
in view of the provisions of Section 21 of the General Clauses Act.
151. Learned Advocate General contended that the
petitioners are under wrong notion that by creating ACB, the
powers entrusted to Lokayukta has been withdrawn. The powers of
the Lokayukta under the provisions of KL Act have not been
disturbed. The ACB is working under the provisions of the PC Act
as a separate Wing or authority and the same is nothing to do with
the institution of Lokayukta, which is working under the provisions
of the KL Act and no powers of Lokayukta have been diluted as
contended by the learned counsel for the petitioners. Learned
Advocate General contended that the provisions of KL Act and the
provisions of PC Act are distinct.
152. Learned Advocate General also contended that the ACB
is a separate wing under the Karnataka Police Act to discharge the
work assigned to it. The executive Government Order dated
14.03.2016 is a policy of the State Government and cannot be
interfered with by this Court while exercising writ jurisdiction under
Article 226 of the Constitution of India. The provisions of Section 4
of the Karnataka Police Act, 1963 contemplates that, the
superintendence of the Police Force throughout the State vests in
and is exercisable by the Government and any control, direction
or supervision exercisable by any officer over any member of
the Police Force shall be exercisable subject to such
superintendence(Government).
153. Learned Advocate General further contended that Entry-
2 of List II to the 7th Schedule of the Constitution of India
contemplates Police (including railway and village police) subject to
the provisions of entry 2A of List I. It is brought to the notice of
the Court that there are 16 States in the country where both ACB
and Lokayuktha are in existence.
Provisions of PC Act 1988-
investigation by
Sl. Jurisdiction of
State (a) Name of Institution Lokayukta
No. Lokayukta
(b) Head of the Institution
(c) Administrative control
(a) Anti Corruption Bureau Karnataka
1 Karnataka (b) ADGP In existence Lokayukta Act,
(c) DPAR 1984
Tamil Nadu
(a) Directorate of vigilance
Lokayukta and
and anti corruption (DVAC)
2 Tamil Nadu In existence deputy
(b) Vigilance Commissioner
Lokayukta Act ,
(c) DPAR
(a) Maharashtra State Anti
Maharashtra
Corruption & Prohibilition
Lokayukta &
3 Maharashtra intelligence Bureau In existence
Upalokayukta
(b) General Director
Act,1971
(c) Home Department
(a) Anti-Corruption Bureau
(b) DGP
4 Telangana In existence Lokayukta Act
(C) General administration
Department
(a) Vigilance Bureau, Punjab
5 Punjab (b) ADGP/Chief Director In existence Lokayukta Act
(C) Government
(a) Vigilance Directorate
(b) DG & IGP, Director of Odisha
6 Odisha Vigilance In existence Lokayukta Act
(C) General Administrative 2015
Department of Govt.
(a) Anti Corruption Bureau
7 Rajasthan (b) Director General In existence Lokayukta Act
(c) Government
(a) Anti Corruption Bureau
Jharkhand
(b) Director General
8 Jharkhand In existence Lokayukta Act
(c) Government vigilance
Department
(a) Vigilance and Anti-
Corruption Bureau.
(b) ADGP/DGP/Director of Not In
9 Kerala
Vigilance existence
(C) Reporting to Ministry of
Vigilance and Home
(a) Anti Corruption Bureau
(b) ADGP Gujarath
10 Gujarath In existence
(c) Home and Civil Supplies Lokayukta Act
Department
(a) Directorate of Vigilance
Goa Lokayukta
11 Goa (b) Director In existence
Act -2011
(c) Government
(a) Vigilance and Anti Assam
Corruption Lokayukta Act
12 Assam In existence
(b) ADGP & Upalokayukta
(c) Government Act - 1985
(a) State Vigilance and Anti Himachal
Himachal Corruption Bureau Pradesh
13 In existence
Pradesh (b) ADGP Lokayukta Act -
(c) Government 2014
(a) Anti Corruption
Uttar Organisation Uttar Pradesh
14 In existence
Pradesh (b) ADGP Lokayukta Act
(c) Government
(a) State Vigilance Commission Nagaland
15 Nagaland (b) Vigilance Commissioner In existence Lokayukta Act -
(c) Government 2017
Sikkim
(a) Sikkim Vigilance Police
Lokayukta And
Force
16 Sikkim In existence Deputy
(b) ADGP
Lokayukta Act-
(c) Government
154. Learned Advocate General further contended that the
State Government issued the Government Order dated 14.3.2016
constituting ACB, in exercise of powers under Article 162 of the
Constitution of India and such policy decision cannot be interfered
by this Court. He would further contend that there are two types
of writ petitions before this Court. One filed in the public interest
and the other in personal interest and the petitioners have not
made out any case to interfere with the executive order passed by
the State Government and sought to dismiss the writ petitions.
155. In support of his contentions, learned Advocate General
relied upon the following judgments:
1. C. Rangaswamaiah -vs- Karnataka Lokayukta32
(paragraphs 7,8,15, 23, 24 and 29)
2. Vineet Narain and others .vs. Union of India33 and
another (paragraphs 40, 41 and 42)
3. Municipal Council, Neemuch v. Mahadeo Real
Estate34, (paragraph 13).
4. State of Karnataka and others v. Kempaiah,35
(paragraph 6 and 8).
XIV. Points for determination
156. In view of the aforesaid rival contentions urged by the
learned counsel for the parties, the points that would arise for our
consideration in these writ petitions are:
1. Whether the State Government is justified in
constituting Anti Corruption Bureau by an
executive Government Order dated 14.3.2016,
in exercise of the powers under Article 162 of
AIR 1998 SC 2496
(1998)1SCC 226
(2019)10 SCC 738
(1998)6 SCC 103
the Constitution of India, when the Karnataka
Lokayukta Act, 1984 has occupied the field to
eradicate the corruption in the State of
Karnataka, in the facts and circumstances of the
present case?
2. Whether the State Government is justified in
issuing the impugned notifications dated
19.3.2016 superseding the earlier notifications
dated 6.2.1991, 8.5.2002 and 5.12.2002 that
authorized the Lokayukta Police with powers to
investigate under the provisions of Prevention of
Corruption Act,1988 and had declared the
offices of Police Wing of the Karnataka
Lokayukta as Police Stations under the
provisions of Section 2(s) of the Code of
Criminal Procedure ?
157. We have given our anxious consideration to the
arguments advanced by the learned counsel for the parties and
perused all the papers including the original records carefully.
XV. Consideration
158. Before proceeding to the merits of the case, it is
relevant to refer to the statement of objects and reasons of the
Karnataka Lokayukta Act, 1984 and certain important sections of
the said Act.
159. The Legislature - State Government on the basis of the
recommendations of the Administrative Reforms Commission
enacted the KL Act w.e.f 15th January 1986 for the purpose of
improving the standards of public administration, by looking into
complaints against administrative actions, including cases of
corruption, favouritism and official indiscipline in the administration
machinery and abolished the Vigilance Commission, but all
inquiries, investigations and other disciplinary proceedings pending
before the Vigilance Commission transferred to Lokayukta.
160. As per sub-section (2) of Section 2 of the KL Act,
'Allegation' in relation to a public servant means 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, favoritism,
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;
161. As per sub-section (5) of Section 2 of the KL Act,
'corruption' includes anything made punishable under Chapter IX of
the Indian Penal Code or under the PC Act.
162. Sub-section (10) of Section 2 of the KL Act defines
"Maladministration", which means action taken or purporting to
have been taken in the exercise of administrative functions in any
case where,--
(a) such action or the administrative
procedure or practice governing such
action is unreasonable, unjust,
oppressive or improperly discriminatory;
or
(b) there has been wilful negligence or
undue delay in taking such action or the
administrative procedure or practice
governing such action involves undue
delay;
163. As per sub-section (12) of Section 2 of the KL Act,
'public servant' means a person who is or was at any time -
(a) the Chief Minister;
(b) a Minister;
(c) a member of the State Legislature;
(d) a Government Servant;
(e) the Chairman and the Vice-Chairman (by whatever
name called) or a member of a local authority in
the State of Karnataka or a statutory body or
corporation established by or under any law of the
State Legislature, including a co-operative
society, or a Government Company within the
meaning of Section 617 of the Companies Act,
1956 and such other corporations or boards as
the State government may, having regard to its
financial interest in such corporations or boards,
by notification, from time to time, specify;
(f) member of a Committee or Board, statutory or
non-statutory, constituted by the Government;
and
(g) a person in the service or pay of,--
(i) a local authority in the State of Karnataka;
(ii) a statutory body or a corporation (not being
a local authority) established by or under a
State or Central Act, owned or controlled by
the State Government and any other board
or corporation as the State Government
may having regard to its financial interest
therein, by notification from time to time,
specify;
(iii) a company registered under the Companies
Act, 1956, in which not less than fifty one
per cent of the paid up share capital is held
by the State Government, or any company
which is a subsidiary of such company;
(iv) a society registered or deemed to have
been registered under the Karnataka
Societies Registration Act, 1960, which is
subject to the control of the State
Government and which is notified in this
behalf in the official Gazette;
(v) a co-operative society;
(vi) a university;
Explanation.- In this clause, "Co-operative
Society" means a co-operative society registered
or deemed to have been registered under the
Karnataka Co-operative Societies Act, 1959, and
"university" means a university established or
deemed to be established by or under any law of
the State Legislature.
164. As per Sub-section (13) of Section 2 of the KL Act,
"Secretary" means the Chief Secretary, an Additional Chief
Secretary, a Principal Secretary, a Secretary, or a Secretary-II to
the Government of Karnataka and includes a Special Secretary, an
Additional Secretary and a Joint Secretary.
165. The provisions of Section 3 of the KL Act contemplates
appointment of Lokayukta and Upa-Lokayukta, which reads as
under:
(1) For the purpose of conducting investigations and
enquiries in accordance with the provisions of this
Act, the Governor shall appoint a person to be
known as the Lokayukta and one or more persons
to be known as the Upalokayukta or
Upalokayuktas.
(2) (a) A person to be appointed as the Lokayukta
shall be a person who has held the office of a
Judge of the Supreme Court or that of the Chief
Justice of a High Court or a person who has held
the office of a Judge of a High Court for not less
than ten years and shall be appointed on the
advice tendered by the Chief Minister in
consultation with the Chief Justice of the High
Court of Karnataka, the Chairman, Karnataka
Legislative Council, the Speaker, Karnataka
Legislative Assembly, the Leader of the Opposition
in the Karnataka Legislative Council and the
Leader of the Opposition in the Karnataka
Legislative Assembly.
(b) A person to be appointed as an Upalokayukta
shall be a person who has held the office of a
judge of a High Court for not less than five years
and shall be appointed on the advice tendered by
the Chief Minister in consultation with the Chief
Justice of the High Court of Karnataka, the
Chairman, Karnataka Legislative Council, the
Speaker, Karnataka Legislative Assembly, the
Leader of the Opposition in the Karnataka
Legislative Council and the Leader of the
Opposition in the Karnataka Legislative Assembly.
(3) A person appointed as the Lokayukta or an
Upalokayukta shall, before entering upon his
office, make and subscribe, before the Governor,
or some person appointed in that behalf by him,
an oath or affirmation in the form set out for the
purpose in the First Schedule.
166. A careful reading of the above provisions make it clear
that a person to be appointed as the Lokayukta shall be a person
who has held the office of a Judge of the Supreme Court or that of
the Chief Justice of a High Court or a person who has held the office
of a Judge of a High Court for not less than ten years and shall be
appointed on the advice tendered by the Chief Minister in
consultation with the -
a) Chief Justice of the High Court of Karnataka,
b) the Chairman, Karnataka Legislative Council,
c) the Speaker, Karnataka Legislative Assembly,
d) the Leader of the Opposition in the Karnataka
Legislative Council and
e) the Leader of the Opposition in the Karnataka
Legislative Assembly.
167. The above provisions also make it clear that a person to
be appointed as an Upa-Lokayukta shall be a person who has held
the office of a judge of a High Court for not less than five years
and shall be appointed on the advice tendered by the Chief Minister
in consultation with -
i) the Chief Justice of the High Court of Karnataka,
ii) the Chairman, Karnataka Legislative Council,
iii) the Speaker, Karnataka Legislative Assembly,
iv) the Leader of the Opposition in the Karnataka
Legislative Council; and
v) the Leader of the Opposition in the Karnataka
Legislative Assembly.
168. In view of the above, it is clear that while
appointment of either Lokayukta or Upa-Lokayukta, the procedure
as contemplated under the provisions of Sections 3(2)(a) and
3(2)(b) of the KL Act has been followed meticulously from the date
of enactment of the KL Act i.e. from 15.1.1986 till today.
169. The provisions of Section 4 of the KL Act contemplates
that the Lokayukta or Upalokayukta shall not be a Member of the
Parliament or be a Member of the Legislature of any State and shall
not hold any office of trust or profit (other than his office as
Lokayukta or Upalokayukta) or be connected with any political party
or carry on any business or practice any profession and accordingly,
before he enters upon his office, a person appointed as the
Lokayukta or an Upalokayukta shall,--
(a) if he is a Member of the Parliament or of the
Legislature of any State, resign such
membership; or
(b) if he holds any office of trust or profit,
resign from such office; or
(c) if he is connected with any political party,
sever his connection with it; or
(d) if he is carrying on any business, sever his
connection (short of divesting himself of
ownership) with the conduct and
management of such business; or
(e) if he is practising any profession, suspend
practice of such profession.
170. Sub-section (1) of Section - 5 of the KL Act,
contemplates that a person appointed as the Lokayukta or
Upaloakayukta shall hold office for a term of five years from the
date on which he enters upon his office, provided that -
(a) the Lokayukta or an Upalokayukta may, by
writing under his hand addressed to the
Governor, resign his office;
(b) the Lokayukta or an Upalokayukta may be
removed from office in the manner provided
in Section 6.
171. Sub-section (2) of Section 5 of the KL Act contemplates
that on ceasing to hold office, the Lokayukta or an Upalokayukta
shall be ineligible for further employment to any office of profit
under the Government of Karnataka or in any authority,
corporation, company, society or university referred to in item (g)
of clause (12) of Section 2 of the KL Act.
172. The provisions of Section 9 of the KL Act deals with
provisions relating to complaints and investigations. Section 10 of
the KL Act contemplates issue of search warrant; Section 12 of the
KL Act contemplates reports of Lokayukta; Section 14 of the KL Act
contemplates initiation of prosecution; and Section 15 of the KL Act
relates to the staff of Lokayukta. Sub-section (3) of Section 15 of
the KL Act contemplates that without prejudice to the provisions of
sub-section (1), the Lokayukta or an Upa-Lokayukta may for the
purpose of conducting investigations under this Act utilise the
services of,--
(a) any officer or investigating agency of the State
Government; or
(aa) any officer or investigating agency of the
Central Government with the prior concurrence of
the Central Government and State Government;
(b) any person or any other agency.
173. By careful perusal of the provisions of the KL Act stated
supra and other provisions, it clearly depict that the scheme
ensures preservation of the right, interest and dignity of the
Lokayukta or Upalokayukta and is commensurate with the dignity of
all the institutions and functionaries involved in the process. It also
excludes the needless meddling in the process by busy bodies
confining the participation in it, to the Members of the Legislative
Assembly or Council, Speaker/Chairman of the Legislature and the
Chief Justice to the High Court of Karnataka, the highest judicial
functionary in the State apart from the Lokayukta. If the
allegations are permitted to be made only in the prescribed
manner, justify an inquiry into the conduct of the Upalokayukta.
As the Office in question is a public office as public is vitally
interested, the process prescribed in the Act is to be complied with
expeditiously, which is also both in public interest as well as in the
interest of the incumbent of the office.
174. During the year 2011, the Lokayukta while exercising
powers under the provisions of KL Act and PC Act has made the
Hon'ble Chief Minister and the Hon'ble Minister, who were in power
at the relevant point of time to resign and has send them to prison
by creating history in the State of Karnataka and has become a
model to the entire country. It is also not in dispute that at one
point of time, since the son of the Lokayukta was involved in
corruption charges, the Lokayukta was made to resign and that has
become possible, in view of the provisions of the KL Act and PC
Act. Such was the independence of the Lokayukta and its effective
functioning in the matters of utmost importance from the date of
the inception of the Lokayukta in the year 1986 till 14.3.2016, the
date of passing the impugned executive order under Article 162 of
the Constitution of India i.e., for more than three decades.
175. When the Karnataka Lokayukta Act was assented by the
Hon'ble president of India, that would prevail and the field occupied
cannot be eroded and the Government cannot trench upon the
occupied field. It is nothing, but transgression by an executive
administrative order to usurp the powers of Lokayukta. The very
Constitution of ACB by the Government is to shield the Corrupt
politicians, Ministers, and the officers from the watchful eyes of the
Lokayukta and that Government is weakening the institution of
Lokayukta to protect these persons from prosecution, inter alia
under the provisions of the P.C. Act.
176. As already stated supra, the KL Act was enacted for the
purpose of improving the standards of public administration, by
looking into complaints against administrative actions, including
cases of corruption, favouritism and official indiscipline in
administration machinery. In order to ensure effective enforcement
of the PC Act, in exercise of the powers conferred by the first
proviso to Section 17 of the PC Act, the State Government issued
the notification dated 6.2.1991 authorizing all the Inspectors of
Police, Office of the Karnataka Lokayukta for the purpose of the
investigation.
177. The provisions of Section 17 of the Prevention of
Corruption Act reads as under:
17. Persons authorised to investigate.--
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), no police officer
below the rank,--
(a) in the case of the Delhi Special Police
Establishment, of an Inspector of Police;
(b) in the metropolitan areas of Bombay,
Calcutta, Madras and Ahmedabad and in any
other metropolitan area notified as such under
sub-section (1) of Section 8 of the Code of
Criminal Procedure, 1973 (2 of 1974), of an
Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of
Police or a police officer of equivalent rank,
shall investigate any offence punishable under this Act
without the order of a Metropolitan Magistrate or a
Magistrate of the first class, as the case may be, or
make any arrest therefor without a warrant:
Provided that if a police officer not below the rank of an
Inspector of Police is authorised by the State
Government in this behalf by general or special order,
he may also investigate any such offence without the
order of a Metropolitan Magistrate or a Magistrate of the
first class, as the case may be, or make arrest therefor
without a warrant:
Provided further that an offence referred to in clause
(b) of sub-section (1) of Section 13 shall not be
investigated without the order of a police officer not
below the rank of a Superintendent of Police.
178. It is also not in dispute that the state Government vide
notifications dated 8.5.2002 and 5.12.2002 declared the offices of
the Police Inspectors of Karnataka Lokayukta as Police Stations
under the provisions of Clause (s) of Section 2 of the Code of
Criminal procedure.
179. Sub-Clause (s) of Section -2 of the Code of Criminal
Procedure reads as under:
2(s) "police station" means any post or place declared
generally or specially by the State Government, to be a
police station, and includes any local area specified by
the State Government in this behalf;
180. When things stood thus, the Director General and
Inspector General of Police ('DG & IG' for short) by a letter dated
3.2.2016 addressed to the State Government, has proposed the
creation of an Anti Corruption Bureau in the State, due to the
necessity of modifications required so as to enforce PC Act, keeping
in perspective the judgment of the Hon'ble Supreme Court in the
case of C. Rangaswamaiah36. The DG & IG has informed that the
duties of the officers of the Lokayukta Police Wing can be classified
into two categories viz.,
1) As per Section 15(1) KL Act, the Police Wing is to
primarily assist the Lokayukta in enforcing the KL Act.
2) The Government of Karnataka, through its many orders,
has declared the offices of the Police Inspectors of
Lokayukta as Police Stations; the Police officers can
investigate the cases registered under the PC Act.
Since such cases are out of jurisdiction of Lokayukta,
the Government has issued several orders regarding the
same.
Thereby, the State Government proceeded to pass the impugned
executive order dated 14.03.2016 under the provisions of Article
162 of the Constitution of India.
181. A careful perusal of the impugned Government Order
dated 14.3.2016 clearly depicts that the State Government mainly
Supra at Footnote No.1
based on the recommendations of the DG & IG letter dated
3.2.2016, has constituted ACB on the following grounds:
a) In order to avoid dual duties by the Lokayukta
Police.
b) There are no approved systems to supervise the
cases arising from investigation of the Police Wing
Officers acting under the provisions of P.C. Act.
c) The DG & IG recommends to withdraw the
previous Government notifications dated 6.2.1991,
8.5.2002 and 5.12.2002 that authorised the
Lokayukta Police with powers to investigate and
had declared the offices of Police Inspectors of
Lokayukta as Police Stations.
d) The DG & IG has proposed to limit the current
Police wing to assist only in the effective
enforcement of the KL Act.
e) The DG & IG requested to form ACB and to provide
them with the powers to investigate in an
independent manner so as to independently
investigate the cases referred to by the Head of
the Police and the Government.
f) The independent nature of power of the Police
Wing of the KL Act as held by the Hon'ble Supreme
Court in the case of C. Rangaswamaiah37.
g) In view of the interim order dated 8.2.2016 made
in Criminal Petition No.5378/2014 and connected
maters
h) To reduce the burden of the Lokayukta Police.
182. On meticulous perusal of the aforesaid reasons, it is not
forthcoming as to why the DG & IG recommended to withdraw the
notifications dated 6.2.1991 8.5.2002 and 5.12.2002 that had given
the Lokayukta Police, the powers to investigate under the
provisions of PC Act and had declared the offices of Police
Inspectors of Lokayukta as Police Stations under the provisions of
Section 2(s) of the Code of Criminal Procedure. It is also stated in
the impugned Government Order that this Court in Criminal Petition
No.5378/2014 and connected matters has further directed the
State Government to establish vigilance cells in the same lines as
those established by the Central Government. The impugned
Government Order merely depicts that the Government has realized
Supra at Foot Note No.1
the necessity of a strong and effective vigilance system, in addition
to Karnataka Lokayukta to improve the quality of administration
and created an ACB, thereby indirectly diluted the independent
effective functioning of the Karnataka Lokayukta, which is a matter
of utmost importance. "If really the State Government wanted to
maintain the independence of the Lokayukta", it could have
strengthened the hands of Lokayukta by giving more independent
power or allowed the ACB to work under the Lokayukta to eradicate
the corruption, favouritism and official indiscipline in administrative
machinery in the entire state, in the interest of Government and in
the interest of general public at large. Though the KL Act
prescribes to take action against any public servant as
contemplated under Section 2(12) of the KL Act, it is not
forthcoming in the present impugned executive order as to who is
the authority to take action, in case DG & IG involved in corruption,
favouritism and official indiscipline in administration machinery. So
also in case the Hon'ble Chief Minister, a Minister, a Member of the
State Legislature are involved or in case 'Secretary' i.e., Chief
Secretary, an Addl. Chief Secretary etc., are involved, there is no
power or authority in the impugned executive order to take action
against such persons.
183. On careful perusal of the impugned executive
Government Order, it also clearly depicts that the "Hon'ble Chief
Minister is the supreme" and absolutely there is no independent
application of mind by the State Government before passing the
impugned executive order and the same is based only on the
recommendation made by the DG & IG, thereby the executive order
passed by the State Government cannot be sustained.
184. The executive order passed by the State Government
constituting ACB is parallel to the institution of Karnataka
Lokayukta and absolutely no reasons are assigned except stating
that Government has realized the necessity of a strong and
effective vigilance system in addition to Lokayukta. It is not the
case of the State Government that the Karnataka Lokayukta Police
Wing, which is working under the control of the Lokayukta under
the provisions of Section 15(3) of the KL Act not effectively
implementing the provisions of the PC Act nor it is the case of the
Government that any general public lodged complaints against the
functions of the Lokayukta or its Police Wing. It is also not the
case of the State Government in the impugned executive order that
the Lokayukta or an Upa-Lokayukta expressed any inability to
discharge their functions under the provisions of PC Act or
expressed that it is an additional burden. In the absence of the
same, it is the State Government which has passed the impugned
executive order, in exercise of the powers under Article 162 of the
Constitution of India mainly based on the recommendation made by
the DG & IG, without independent application of mind. Thereby,
the impugned order erroneous and contrary to the provisions of
K.L. Act.
185. The State Government while passing the impugned
executive orders, has ignored the fact that Lokayukta and Upa-
Lokayukta are appointed under the provisions of Section 3 of the KL
Act. That is, their appointment is by a consultation process with
all the stake holders i.e, they are appointed on the advice tendered
by the Chief Minister in consultation with the -
- Chief Justice of the High Court of Karnataka;
- the Chairman, Karnataka Legislative Council;
- the Speaker, Karnataka Legislative Assembly;
- the Leader of the Opposition in the Karnataka Legislative
Council; and
- the Leader of the Opposition in the Karnataka Legislative
Assembly.
186. It is not in dispute that when the KL Act was enacted
in the year 1984, on the recommendation made by the
Administrative Reforms Commission for the purpose of improving
the standards of public administration, by looking into the
complaints against administrative actions, including the cases of
corruption, favouritsm and official indiscipline in administration
machinery, there was no necessity for the State Government to
constitute ACB parallel to the institution of Lokayukta, that too
when a person to be appointed as the Lokayukta shall be a person
who has held the office of a Judge of the Supreme Court or that of
the Chief Justice of a High Court or a person who has held the office
of a Judge of a High Court for not less than ten years and a person
to be appointed as an Upa-Lokayukta shall be a person who has
held the office of a Judge of a High Court for not less than five
years.
187. It is not the case of the State Government that ACB is a
powerful independent body headed by any former Supreme Court
Judge, in order to curb corruption, favouritism and official
indiscipline in administration machinery, in addition to Lokayukta.
If really the Government intends to curb corruption, favouritism and
official indiscipline in administration machinery, the ACB should
have been allowed to work under the control of Lokayukta as
contemplated under the provisions of Section 15(3) of the KL Act
instead of Hon'ble Chief Minister as stated in the executive order.
Therefore, there is more scope in the executive order for the
political influence and the Hon'ble Chief Minister in power can
misuse ACB to control his opponents within his party or the
opposite parties. The conditions of the executive Government Order
clearly depict that there is a possibility to favour the party in power
or the party men.
188. It is most unfortunate that even after lapse of 75 years
of Independence, no political party in the country is willing or dare
enough to allow independent authority like the Lokayukta to
discharge its duties in a transparent manner in the interest of the
general public at large. Very strangely, a separate Anti Corruption
Bureau is created with the following designations:
Sl. Designation of posts No. of posts
No.
6 Head Constables/Police Constables 200
(HC/PC)
189. In order to supervise the Vigilance System in the State,
a Vigilance Advisory Board has been created consisting of -
1 Chief Secretary President of
Board
2 Addl. Chief Secretary, Internal Member
Administration
3 Principal Secretary, Department of Member
Finance
3 Principal Secretary, DPAR Member
4 D.G. & I.G.P. (who recommended to Member
constitute ACB for the Government)
5 Two eminent personalities experienced Member
and experts in the field of Administration
and Public issues.
6 Secretary, Vigilance Wing of DPAR Member
Secretary
190. The ACB and the Vigilance Advisory Board are working
under the direct administrative control of the State Government
and they cannot act independently as the "Final authority is the
Hon'ble Chief Minister". In fact the executive order dated
14.3.2016 clearly depicts that in case the Vigilance Advisory Board
based on sufficient prima facie reasons, decides to refer the
investigation to be conducted by an outside agency/organization,
such matter after approval of the Chief Minister may be handed
over to the Criminal Investigation Department (C.I.D). Therefore,
one cannot expect the Vigilance Advisory Board functions
independently, since even to refer the investigation to be conducted
by an outside agency/organization like C.I.D., approval of the Chief
Minister must be obtained.
191. Further, the State Government while withdrawing the
statutory notifications dated 6.2.1991, 8.5.2002 and 5.12.2002 that
had given the Lokayukta Police the powers to investigate under the
P.C. Act and had declared the offices of Police Inspectors of
Karnataka Lokayukta as Police Stations under the provisions of
Section 2(s) of the Code of Criminal Procedure, had not consulted
the Lokayukta. Without consultation of Lokayukta, statutory
notifications cannot be withdrawn by the executive order of the
State Government. Absolutely no independent reasons are assigned
by the State Government in the executive order to constitute ACB
parallel to the Lokayukta and Upa-Lokayukta, who are appointed
under the provisions of the KL Act. The executive order dated
14.3.2016 depicts that the State Government after examining the
recommendation made by the DG & IG, keeping in perspective the
judgment of the Hon'ble Supreme Court in the case of C.
Rangaswamaiah, has created the ACB and classified the duties of
the officers of the Karnataka Police Wing into two categories. The
same is an erroneous understanding of the dictum of the Hon'ble
Supreme Court.
192. In the case of C. Rangaswamaiah38, the Hon'ble
Supreme Court observed that "even after deputation, there could
be a "dual" role on the part of the police officers in their functions,
namely, functions under the Lokayukta and functions in discharge
of the duties entrusted to them by the State of Karnataka under the
Supra at Foot No.1
Prevention of Corruption Act, 1988". The Hon'ble Supreme Court
further observed that "though the Director General of Police newly
attached w.e.f 21.11.1992 to the Bureau of Investigation of the
Lokayukta by way of an administrative order of the Government
was to be in control and supervision of the police staff in the
Lokayukta and though the said post of Director General of Police
was not - by appropriate amendment of the recruitment rules of the
Lokayukta staff - included in the cadre of posts in the Police Wing of
the Lokayukta - still it had to be taken that the said Director
General of Police was under the administrative and disciplinary
control of the Lokayukta". The Hon'ble Supreme Court also
observed that "dual functions could be performed by these officers
in relation to two Acts, namely Prevention of Corruption Act and the
Lokayukta Act and such a situation of dual control could not be said
to be alien to criminal jurisprudence concerning investigation of
crimes. In other words, these officers who were of the requisite
rank as per Section 17 of the Prevention of Corruption Act, 1988
could not be said to be incompetent to investigate into offences
assigned to them under that Act by the competent authority by
virtue of statutory powers under Section 17 thereof or to that
extent not excluded by the Lokayukta. The Division Bench,
therefore, held that the further investigation against the petitioners
could be continued through the Police Officers on deputation with
the Lokayukta". The Hon'ble Supreme Court further observed that
"the entrustment being under statutory powers of the State
traceable to Section 17 of the Prevention of Corruption Act, 1988
the same cannot be said to be outside the jurisdiction of the State
Government. May be, if it is done without consulting the Lokayukta
and obtaining its consent, it can only be treated as an issue
between the State and the Lokayukta. Such entrustment of duties
has statutory backing, and obviously also the tacit approval of the
Lokayukta." The Hon'ble Supreme Court further observed that
"having regard to the need to preserve its independence and
effective functioning to take action under Section 15(4) read with
Section 15(2) and direct that these officers on deputation in its
Police Wing will not take up any such work entrusted to them by the
State Government". The Hon'ble Supreme Court further observed
that "if instead of deputation of police officers from the
Government, any other solution can be found, that is a matter to be
decided amicably between the State Government and the
Lokayukta, keeping in view the independence of the Lokayukta and
its effective functioning as matters of utmost importance".
193. In view of the above, the judgment in the case of C.
Rangaswamaiah decided on 21.7.1998 will no way assist the
State Government to constitute separate ACB for the first time on
14.3.2016, after lapse of nearly 18 years of the said judgment and
the State Government erroneously interpreted the judgment of the
Hon'ble Supreme Court in the impugned order. On that ground
also, the impugned executive order cannot be sustained.
194. It is relevant to consider the provisions of Article 162 of
the constitution of India, on which basis the impugned executive
order came to be issued, which reads as under:
"162. Extent of executive power of State.--
Subject to the provisions of this Constitution, the
executive power of a State shall extend to the matters
with respect to which the Legislature of the State has
power to make laws:
Provided that in any matter with respect to which
the Legislature of a State and Parliament have power to
make laws, the executive power of the State shall be
subject to, and limited by, the executive power
expressly conferred by this Constitution or by any law
made by Parliament upon the Union or authorities
thereof."
195. A plain reading of Article 162 of the Constitution of
India makes it clear that subject to the provisions of the
Constitution, the executive power of a State shall extend to the
matters with respect to which the Legislature of the State has
power to make laws, provided that in any matter with respect to
which the Legislature of a State and Parliament have power to
make laws, the executive power of the State shall be subject to,
and limited by, the executive power expressly conferred by the
Constitution or by any law made by Parliament upon the Union or
authorities thereof. When statutory powers of the Lokayukta under
the KL Act and the Rules thereof govern the field for eradication of
corruption, the executive order passed by the State Government is
contrary to the provisions of the KL Act and creation of ACB parallel
to the institution of Lokayukta is bad in law. Executive instructions
can only fill the gaps not covered by rules and cannot be in
derogation of statutory rules. The executive power of the State
can be exercised only on two occasions -
a) if any law or Act have been made by the State
Legislature conferring any functions or any other
authority, in that case the Governor is not
empowered to make any order in regard to that
matter in exercise of the executive power nor can
the Governor exercise such power in regard to that
matter through officers subordinate to him.
b) vesting the Governor with the executive power of
the State Government does not create any
embargo for the Legislature of the State from
making any and or enacting any law conferring
functions on any authority subordinate to the
Governor.
196. In the present case, admittedly the KL Act has been in
force from 15th January 1986 for the purpose of improving the
standards of public administration, by looking into complaints
against administrative actions, including cases of corruption,
favouritism and official indiscipline in administration machinery,
thereby the State Government has exceeded in power to issue
executive order by constituting ACB parallel to the institution of
Lokayukta. The impugned executive order issued by the State
Government is to defunct the Lokayukta and it has virtually
defeated the very purpose for which the institution of Lokayukta
has been constituted The impugned executive order only created a
parallel body to the institution of Lokayukta to achieve the same
purpose with lesser intent. Therefore, the Government Order
constituting the ACB is unsustainable, suffers from malafides and
legal infirmities. The impugned executive order passed by the
State Government has indirectly diluted the powers of the
Lokayukta and the ACB cannot function either as a parallel body or
an alternate body or substitute the Lokayukta. Therefore, the
Government Order constituting the ACB for a function already being
conferred on the Lokayukta, is impermissible in law.
197. It is high time for the State Government to take
necessary steps to ensure to reform the Lokayukta and to amend
the provisions of the K.L. Act and abolish the ACB and the
recommendation of the Lokayukta or Upa-Lokayukta should be
binding on the Government. It is for the Government to take
proper steps to reform at the stage of the recruitment itself While
appointing police force in the Karnataka Police Department.
198. After the enactment of KL Act, Lokayukta and Upa-
Lokayukta, in exercise of their powers used to register the criminal
cases against the erring public servants prior to passing of the
impugned executive order. In fact, the term, 'public servant' is
defined under the provisions of Section 2(12) of the KL Act.
199. The statement showing the statistics relating to criminal
cases conducted against MLAs, MPs, Ministers, BBMP Corporators
etc., by the Lokayukta is as under:
Sl. Name and their position Status of the case
No. Sriyuths Under Final PSO B/C Charged Other Cr.No.
Investigat Report awaited report Sheeted disposa
ion submitted submitted l
1 Katta Subramanya Naidu, Yes 57/2010
and others
2 B.S. Yediyurappa, Yes 33/2011
3 B.S. Yediyurappa, Yes 48/2011
and others
4 R. Ashok, Yes 51/2011
And another
5 Murugesh R. Nirani, Yes 53/2011
and others
6 S. Muniraju, Yes 55/2011
and others
7 B.S. Yediyurappa and Yes 60/2011
others
8 S.R. Vishwanath and others Yes 66/2011
9 C.T. Ravi, former MLA Yes 70/2011
10 H.D. Kumaraswamy, Yes 02/2012
12 Krishnappa, former MLA Yes 06/2012
13 M.S. Somalingappa, Yes 19/2012
14 D.K. Shivakumar, Yes 26/2012
15 E. Krishnappa, Yes 34/2012
16 N. Dharamsingh, Yes 36/2012
17 M. Srinivasa, former Yes 37/2012
18 Murugesh R. Nirani, Yes 49/2012
19 H.D. Kumaraswamy, Yes 60/2012
20 V. Somanna, former Yes 63/2012
21 Roshan Baig, former Yes 66/2012
22 Gowramma, Yes 82/2012
23 H.D. Devegowda, Yes 84/2012
24 Smt. Awwai, Yes 87/2012
25 Aravind Limbavalli, Yes 89/2012
26 Baburao Chinchanasooru, Yes 92/2012
27 Somashekara Reddy, Yes 09/2013
28 B. Govindaraju, Yes 38/2013
29 Qumrul Islam, Yes 57/2014
30 R.V. Deshpande, Yes 11/2015
31 Munirathna, Yes 25/2015
32 B.S. Yediyurappa, Yes 27/2015
33 B.S. Yeidiyurappa, Yes 38/2015
34 B.S. Yeidiyurappa, Yes 39/2015
35 B.S. Yeidiyurappa, Yes 40/2015
36 B.S. Yeidiyurappa Yes 42/2015
37 B.S. Yeidiyurappa Yes 43/2015
38 B.S. Yeidiyurappa Yes 44/2015
39 B.S. Yeidiyurappa Yes 45/2015
40 B.S. Yeidiyurappa Yes 46/2015
41 B.S. Yeidiyurappa Yes 47/2015
42 B.S. Yeidiyurappa Yes 48/2015
43 B.S. Yeidiyurappa Yes 49/2015
44 B.S. Yeidiyurappa Yes 50/2015
45 B.S. Yeidiyurappa Yes 52/2015
46 B.S. Yeidiyurappa Yes 53/2015
47 B.S. Yeidiyurappa Yes 54/2015
48 B.S. Yeidiyurappa Yes 55/2015
49 B.S. Yeidiyurappa Yes 76/2015
50 Gali Janardhan Reddy Yes 79/2015
51 Veeranna 06/2012
Chandrashekaraiah
Charanthimath
52 Abhay Kumar Patil Case 14/2012
transferre
d to ACB
53 Sanjay B. Patil Yes 3/2014
54 B. Sriramulu Yes 09/2013
55 C.T. Ravi Yes 06/2014
56 N.Y. Gopalakrishna Yes 09/2013
57 Madal Virupakshappa Yes 28/2013
58 Renukacharya Yes 05/2015
59 Renukacharya Yes 06/2015
60 Nehuru C. Olekar Yes 12/2011
61 Manohar H. Tahasildar Yes 09/2013
62 Raghunath Vishwanath 02/2014
Deshpande
63 Varthur Prakash Yes 02/2015
64 Varthur Prakash Yes 03/2015
65 Papareddy Yes 01/2017
66 Suresh Gowda Yes 04/2015
67 Dr. M.R. Hulinaykar Yes 10/2015
200. The statement showing the statistics relating to criminal
cases conducted against IAS Officers by the Lokayukta is as under:
Sl. Name Status of the case
No. Under Final PSO B/C Charged Other Cr.No.
Investigation Report awaited report Sheeted disposal
submitted submitted
1 Neeraj Rajkumar Yes 26/1989
2 J. Alexander Yes 14/1990
3 B.S. Patil Yes 23/2019
4 Maheshwar Yes 52/1994
5 Ramamurthy Yes 47/1998
6 I.R. Perumal Yes 02/2000
7 N. Vijayabhaskar Yes 06/2002
8 I.S.N. Raju Yes 09/2004
9 Baburao Yes 14/2008
10 S. Lakshman Singh Yes 23/2008
11 I.D.S. Ashwath Yes 63/2011
12 Mohammad A Sadiq Yes 72/2011
13 M.V. Veerabhadraiah Yes 73/2011
14 Siddaiah Yes 74/2011
15 Siddaiah Yes 18/2012
Bharath Lal Meena
Subhi Harisingh
Veerabhadraiah
16 Shamla Iqbal Yes 20/2012
17 Shamla Iqbal Yes 25/2012
18 Syed Zameer Pasha Yes 53/2012
19 Veerabhadraiah Yes 57/2012
20 N.K. Ayappa Yes 80/2012
21 N.K. Ayappa Yes 85/2012
22 Bharath Lal Meena Yes 89/2012
23 Rajaneesh Goel Yes 04/2013
24 Ramesh Bindurao Yes 63/2013
Zalki
25 D.M. Vijayashankar Yes 23/2015
26 Kapil Mohan Yes 64/2015
27 Rajneesh Goel Yes 10/2012
28 N.S. Channappagowda Yes 11/1994
201. The statement showing the statistics relating to criminal
cases conducted against IPS officers by the Lokayukta is as under:
Sl. Name and their Status of the case
No. position Under Final PSO B/C Charge Other Cr.No.
Investigation Report awaited report d disposa
submitted submitted Sheeted l
1 Javadagi,, DIG Yes 16/2003
2 Srinivas Yer Yes 38/2007
3 M.C. Narayana gowda Yes 07/2009
4 Dr. Krishnamurthy Yes 95/2012
5 Srikantappa Yes 02/2018
6 Srikantappa Yes 03/2008
7 Chandrashekaraiah Yes 05/2006
8 Srikantappa 05/2008
202. After conducting enquiry, the Lokayukta/Upa-Lokayukta
send the report/recommendations to the Government as
contemplated under the provisions of Section 12(3) of the KL Act.
Statement showing the 12(3) reports sent to the Government in
respect of Ministers, MLAs. and MLCs., is as under:
12(3) SENT ON MINISTER
Case Number Respondent details Enquiry
Officer
Mahadev Prasad,
Minister of
Co-Operation ,
LOK/BCD/3756/2014 ARE-2
Vidhana Soudha,
Bangalore
Krishna Byregowda,
Agriculture Minister
LOK/BCD/3756/2014 ARE-2
Bangalore
12(3) SENT ON M.L.A
Case Number Respondent details Enquiry
Officer
Raju. K.,
M.L.A.
LOK/BD/143/2011 Ramanagar, ARE-2
Ramanagar District.
M.L.A.
Byadagi Constituency
LOK/BGM/2183/2014 ARE-2
Haveri Dist.
12(3) SENT ON M.L.C.
Case Number Respondent details Enquiry
Officer
Narayana Swamy Y.A.,
M.L.C., (Kolar
Constituency),
S/o Late Aadi
LOK/BCD/4059/2014 Narayanappa, ARE-2
R/O No.461, 7th Cross,
4th Main, R.M.V. 2nd
Stage, Bangalore-94.
Sri Shrikant L.
Ghotnekar,
Member of Karnataka
LOK/BGM/816/2019 Legislative Council, ARE-2
Uttara Kannada
District.
203. The statement showing the 12(3) reports sent to the
Government in respect of IAS, IPS and IFS Officers, is as under:
Sl. Name and designation or
Complaint No. Date of report Department Remarks
No. Respondents
1. LOK/MYS/1/2000 Sri R. Ramanna , Chief 29/08/2008 RDPR Closed
ARE-9 Accounts Officer Mandya 07/06/2013
Other
BABURAO MUDABI CHIEF
EXECUTIVE OFFiCER,ZP
MANDYA
Sri T. Madaiah Accounts
Officer Zilla panchyath
Mandya
2. LOK/MYS/2/2000 BABU RAO MUDABI CHIEF 17/05/2007 RDPR Closed
ARE-9 EXECUTIVE OFFICER 07/06/2013
MANDYA Other
3. LOK/MYS/76/2002 CHIKKERUR, K.S.N. IPS., 09/05/2013 EDUCATION Closed
ARE-5 REGISTRAR, UNI 21/08/2013 eng
VERYSITY OF MYS. by CA
4. LOK/MYS/10/2003 ARE- Sri A.M. Annaiah, IFS 05/01/2004 FOREST Closed
9 Deputy Conservator of 13/06/2013
Forests, Karnataka Forest Other
Department, Hunsur wild
Life Division, Hunsur,
Mysore District.
5. LOK/BCD/166/2003 S.M.Raju, IAS 11/12/2003 LABOUR
ARE-1 Director, Employment Go recd
and Training, Bangalore 25/11/2004
Shivalinga Murthy
Joint Director,
Employment Exchange
and
Training, Subbaiah Circle,
Bangalore
6. LOK/MYS/19/2005 ARE- Commissioner 20/09/2013 OTHERS Closed
7 Endowment, Bangalore. 04/08/2014
enq_dy_CA
B.M.Sukumara Shetty,
Managing Trustee, Sri
Mookambika Temple,
Kollur, Udupi 576220.
Executive officer, Kollur
Temple.
7. LOK/BCD/67/2005 ARE- Shivaram,I.A.S., 24/05/2005 SOCIAL Closed
1 Commissioner, Social WELFARE 23/08/2013 Not
Welfare Depot, Maintainable
8angalore.
LOK/BGM/440/2005 Prabhakar, 03/08/2013 REVENUE Closed
8. ARE-2 Deputy Commissioner, 29/03/2019
Bagalkot District, Compliance
Bagalkot. report
9. LOK/BCD/220/2007 S.S.Topgi 13/01/2010 URBAN DEVLPNT Closed
ARE-1 The Joint Director of 17/10/2013
Town Planning, B.B.M.P. In Accd wt law
Bangalore
Dr. S. Subramanya
Commissioner, Bruhath
Bangalore Mahanagara
Palike. Bangalore
10 LOK/BCD/18/2008 ARE- 28/06/2014 HOME 12(3) sent
1 Khaleel UL Rehman 28/06/2014
Inspector General of
Police, Home Guards,
Bangalore.
11 LOK/MYS/122/2008 G.A. Sudarshan, IFS the 19/05/2011 DPAR Go recd
ARE-5 then Conservator of 20/02/2013
Forests. Kodagu Circle.
Madikeri
12 LOK/MYS/123/2008 B.K.chandra shekar 05/06/2014 DPAR Closed
ARE-7 the then Range Forest 09/04/2019
Officer, Mangalore Central Govt.
Region, (Presently emp.
Assistant Conservator of
Forests)
Smt.Anitha S. Arekal
Conservator of Forest and
General Manager,
Karnataka Cashew
Development
Corporation, Mangalore.
13 LOK/BCD/241/2008 D.K.Rangaswamy I.A.S.. 06/11/2009 EDUCATION Closed
ARE-1 Director, Mass Education 26/08/2010
Department. enq_by_CA
Malleshwaram,
Bangalore.
14 LOK/BCD/404/2010 Sham Bhat 29/04/2014 C&I Closed
ARE-1 Chief Executive Officer, 19/09/2014
K.I.A.D.B., Nrupathunga enq_by_CA
Road, Bangalore.
Nagaraja Nayak
Secretary, K.I.A.D.B.,
Nrupathunga Road,
Bangalore.
Swamy.T.R
Chief Development
Officer. K.I.A.D.B.,
Nrupathunga Road,
Bangalore.
Rama
Development Officer - 2,
K.I.A.D.B.. Nrupathunga
Road, Bangalore.
15 LOK/BCD/493/2010 Chief Executive Officer 17/05/2014 RDPR Closed
ARE-6 Bangalore Zilla 26/07/2019
nd
Panchayathi, 2 Floor, enq_by_CA
Krushi Bhavan Building,
Hudson Circle, Bangalore.
Panchayath Development
Officer
Bommasandra Grama
Panchayathi, Atthibele
Hobli, Anekal Taluk,
Bangalore.
Principal Secretary
Rural Development and
Panchayath Raj
Department, No.2,
M.S.Building, Bangalore.
Secretary,
Bommasandra Grama
Panchayathi,
Bommasandra, Atthibele
Hobli, Anekal Taluk,
Bangalore.
Executive Officer
Anekal Taluk
Panchayathi, Anekal,
Bangalore.
16 LOK/BCD/505/2010 Chandrashekar M., IPS 01/10/2013 HOME Closed
ARE-7 Deputy Commissioner of 12/08/2014
Police East Division, enq by CA
Bangalore City.
Bangalore.
Santhosh S
Police Sub-lnspector,
Byappanahalli Police
Station, Byappanahalli,
Bangalore City
Srinivas K.V Police
inspector,
Byappanahalii Police
Slation. Byappanahaiii,
Bangalore City
ManjunathG.B
Asst.Commissioner of
Police Halasuru Sub-
Division, Bangalore City,
Bangalore.
17 LOK/BCD/506/2010 Cnandrashekar M., IPS 01/10/2013 HOME Closed
ARE-7 Deputy Commissioner of 12/08/2014
Police East Division, enq_by_CA
Bangalore City,
Bangalore.
Srinivas K.V Police
Inspector,
Byappanahalli Police
Station, Bangalore City,
Bangalore
Manjunath G.B
Asst.Commissioner of
Police, Halasuru Sub-
Division, Bangalore City.
Bangalore.
Santhosh S
Police Sub-Inspector,
Byappanahalli Police
Station, Byappanahalli
Bangalore city.
18 LOK/BCD/116/2011 Bharathlal Meena 28/O2/2013 BDA Closed
ARE-1 Commissioner, Bangalore 03/01/2014 Not
Development Authority, Maintainable
K.P. West, Bangalore -
560020.
Srinivasa R.
Engineer Member,
Bangalore Development
Authority. K.P. West,
Bangalore - 560020.
19 LOK/BCD/124/2011 Jagadish Shettar 02/07/2015 DPAR Go recd
ARE-2 Minister, Rural 29/09/2015
Development and
Panchayat Raj
Department, Vidhana
Soudha, Bangalore.
Jayadevappa H.R.
Managing Direclor,
Government Tools and
Training Center,
Rajajinagar Industrial
Area, Bangalore-560010.
Ravi Kumar P.
Secretary to Government,
Rural Development end
Panchayath Raj
Department,
M.S.Building, Bangalore.
20 LOK/BD/143/2011 Raju K., 25/01/2014 REVENUE Go recd
ARE-2 M.L.A., Ramanagar, 15/12/2020
Ramanagar District.
Shailaja.C.P
Asst.Deputy
Commissioner,
Ramanagar, Ramanagar
District.
Srinivasa,
Case Worker,
City Municipal Council,
Ramanagar, Ramanagar
District.
Chandrashekaraiah.G.L
The Then Deputy
Commissioner,
Ramanagar, Ramanagar
District.
Gopinath.T
Judicial Head Munsi,
D.C.Office, Ramanagar,
Ramanagar District.
Natesh.D.B
The Then Tahasildar,
Ramanagar, Ramanagar
District. (Presently W/@
Theertha Halli, Shimoga
District)
Nagaraju
Revenue Inspector, City
Municipal Council,
Ramanagar, Ramanagar
District.
Sidda Raju
Commissioner, City
Municipal Council,
Ramanagar, Ramanagar
District.
Narayana
Revenue Officer, City
Municipal Council,
Ramanagar, Ramanagar
District.
21. LOK/BCD/218/2011 Principal Secretary 22/08/2014 BDA 12(3) sent
ARE-2 Revenue Department, 22/08/2014
M.S.Building, Bangalore -
560 001.
Karunakara Reddy.G
Revenue Minister,
Government of
Karnataka, Vidhana
Soudha, Bangalore - 1.
Special Land Acquisition
Officer
Podium Block,
Visveshwaraiah Towers,
Bangalore.
Commissioner B.B.M.P.,
N.R.Square,
Bangalore - 560 002.
Commissioner Bangalore
Development
Authority, T.Chowdaiah
Road, Bangalore - 560
22. LOK/BD/8730/2011 Sri. N.Jayaram 26/12/2014 RDPR Go recd
ARE-6 Chief Executive Officer 09/03/2017
7/7/2011 to 25/6/2012
ZP,Chitradurga
Rangegowda,
The Then CEO, Zilla
Panchayat. Chitradurga.
Sri.Vithal
Project Director 2008-09
to 2010-11 ZP.
Chitradurga
Sri.H.P.Prakash
Chief Executive Officer
28/5/2007 to 3/6/2009
ZP,
Chitradurga
Sri Lakshminarayana
Project Director Zilla
Panchayath Chitradurga
SriBasavaraj
Project Director 2007-08
to 2008-09 ZP,
Chitradurga
23 LOK/BCD/519/2012 Bharath Lal Meena 17/05/2014 BOA Closed
ARE-1 Commissioner, B.D.A., 23/09/2014
Kumara Park West Extn., enq_by_CA
Bangalore - 560 020.
24. LOK/BCD/2973/2012 Bharat Lal Meena IAS 20/03/2014 KPTCL 12(3) sent
ARE-1 The Then Managing 20/03/2014
Director, BESCOM,
Bangalore.
25 LOK/BCD/81/2013 MuniveeregowdaR 01/07/2015 DPAR Closed
ARE-1 former Joint 09/05/2017 In
Commissioner, Accd wt law
Department of Transport
Multi Storied Building,
Bengaluru
T Sham Bhat, IAS
former Transport
Commissioner,
Department of Transport,
Bengaluru
Bhaskar Rao, IPS former
Transport
Commissioner,
Department of Transport,
Bengaluru
LOK/BCD/1114/2013 Sri.Anjaneya Reddy 26/03/2015 FOREST Closed
26. ARE-1 Deputy Conservator of 17/07/2015
Forest (Retd.,), No. 111, In Accd wt law
4th Cross, 16th Main Road,
J.C Nagar, Kurubarahalli,
Bangalore.
Sri.Gangadharaiah,
Range Forest Officer and
Estate Officer, Aranya
Bhavan, Malleshwaram,
Bangalore.
Sri.Ameer Jan
Forest Guard, Forest
Squad, Opposite to
Bangalore CET, 18th
Cross, Malleshwaram,
Bangalore.
Sri.Vijaykumar Gogi, IFS
Chief Conservator of
Forest, O/o Land Records
and Chief Conservator of
Forest (Chairman of
Forest Force),
Malleshwaram,
Bangalore.
Sri.R.Rangaswamy
Assistant Conservator of
Forest (Retd.,), No. 54,
2nd Main Road,
Bikashipura, Bangalore-
Sri.Srinivas
Assistant Conservator of
Forest, Chintamani Sub-
Division, Chintamani.
Sri.B.M.Parameshwar, IFS
Chief Conservator of
Forest and Managing
Director of Karnataka Co-
operative Marketing
Federation, Bangalore.
Sri.Shivanand.T
Range Forest Officer,
Social Forest Range,
Magadi, Bangalore.
Sri.Bylappa
Range Forest Officer,
Social Forest, Anekal
Range, Anekal,
Chandapura.
Sri.S.Shanthappa, IFS
Chief Conservator of
Forest,
Mangalore Circle,
Mangalore.
Sri.Chawan.N.B.
Assistant Conservator of
Forest (Retd.,), Social
Forest, Koppa Taluk and
District.
Sri.Hanumaiaha (Expired)
Forest Guard,
Vishwesharaiaha Layout,
4th Block, New Layout,
Jyananabharathi Post,
Doddabasthi, Bangalore-
27 LOK/MYS/2525/2013 Narayanaswamy.K.M IFS 11/05/2017 FOREST 12(3) sent
ARE-6 Deputy Conservator of 11/05/2017
Forest, (Wild Animal),
Kollegala Taluk,
Chamarajanagar District.
28 LOK/BCD/3304/2013 Gourav Gupta, 14/05/2014 BWSSB Closed
ARE-1 President, BWSSB, 22/09/2014
Cauvery Bhavan, enq_by_CA
Bangalore-09
Kemparamaiah
Chief Engineer, BWSSB,
Cauvery Bhavan,
Bangalore- 09
29 LOK/BCD/100/2014 Manjunath Prasad IAS 20/11 /2018 TRANSPORT Go recd
ARE-1 Managing Director, 12/04/2019
K.S.R.T.C., Central Office,
K.H.Road, Shanthinagar,
Bangalore - 560 027.
S.S.Bharathi
Security and Vigilence
Officer, Shanthinagar,
Bangalore
30 LOK/BCD/1559/2014 Mr. Bharath lal Meena, 27/11/2014 URBAN DEVLPNT Closed
ARE-2 The then Commissioner, 10/02/2021
Bangalore Developement Compliance
Authority, Bangalore. report
31 LOK/BCD/2387/2O14 Ayyappa 05/04/2017 REVENUE Closed
ARE-6 Dy. Commissioner, 20/01/2022
Bangalore Urban Dist., Other
Bangalore.
Manjunath K.A.S.,
Tahsildar, Bangalore
South Tq., Bangalore.
Sub-Registrar
Tavarekere, Bangalore
South Taluk,
Bangalore Urban Dist.
32 LOK/BCD/3756/2014 Sham Bhat, 24/04/2015 PARLIMENTARY 12(3) sent
ARE-2 Commissioner, Bangalore 24/04/2015
Development Authority,
T.Chowdaiah Road,
Kumara Park West,
Bangalore-560 020.
Satish
Joint Registrar of
Co-operative Societies,
Pampa Mahakavi Road,
Chamarajapete,
Bangalore - 560 052.
Hegde.G.S
Ex-Registrar of Co-
Operative Societies.
No.1, Ali Askar Road,
Bangalore-560 052.
Channappa Gowda
Registrar of Co-Operative
Societies, No.1,
Ali Askar Road.
Bangalore-560 052.
Mahadev Prasad Minister
of Co-Operation,
Vidhana Soudha,
Bangalore.
204. It is also relevant to refer to Karnataka Lokayukta
Crime Statistics from 26.5.1986 to 30.6.2022 (Disposals), which is
as under:
KarnatakaLokayukta
CrimeStatisticsfrom26/05/1986to30/06/2022(Disposals)
FIR
Sl.No. Year Conviction Acquitted Discharged Abated quash
1 1986 1 4 0 0 0
2 1987 0 6 0 0 0
3 1988 3 8 2 1 0
4 1989 8 19 0 1 0
5 1990 7 12 0 2 0
6 1991 4 10 0 4 0
7 1992 6 23 0 3 1
8 1993 14 39 1 2 0
9 1994 18 71 0 2 0
10 1995 14 49 1 5 1
11 1996 17 75 3 3 0
12 1997 15 77 6 4 0
13 1998 12 77 12 9 0
14 1999 9 93 3 5 0
15 2000 10 128 5 8 0
16 2001 14 123 3 9 2
17 2002 11 90 4 9 1
18 2003 21 139 4 8 3
19 2004 32 182 0 10 0
20 2005 36 166 10 12 0
21 2006 28 184 5 8 0
22 2007 31 127 3 6 1
23 2008 18 102 3 6 3
24 2009 24 102 13 11 0
25 2010 67 143 12 9 1
26 2011 84 158 22 7 7
27 2012 70 106 12 7 10
28 2013 51 109 3 8 22
29 2014 49 140 10 8 17
30 2015 63 161 18 16 20
31 2016 72 178 19 16 6
32 2017 66 222 27 9 3
33 2018 44 173 14 11 2
34 2019 51 133 10 7 0
35 2020 31 82 6 12 1
36 2021 32 81 7 20 2
37 2022 13 44 2 8 3
TOTAL 1046 3636 240 266 106
205. It is also relevant to refer to the powers of Lokayuktas
in different States in respect of registration of FIRs and filing of
report under section 173 of the Code of Criminal Procedure, which
is as under:
Sl. STATE WHETHER LOKAYUKTA RELEVANT
No. HAS POWER TO ACT/RULES
REGISTER FIR
1 Madhya (Yes) Madhya Pradesh
Pradesh Superintendence of Special Police
investigation by Madhya Establishment
Pradesh Special Police Act, 1947
Establishment is vested in
the Lokayukt appointed
under the MP Lokayukt
and Uplokayukt Act, 1981,
which is empowered to
investigate and file charge
sheet for the offences
punishable under
Prevention of Corruption
Act, 1988.
2 Uttarakhand (Yes) Uttarakhand
Section 12 empowers to Lokayukta Act,
investigate the offences 2014
under the Prevention of
Corruption Act, 1988 or
the Himachal Pradesh
Prevention of Specific
Corrupt Practices Act,
1983 and to file final report
under Sec. 173 CrPC.
3 Himachal (Yes) Himachal
Pradesh Pradesh
Section 11 empowers to Lokayukta Act,
investigate the offences 2014
under the Prevention of
Corruption Act, 1988 or
the Himachal Pradesh
Prevention of Specific
Corrupt Practices Act,
1983 and to file final report
under Sec. 173 CrPC.
4 Mizoram (Yes) Mizoram
Section 11 empowers to Lokayukta Act,
investigate the offences 2014
under the Prevention of
Corruption Act, 1988 or
the Himachal Pradesh
Prevention of Specific
Corrupt Practices Act,
1983 and to file final report
under Sec. 173 CrPC.
5 Manipur (Yes) Manipur
Section 12 empowers to Lokayukta Act,
investigate the offences 2014
under the Prevention of
Corruption Act, 1988 or
the Himachal Pradesh
Prevention of Specific
Corrupt Practices Act,
1983 and to file final report
under Sec. 173 CrPC.
6 Meghalaya (Yes) Meghalaya
Section 12 empowers to Lokayukta Act,
investigate the offences 2014
under the Prevention of
Corruption Act, 1988 or
the Himachal Pradesh
Prevention of Specific
Corrupt Practices Act,
1983 and to file final report
under Sec. 173 CrPC.
7 Sikkim (Yes) Sikkim
Section 11 empowers to Lokayukta Act,
investigate the offences 2014
under the Prevention of
Corruption Act, 1988 or
the Himachal Pradesh
Prevention of Specific
Corrupt Practices Act,
1983 and to file final report
under Sec. 173 CrPC.
8 Arunachala Arunachala
Pradesh Section 12 empowers to Pradesh
investigate the offences Lokayukta Act,
under the Prevention of 2014
Corruption Act, 1988 or
the Himachal Pradesh
Prevention of Specific
Corrupt Practices Act,
1983 and to file final report
under Sec. 173 CrPC.
9 Nagaland (Yes) Nagaland
Notwithstanding anything Lokayukta Act
contained in Section 197 of
CrPC and Section 19 of
Prevention of Corruption
Act, Section 26 of the
Nagaland Lokayukta Act
confers power on
Lokayukta to grant
sanction for prosecution
for any matter pending
before it.
Organizational structure in
sthe official website of
Nagaland Lokayukta
describes the head of police
wing as IGP and Director
and OC Nagaland
Lokayukta Police Station.
206. The material on record clearly depicts after creation of
ACB w.e.f 14.3.2016, ACB has not registered any criminal cases
against the Ministers, MPs, MLAS or MLCs, but only registered few
cases against some authorities and conducted raids. No material
is produced by the Government or the ACB to prove that ACB is
more powerful than Lokayukta for the purpose of improving the
standards of public administration, by looking into complaints
against administrative actions, including cases of corruption,
favouritism and official indiscipline in administration machinery.
Infact, creation of ACB is only to protect the vested interest and not
to protect the interest of the general public at large. It is high time
for the State Government (any Government) or its authorities to
act as a trustee of the society and infact, in all facets of public
administration, every public servant has to exhibit honesty,
integrity, sincerity and faithfulness in implementation of the
political, social, economic and constitutional policies to integrate the
nation, to achieve excellence and efficiency in the public
administration. A public servant entrusted with duty and power to
implement constitutional policy under Articles 14, 21 and 300 of the
Constitution of India and all inter-related directive principles of
state policy under the Constitution, should exhibit transparency in
implementation and of accountable for due effectuation of
constitutional goals. Further, the Government should allow the
Lokayukta/Upa-Lokayukta to work independently without
intervention or undue influence from anybody so that citizen of the
State can redress a grievance before them "without fear or favour".
207. Even though, we got independence about 75 years ago
by the struggle of our forefathers, who fought for our freedom by
pricing their blood, unfortunately, we are not in a position to
eradicate corruption till today since, no successive Governments
have taken drastic steps in that direction. Though the KL came into
force w.e.f. 15th January 1986, it worked independently only till
14.3.2016, the date on which the impugned executive order came
to be passed.
208. Unfortunately, the institution of Lokayukta has been
diluted by the executive order passed by the State Government by
creating ACB, thereby indirectly made the authority of Lokayukta
and Upa-Lokayukta "paper tigers without any teeth and claws",
which is impermissible. The legislative intent behind the KL Act is
to see that public servants covered by the sweep of the Act should
be answerable for their actions as such to the Lokayukta and Upa-
Lokayukta and such authorities should be armed with appropriate
powers and sanctions so that their orders and opinions do not
become "mere paper directions". The decisions of Lokayukta and
Upa-Lokayukta, therefore, must be capable of being fully
implemented. These authorities should not be reduced to "mere
paper tigers" etc., Therefore, it is high time for the State
Government to strengthen the institution of Lokayukta and Upa-
Lokayukta and get back its "glory".
209. "It is also relevant to state at this stage that the
Lokayukta and Upa-Lokayukta are appointed under the provisions
of Section 3(2)(a) and 3(2)(b) of the KL Act on the advice tendered
by the Chief Minister in consultation with the several constitutional
authorities. If the Government and constitutional authorities are
really interested in public welfare and interest in the development
of Karnataka, they should take conscious and unanimous decision
to recommend persons with track record of integrity and
competence and fair both on the public and personal life, to the
posts of Lokayukta and Upa-Lokayuktas uninfluenced by caste,
creed etc., and maintain transparency in the appointment. The
appointment should be non-political and the posts of Lokayukta and
Upa-Lokayuktas should not be accommodation centre for anybody."
The Government should allow the authorities to work independently
without fear or favour, for the purpose of improving the standards
of public administration, by looking into complaints against
administrative actions, including cases of corruption, favouritism
and official indiscipline in administration machinery. In addition to
the above, Administrative and Enquiry Wing, Technical Wing, Police
Wing and General Wing of the Lokayukta as contemplated under
the first schedule of Rule 6(2) of the Karnataka Lokayukta (C & R
etc.) Rules, 1988 should also be strengthened by appointing
honest persons.
210. It is high time for the Legislature and the judiciary to
curb the "menace of corruption which is very dangerous to the
future generation than the disease of cancer and also it is a major
obstacle to the growth of India and in particular, the State of
Karnataka." If a public servant, who is convicted for corruption, is
allowed to continue to hold public office, it would impair the morale
of the other persons manning such office, and consequently, that
would erode the already shrunk confidence of the people in such
institutions besides demoralizing the other honest public servants,
who would either be the colleagues or subordinates of the convicted
person. If honest public servants are compelled to take orders from
proclaimed corrupt officers on account of the suspension of the
conviction, the fall out would be one of the shaking system itself.
211. The Hon'ble Supreme Court while considering the
provisions of Section 389 (1) of the Code of Criminal Procedure,
Article 311(2) of the Constitution of India and Section 13(2) of the
PC Act in the case of K.C. Sareen -vs- C.B.I. Chandigarh39, at
paragraphs 11 and 12 has held as under:
"11. Corruption by public servants has now reached a
monstrous dimension in India. Its tentacles have
started grappling even the institutions created for the
protection of the republic. Unless those tentacles are
intercepted and impeded from gripping the normal and
orderly functioning of the public offices, through strong
legislative, executive as well as judicial exercises the
corrupt public servants could even paralyse the
functioning of such institutions and thereby hinder the
democratic polity. Proliferation of corrupt public
servants could garner momentum to cripple the social
order if such men are allowed to continue to manage
and operate public institutions. When a public servant is
found guilty of corruption after a judicial adjudicatory
process conducted by a court of law, judiciousness
demands that he should be treated as corrupt until he is
exonerated by a superior court. The mere fact that an
2001 AIR SCW 3339
appellate or revisional forum has decided to entertain
his challenge and to go into the issues and findings
made against such public servants once again should
not even temporarily absolve him from such findings. If
such a public servant becomes entitled to hold public
office and to continue to do official acts until he is
judicially absolved from such findings by reason of
suspension of the order of conviction, it is public
interest which suffers and sometimes, even irreparably.
When a public servant who is convicted of corruption is
allowed to continue to hold public office, it would impair
the morale of the other persons manning such office,
and consequently that would erode the already shrunk
confidence of the people in such public institutions
besides demoralising the other honest public servants
who would either be the colleagues or subordinates of
the convicted person. If honest public servants are
compelled to take orders from proclaimed corrupt
officers on account of 6 the suspension of the
conviction, the fallout would be one of shaking the
system itself. Hence it is necessary that the court
should not aid the public servant who stands convicted
for corruption charges to hold only (sic) public office
until he is exonerated after conducting a judicial
adjudication at the appellate or revisional level. It is a
different matter if a corrupt public officer could continue
to hold such public office even without the help of a
court order suspending the conviction.
12. The above policy can be acknowledged as
necessary for the efficacy and proper functioning of
public offices. If so, the legal position can be laid down
that when conviction is on a corruption charge against
a public servant the appellate court or the revisional
court should not suspend the order of conviction during
the pendency of the appeal even if the sentence of
imprisonment is suspended. It would be a sublime
public policy that the convicted public servant is kept
under disability of the conviction in spite of keeping the
sentence of imprisonment in abeyance till the disposal
of the appeal or revision."
(Underline supplied)
212. The Hon'ble Supreme Court while considering the
provisions of Sections 19(1) and 22 of the PC Act in the case of
Subramanian Swamy -vs- Manmohan Singh40 has strongly
condemned the corruption in the Country as under:
"11. Today, corruption in our country not only
poses a grave danger to the concept of
(2012) 3 SCC 64
constitutional governance, it also threatens the
very foundation of Indian democracy and the Rule
of Law. The magnitude of corruption in our public
life is incompatible with the concept of a socialist,
secular democratic republic. It cannot be disputed
that where corruption begins all rights end.
Corruption devalues human rights, chokes a
development and undermines justice, liberty,
equality, fraternity which are the core values in our
preambular vision. Therefore, the duty of the Court
is that any anti-corruption law has to be interpreted
and worked out in such a fashion as to strengthen
the fight against corruption. That is to say in a
situation where two constructions are eminently
reasonable, the Court has to accept the one that
seeks to eradicate corruption to the one which
seeks to perpetuate it."
(Underline supplied)
213. It is also not in dispute that India is a Member of
'United Nations Convention Against Corruption' where certain
measures were adopted for preventing corruption. Corruption is an
insidious plague that has wide range of corrosive effects on
societies. It undermines democracy and the rule of law, leads to
violations of human rights, distorts markets, erodes the quality of
life and allows organized crime, terrorism and other threats to
human security to flourish. Article 36 of 'United Nations
Convention Against Corruption' relates to specialized authorities and
the said Article contemplates that each State Party shall, in
accordance with the fundamental principles of its legal system,
ensure the existence of a body or bodies or persons specialized in
combating corruption through law enforcement. Such body or
bodies or persons shall be granted the necessary independence, in
accordance with the fundamental principles of the legal system of
the State Party, to be able to carry out their functions effectively
and without any undue influence. Such persons or staff of such
body or bodies should have the appropriate training and resources
to carry out their tasks.
214. It is also relevant to state at this stage that the Lokpal
and Lokayuktas Act, 2013 is enacted to provide for the
establishment of a body of Lokpal for the Union and Lokayukta for
States to inquire into allegations of corruption against certain public
functionaries and for matters connected therewith or incidental
thereto. Section 63 of the Lokpal and Lokayuktas Act, 2013
specifically mandates that every State shall establish a body to be
known as the Lokayukta for the State, if not so established,
constituted or appointed, by a law made by the State Legislature, to
deal with complaints relating to corruption against certain public
functionaries, within a period of one year from the date of
commencement of this Act.
215. The object of PC Act is to consolidate and amend the
law relating to prevention of corruption and the matter connected
thereto, thereby strengthening of the Lokayukta and Upa-Lokayukta
is inevitable and "it is high time to say goodbye to the ACB", to
strengthen the institution of Lokayukta, which is functioning under
the provisions of the KL Act.
216. It is an undisputed fact that the Lokayukta as an
institution has all the trappings of a police station conferred on it by
virtue of several provisions of K.L. Act and Rules framed
thereunder. Section 14 of the K.L. Act makes it clear that
whenever sanction of the Competent Authority is required for
prosecution and if such action is required to be taken by the
Lokayukta/Upalokayukta, it is deemed to have been granted. When
the power of investigation is conferred on the Lokayukta or
Upalokayukta and the Police Wing is attached to the institution of
Lokayukta as per the statutory provisions, it cannot be reasonably
imagined that in the course of the investigation by them, even if
commission of an offence is detected either by the Lokayukta or by
the Upalokayukta, it will not have jurisdiction to deal with the
matter and that they have to be only a helpless spectator to
condone the offences committed and stay their hands and that their
power is limited only to initiate disciplinary proceedings. The object
of the legislation is to bring about transparency in the
administration and that could be brought about by initiating both
criminal and disciplinary proceedings. It cannot be contended that
Lokayukta or Upalokayukta or the Police Wing have no power to
initiate criminal proceedings and conduct an investigation on that
behalf. The power of initiating prosecution includes all the incidental
power that is required to complete the investigation.
217. As already stated supra, the K.L. Act is a self contained
code providing for investigation, filing of complaint and all other
incidental matters with the police attached to the Lokayukta
institution by virtue of statutory provisions. Thereby, when the
K.L. Act is holding the field, it is not permissible for the State in
exercise of its executive power under Article 162 of the
Constitution of India to constitute ACB to nullify the power
conferred on the Lokayukta as an institution under the K.L.Act.
218. Our view is fortified by the judgement of the Hon'ble
Supreme Court in the case of I.T.C. Bhadrachalam Paperboards
vs. Mandal Revenue Officer, AP41 , wherein it is held as under:
"Where the field is occupied by an enactment
the executive has to act in accordance therewith,
particularly where the provisions are mandatory in
nature. There is no room for any administrative
action or for doing the thing ordained by the statute
otherwise than in accordance therewith. Where, of
course, the matter is not governed by a law made by
a competent Legislature, the executive can act in its
executive capacity since the executive power of the
State extends to matters with respect to which the
Legislature of a State has the power to make laws"
(1996)6 SCC 634
Thereby, the very notification issued by the State Government
dated 14.3.2016 constituting ACB, cannot be sustained.
219. The Hon'ble Supreme Court in the case of
Subramanian Swamy -vs- Director, Central Bureau of
Investigation and another42, at paragraphs 54, 57, 58, 59, 64,
69 and 70 has held as under:
"54. The Court then discussed the earlier decisions
of this Court in J.A.C. Saldanha [State of Bihar v. J.A.C.
Saldanha, (1980) 1 SCC 554 : 1980 SCC (Cri) 272]
and K. Veeraswami [(1991) 3 SCC 655 : 1991 SCC (Cri)
734] and also the provisions of the DSPE Act and held
that : (Vineet Narain case [(1998) 1 SCC 226 : 1998
SCC (Cri) 307] , SCC p. 262, para 42)
Powers of investigation which are governed by the
statutory provisions and they cannot be curtailed by
any executive instruction.
Having said that, this Court stated that the law did not
classify offenders differently for treatment thereunder,
including investigation of offences and prosecution for
offences, according to their status in life. Every person
(2014)8 SCC 682
accused of committing the same offence is to be dealt
with in the same manner in accordance with law, which
is equal in its application to everyone. The Single
Directive is applicable only to certain persons above the
specified level who are described as decision-making
officers. Negativing that any distinction can be made for
them for the purpose of investigation of an offence of
which they are accused, this Court in paras 45 and 46
held as under : (Vineet Narain case [(1998) 1 SCC 226
: 1998 SCC (Cri) 307] , SCC p. 263)
"45. Obviously, where the accusation of
corruption is based on direct evidence and it
does not require any inference to be drawn
dependent on the decision-making process,
there is no rational basis to classify them
differently. In other words, if the accusation be
of bribery which is supported by direct
evidence of acceptance of illegal gratification
by them, including trap cases, it is obvious that
no other factor is relevant and the level or
status of the offender is irrelevant. It is for this
reason that it was conceded that such cases
i.e. of bribery, including trap cases, are outside
the scope of the Single Directive. After some
debate at the Bar, no serious attempt was
made by the learned Attorney General to
support inclusion within the Single Directive of
cases in which the offender is alleged to be in
possession of disproportionate assets. It is
clear that the accusation of possession of
disproportionate assets by a person is also
based on direct evidence and no factor
pertaining to the expertise of decision making
is involved therein. We have, therefore, no
doubt that the Single Directive cannot include
within its ambit cases of possession of
disproportionate assets by the offender. The
question now is only with regard to cases other
than those of bribery, including trap cases, and
of possession of disproportionate assets being
covered by the Single Directive.
46. There may be other cases where the
accusation cannot be supported by direct
evidence and is a matter of inference of
corrupt motive for the decision, with nothing to
prove directly any illegal gain to the decision-
maker. Those are cases in which the inference
drawn is that the decision must have been
made for a corrupt motive because the
decision could not have been reached
otherwise by an officer at that level in the
hierarchy. This is, therefore, an area where the
opinion of persons with requisite expertise in
decision making of that kind is relevant and,
may be even decisive in reaching the
conclusion whether the allegation requires any
investigation to be made. In view of the fact
that CBI or the police force does not have the
expertise within its fold for the formation of the
requisite opinion in such cases, the need for
the inclusion of such a mechanism comprising
of experts in the field as a part of the
infrastructure of CBI is obvious, to decide
whether the accusation made discloses
grounds for a reasonable suspicion of the
commission of an offence and it requires
investigation. In the absence of any such
mechanism within the infrastructure of CBI,
comprising of experts in the field who can
evaluate the material for the decision to be
made, introduction therein of a body of experts
having expertise of the kind of business which
requires the decision to be made, can be
appreciated. But then, the final opinion is to be
of CBI with the aid of that advice and not that
of anyone else. It would be more appropriate
to have such a body within the infrastructure
of CBI itself."
57. Can classification be made creating a class of the
government officers of the level of Joint Secretary and
above level and certain officials in public sector
undertakings for the purpose of inquiry/investigation
into an offence alleged to have been committed under
the PC Act, 1988? Or, to put it differently, can
classification be made on the basis of the
status/position of the public servant for the purpose of
inquiry/investigation into the allegation of graft which
amounts to an offence under the PC Act, 1988? Can the
legislature lay down different principles for
investigation/inquiry into the allegations of corruption
for the public servants who hold a particular position? Is
such classification founded on sound differentia? To
answer these questions, we should eschew the
doctrinaire approach. Rather, we should test the validity
of the impugned classification by broad considerations
having regard to the legislative policy relating to
prevention of corruption enacted in the PC Act, 1988
and the powers of inquiry/investigation under the DSPE
Act.
58. The Constitution permits the State to determine, by
the process of classification, what should be regarded
as a class for purposes of legislation and in relation to
law enacted on a particular subject. There is bound to
be some degree of inequality when there is segregation
of one class from the other. However, such segregation
must be rational and not artificial or evasive. In other
words, the classification must not only be based on
some qualities or characteristics, which are to be found
in all persons grouped together and not in others who
are left out but those qualities or characteristics must
have a reasonable relation to the object of the
legislation. Differentia which is the basis of classification
must be sound and must have reasonable relation to
the object of the legislation. If the object itself is
discriminatory, then explanation that classification is
reasonable having rational relation to the object sought
to be achieved is immaterial.
59. It seems to us that classification which is made in
Section 6-A on the basis of status in government
service is not permissible under Article 14 as it defeats
the purpose of finding prima facie truth into the
allegations of graft, which amount to an offence under
the PC Act, 1988. Can there be sound differentiation
between corrupt public servants based on their status?
Surely not, because irrespective of their status or
position, corrupt public servants are corrupters of public
power. The corrupt public servants, whether high or
low, are birds of the same feather and must be
confronted with the process of investigation and inquiry
equally. Based on the position or status in service, no
distinction can be made between public servants
against whom there are allegations amounting to an
offence under the PC Act, 1988.
64. As a matter of fact, the justification for Section 6-A
which has been put forth before us on behalf of the
Central Government was the justification for Single
Directive 4.7(3)(i) in Vineet Narain [(1998) 1 SCC 226 :
1998 SCC (Cri) 307] as well. However, the Court was
unable to persuade itself with the same. In Vineet
Narain [(1998) 1 SCC 226 : 1998 SCC (Cri) 307] in
respect of Single Directive 4.7(3)(i), the Court said that
: (SCC pp. 262-63, para 44)
"44. ... Every person accused of committing
the same offence is to be dealt with in the
same manner in accordance with law, which
is equal in its application to everyone."
We are in agreement with the above observation in
Vineet Narain [(1998) 1 SCC 226 : 1998 SCC (Cri) 307]
, which, in our opinion, equally applies to Section 6-A.
In Vineet Narain [(1998) 1 SCC 226 : 1998 SCC (Cri)
307] , this Court did not accept the argument that the
Single Directive is applicable only to certain class of
officers above the specified level who are decision-
making officers and a distinction can be made for them
for the purpose of investigation of an offence of which
they are accused. We are also clearly of the view that
no distinction can be made for certain class of officers
specified in Section 6-A who are described as decision-
making officers for the purpose of inquiry/investigation
into an offence under the PC Act, 1988. There is no
rational basis to classify the two sets of public servants
differently on the ground that one set of officers is
decision-making officers and not the other set of
officers. If there is an accusation of bribery, graft, illegal
gratification or criminal misconduct against a public
servant, then we fail to understand as to how the status
of offender is of any relevance. Where there are
allegations against a public servant which amount to an
offence under the PC Act, 1988, no factor pertaining to
expertise of decision making is involved. Yet, Section 6-
A makes a distinction. It is this vice which renders
Section 6-A violative of Article 14. Moreover, the result
of the impugned legislation is that the very group of
persons, namely, high-ranking bureaucrats whose
misdeeds and illegalities may have to be inquired into,
would decide whether CBI should even start an inquiry
or investigation against them or not. There will be no
confidentiality and insulation of the investigating agency
from political and bureaucratic control and influence
because the approval is to be taken from the Central
Government which would involve leaks and disclosures
at every stage.
69. The signature tune in Vineet Narain [(1998) 1 SCC
226 : 1998 SCC (Cri) 307] is, "However high you may
be, the law is above you." We reiterate the same.
Section 6-A offends this signature tune and effectively
Article 14.
70. Undoubtedly, every differentiation is not a
discrimination but at the same time, differentiation
must be founded on pertinent and real differences as
distinguished from irrelevant and artificial ones. A
simple physical grouping which separates one category
from the other without any rational basis is not a sound
or intelligible differentia. The separation or segregation
must have a systematic relation and rational basis and
the object of such segregation must not be
discriminatory. Every public servant against whom there
is reasonable suspicion of commission of crime or there
are allegations of an offence under the PC Act, 1988 has
to be treated equally and similarly under the law. Any
distinction made between them on the basis of their
status or position in service for the purposes of
inquiry/investigation is nothing but an artificial one and
offends Article 14."
220. The Hon'ble Supreme Court while considering the
provisions of section 3(2)(a) and (b) of the KL Act in the case of
Justice Chandrashekaraiah .vs. Janekere C. Krishna and
others43, at paragraphs 36, 37, 106, 107 and 112 has held as
under:
"36. The Lokayukta or Upa-Lokayukta under the Act are
established to investigate and report on allegations or
grievances relating to the conduct of public servants
which includes the Chief Minister; all other Ministers
and Members of the State Legislature; all officers of the
State Government; Chairman, Vice-Chairman of local
authorities, corporations, owned or controlled by the
State Government, a company in which not less than
fifty-one per cent of the shares are held by the State
Government, societies registered under the Societies
Registration Act, cooperative societies and universities
established by or under any law of the legislature.
(2013)3 SCC 117
37. The Lokayukta and Upa-Lokayukta while exercising
powers under the Act, of course, is acting as a quasi-
judicial authority but his functions are investigative in
nature. The Constitution Bench of this Court in
Nagendra Nath Bora v. Commr. of Hills Division and
Appeals [AIR 1958 SC 398] held : (AIR p. 408, para 14)
"14. ... Whether or not an administrative
body or authority functions as a purely
administrative one or in a quasi-judicial
capacity, must be determined in each case,
on an examination of the relevant statute
and the rules framed thereunder."
106. The conditions of service of the staff of the Upa-
Lokayukta are referred to in Section 15 of the Act. They
may be prescribed in consultation with the Lokayukta in
such a manner that the staff may act without fear in the
discharge of their functions. Section 15 of the Act also
enables the Upa-Lokayukta to utilise the services of any
officer or investigating agency of the State or even of
the Central Government, though with the prior
concurrence of the Central Government or the State
Government. Section 15(4) of the Act makes it clear
that the officers and other employees of the Upa-
Lokayukta are under the administrative and disciplinary
control of the Lokayukta.
107. The broad spectrum of functions, powers, duties
and responsibilities of the Upa-Lokayukta, as statutorily
prescribed, clearly bring out that not only does he
perform quasi-judicial functions, as contrasted with
purely administrative or executive functions, but that
the Upa-Lokayukta is more than an investigator or an
enquiry officer. At the same time, notwithstanding his
status, he is not placed on the pedestal of a judicial
authority rendering a binding decision. He is placed
somewhere in between an investigator and a judicial
authority, having the elements of both. For want of a
better expression, the office of an Upa-Lokayukta can
only be described as a sui generis quasi-judicial
authority.
112. As mentioned above, an Upa-Lokayukta does
function as an adjudicating authority but the Act places
him short of a judicial authority. He is much more
"judicial" than an investigator or an inquisitorial
authority largely exercising administrative or executive
functions and powers. Under the circumstances, taking
an overall view of the provisions of the Act and the law
laid down, my conclusion is that the Upa-Lokayukta is a
quasi-judicial authority or in any event an authority
exercising functions, powers, duties and responsibilities
conferred by the Act as a sui generis quasi-judicial
authority."
221. The Hon'ble Supreme Court while considering the
provisions of Articles 14, 21, 32, 141, 142 and 144 of the
Constitution of India in the case of Vineet Narain and others -
vs- Union of India and others44, at paragraphs 38 39 40, 41, 42
and 43 has held as under:
"38. Section 3 of the Police Act, 1861 is in pari materia
with Section 4 of the Delhi Special Police Establishment
Act, 1946. These sections read as under:
Section 3 of the Police Act, 1861:
"3. Superintendence in the State
Government.--The superintendence of the
police throughout a general police district shall
vest in and shall be exercised by the State
Government to which such district is
subordinate, and except as authorised under
the provisions of this Act, no person, officer or
court shall be empowered by the State
(1998)1 SCC 226
Government to supersede or control any police
functionary."
Sections 3 and 4 of the Delhi Special Police
Establishment Act, 1946:
"3. Offences to be investigated by SPE.--The
Central Government may, by notification in the
Official Gazette, specify the offences or classes
of offences which are to be investigated by the
Delhi Special Police Establishment.
4. Superintendence and administration of
SPE.--(1) The superintendence of the Delhi
Special Police Establishment shall vest in the
Central Government.
(2) The administration of the said police
establishment shall vest in an officer appointed
in this behalf by the Central Government who
shall exercise in respect of that police
establishment such of the powers exercisable
by an Inspector General of Police in respect of
the police force in a State, as the Central
Government may specify in this behalf."
The meaning of the word "superintendence" in Section
4(1) of the Delhi Special Police Act, 1946 determines
the scope of the authority of the Central Government in
this context.
39. There can be no doubt that the overall
administration of the said force, i.e., CBI vests in the
Central Government, which also includes, by virtue of
Section 3, the power to specify the offences or class of
offences which are to be investigated by it. The general
superintendence over the functioning of the Department
and specification of the offences which are to be
investigated by the agency is not the same as and
would not include within it the control of the initiation
and the actual process of investigation, i.e., direction.
Once the CBI is empowered to investigate an offence
generally by its specification under Section 3, the
process of investigation, including its initiation, is to be
governed by the statutory provisions which provide for
the initiation and manner of investigation of the offence.
This is not an area which can be included within the
meaning of "superintendence" in Section 4(1).
40. It is, therefore, the notification made by the Central
Government under Section 3 which confers and
determines the jurisdiction of the CBI to investigate an
offence; and once that jurisdiction is attracted by virtue
of the notification under Section 3, the actual
investigation is to be governed by the statutory
provisions under the general law applicable to such
investigations. This appears to us the proper
construction of Section 4(1) in the context, and it is in
harmony with the scheme of the Act, and Section 3 in
particular. The word "superintendence" in Section 4(1)
cannot be construed in a wider sense to permit
supervision of the actual investigation of an offence by
the CBI contrary to the manner provided by the
statutory provisions. The broad proposition urged on
behalf of the Union of India that it can issue any
directive to the CBI to curtail or inhibit its jurisdiction to
investigate an offence specified in the notification issued
under Section 3 by a directive under Section 4(1) of the
Act cannot be accepted. The jurisdiction of the CBI to
investigate an offence is to be determined with
reference to the notification issued under Section 3 and
not by any separate order not having that character.
41. This view does not conflict with the decision in
J.A.C. Saldanha [(1980) 1 SCC 554 : 1980 SCC (Cri)
272] as earlier indicated. In Saldanha [(1980) 1 SCC
554 : 1980 SCC (Cri) 272] the question was whether an
unsatisfactory investigation already made could be
undertaken by another officer for further investigation
of the offence so that the offence was properly
investigated as required by law, and it was not to
prevent the investigation of an offence. The Single
Directive has the effect of restraining recording of FIR
and initiation of investigation and not of proceeding with
investigation, as in Saldanha [(1980) 1 SCC 554 : 1980
SCC (Cri) 272] . No authority to permit control of
statutory powers exercised by the police to investigate
an offence within its jurisdiction has been cited before
us except K. Veeraswami [(1991) 3 SCC 655 : 1991
SCC (Cri) 734] which we have already distinguished.
The view we take accords not only with reason but also
with the very purpose of the law and is in consonance
with the basic tenet of the rule of law.
42. Once the jurisdiction is conferred on the CBI to
investigate an offence by virtue of notification under
Section 3 of the Act, the powers of investigation are
governed by the statutory provisions and they cannot
be estopped or curtailed by any executive instruction
issued under Section 4(1) thereof. This result follows
from the fact that conferment of jurisdiction is under
Section 3 of the Act and exercise of powers of
investigation is by virtue of the statutory provisions
governing investigation of offences. It is settled that
statutory jurisdiction cannot be subject to executive
control.
43. There is no similarity between a mere executive
order requiring prior permission or sanction for
investigation of the offence and the sanction needed
under the statute for prosecution. The requirement of
sanction for prosecution being provided in the very
statute which enacts the offence, the sanction for
prosecution is a prerequisite for the court to take
cognizance of the offence. In the absence of any
statutory requirement of prior permission or sanction
for investigation, it cannot be imposed as a condition
precedent for initiation of the investigation once
jurisdiction is conferred on the CBI to investigate the
offence by virtue of the notification under Section 3 of
the Act. The word "superintendence" in Section 4(1) of
the Act in the context must be construed in a manner
consistent with the other provisions of the Act and the
general statutory powers of investigation which govern
investigation even by the CBI. The necessity of previous
sanction for prosecution is provided in Section 6 of the
Prevention of Corruption Act, 1947 (Section 19 of the
1988 Act) without which no court can take cognizance
of an offence punishable under Section 5 of that Act.
There is no such previous sanction for investigation
provided for either in the Prevention of Corruption Act
or the Delhi Special Police Establishment Act or in any
other statutory provision. The above is the only manner
in which Section 4(1) of the Act can be harmonised with
Section 3 and the other statutory provisions.
222. The Hon'ble Supreme Court while considering the
provisions of Section 3 of the Gujarath Lokayukta Act with regard to
public accountability, vigilance and prevention of corruption, in the
case of State of Gujarat and another -vs- Justice R.A. Mehta
(Retired) and others45, at paragraphs 85 to 89 has held as
under;
"85. Without reference to any constitutional provision
or any judgment of this Court referred to earlier, even if
we examine the statutory provisions of the Act, the
statutory construction itself mandates the primacy of
the opinion of the Chief Justice for the simple reason
that Section 3 provides for the consultation with the
Chief Justice. Section 6 provides for the removal of
Lokayukta and lays down the procedure for such
removal. The same can be done only on proven
misconduct in an inquiry conducted by the Chief
Justice/his nominee with respect to specific charges.
Section 8(3) further provides for recusal of the
Lokayukta in a matter where a public functionary has
(2013) 3 SCC 1
raised the objection of bias and whether such
apprehension of bias actually exists or not shall be
determined in accordance with the opinion of the Chief
Justice.
86. The purpose of giving primacy of opinion to the
Chief Justice is for the reason that he enjoys an
independent constitutional status, and also because the
person eligible to be appointed as Lokayukta is from
among the retired Judges of the High Court and the
Chief Justice is, therefore, the best person to judge
their suitability for the post. While considering the
statutory provisions, the Court has to keep in mind the
Statement of Objects and Reasons published in the
Gujarat Gazette (Extraordinary) dated 1-8-1986, as
here, it is revealed that the purpose of the Act is also to
provide for the manner of removal of a person from the
office of the Lokayukta and the Bill ensured that the
grounds for such removal are similar to those specified
for the removal of the Judges of the High Court.
87. As the Chief Justice has primacy of opinion in the
said matter, the non-acceptance of such
recommendations by the Chief Minister remains
insignificant. Thus, it clearly emerges that the
Governor, under Section 3 of the 1986 Act has acted
upon the aid and advice of the Council of Ministers.
Such a view is taken considering the fact that Section 3
of the 1986 Act does not envisage unanimity in the
consultative process.
88. Leaving the finality of choice of appointment to the
Council of Ministers would be akin to allowing a person
who is likely to be investigated to choose his own judge.
Additionally, a person possessing limited power cannot
be permitted to exercise unlimited powers.
89. However, in light of the facts and circumstances of
the case, it cannot be held that the process of
consultation was incomplete and was not concluded as
per the requirements of the 1986 Act."
223. The Hon'ble Supreme Court in the case of Ashwini
Kumar Upadhyay -vs- Union of India46, in respect of State of
Tamil Nadu, has observed as under:
"This Court by its judgment/order dated 27th
April, 2017 passed in Writ Petition (Civil) No.245 of
2014 [Common Cause: A Registered Society vs. Union
of India reported in (2017)7 SCC 158 had already
expressed the view that the appointment of Lokpal at
Writ Petition (Civil) No.684/2016 decided on 19.4.2018
the Center need not await the finalization of the
Amendment to the Central Act. In such circumstances,
we are constrained to observe that the stand taken by
the State of Tamil Nadu with regard to establishment of
the institution of Lokayukta on the grounds stated in
the affidavit is not acceptable. As the State is duty
bound under Section 63 of the Lokpal and Lokayuktas
Act, 2013 to bring in place the institution of Lokayukta
we direct the State to take necessary action in the
matter and report compliance of the progress made and
the stage reached on the next date fixed i.e. 10th July,
2018."
224. The Hon'ble Supreme Court while considering the
provisions of Section 15 of the KL Act and Section 17 of the PC Act
in the case of C. Rangaswamaiah and others -vs- Karnataka
Lokayukta and others47, at paragraphs 19, 20, 25, 26, 27 and
28 has held as under:
"19. We may first deal with the crucial question as to
whether the Director General of Police in the office of
the Lokayukta who is to supervise the work of the police
officers on deputation in the Lokayukta is independent
Supra at Footnote No.1
of the Lokayukta and is outside the administrative and
disciplinary control of the Lokayukta. We agree with the
Division Bench when it took the view, -- differing from
the learned Single Judge, -- that though the newly-
created post of Director General of Police in the office of
the Lokayukta was created on 21-12-1992 by an
administrative order and the relevant recruitment rules
of the staff of the Lokayukta were not amended to bring
the said post into the cadre under the Lokayukta, still
the said post created in the Lokayukta Police Wing was
intended to be and must be treated as part of the staff
of Lokayukta in the Police Wing. It is well settled that
administrative orders even creating posts can be issued
so long as they are not inconsistent with rules, that is to
say, as long as there is no prohibition in the statutory
rules for creation of such posts. The learned Single
Judge's view that the independence of the Lokayukta
was under threat was mainly based upon his decision
that the post of the Director General created on 21-12-
1992 was outside the control of the Lokayukta. This
view, in our opinion, is not correct for the reasons
mentioned above.
Therefore, while it is true that as per the notification
dated 21-11-1992 issued by the Government, the Police
Wing in the Lokayukta is to be under the general and
overall control of the said Director General of Police,
still, in our opinion, the said staff and, for that matter,
the Director General himself are under the
administrative and disciplinary control of the Lokayukta.
This result even if it is not achieved by the express
language of Section 15(4) is achieved by the very fact
that the Director General's post is created in the office
of the Lokayukta. By creating the said post of Director
General of Police in the office of the Lokayukta and
keeping the Police Wing therein under control and
supervision of the said Director General, the State of
Karnataka, in our opinion, did not intend to remove the
Police Wing or the said Director General from the
administrative and disciplinary jurisdiction of the
Lokayukta nor did the State intend to interfere with the
independent functioning of the Lokayukta and its police
staff. The modification of the earlier notification dated
2-11-1992 was, in our opinion, necessitated on account
of the creation of the post of the Director General in the
office of the Lokayukta. Nor was the notification
intended to divest the Lokayukta of its powers and to
vest the said powers only in the Director General. For
the aforesaid reasons, the memorandum dated 2-9-
1997 issued by the Lokayukta after the judgment of the
learned Single Judge has become redundant as held by
the Division Bench. Thus the main argument relating to
the threat to the independence of the Lokayukta which
appealed to the learned Single Judge stands rejected.
Point 2
20. 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?
25. In our view, if the State Government wants to
entrust such extra work to the officers on deputation
with the Lokayukta, it can certainly inform the
Lokayukta of its desire to do so. If the Lokayukta agrees
to such entrustment, there will be no problem. But if for
good reasons the Lokayukta thinks that such
entrustment of work by the State Government is likely
to affect its functioning or is likely to affect its
independence, it can certainly inform the State
Government accordingly. In case the State Government
does not accept the viewpoint of the Lokayukta, then it
will be open to the Lokayukta, -- having regard to the
need to preserve its independence and effective
functioning to take action under Section 15(4) [read
with Section 15(2)] and direct that these officers on
deputation in its Police Wing will not take up any such
work entrusted to them by the State Government. Of
course, it is expected that the State Government and
the Lokayukta will avoid any such unpleasant situations
but will act reasonably in their respective spheres.
26. But once the Lokayukta has, as in the present case,
not objected, -- at the threshold -- to such entrustment
of work by the State Government to the officers on
deputation, then it will not normally be reasonable for
the Lokayukta to object to the said entrustment when
these officers are halfway through the extra work. Such
withdrawal by the Lokayukta at a later stage might
create various administrative problems and will only
help the public servants against whom investigation is
being done to raise unnecessary legal issues. Of course,
in the present case, it is not the Lokayukta which has
raised any objection but it is the public servants --
against whom the investigation is going on -- who have
raised objections. As already stated, they cannot raise
objections if the Lokayukta has not raised any objection
at the threshold. The above, in our view, will take care
of the independence and effective working of the
Lokayukta and at the same time, will enable the State
of Karnataka if need be, to exercise its statutory powers
under Section 17 of the Prevention of Corruption Act,
1988.
27. In the matters before us, as already stated, there
has been no objection by the Lokayukta at the initial
stage of the entrustment of work under Section 17 of
the Central Act to these police officers on deputation. It
is therefore not possible to interdict the further
investigation by these officers at this stage at the
instance of the public servants. As stated above, if no
objection has come from the Lokayukta at the time of
initial entrustment, it is certainly not permissible for the
public servants against whom the investigation is being
done, to raise objection. The Division Bench was right in
holding that the memorandum dated 2-9-1997 issued
by the Lokayukta is, in fact, purely consequential to the
judgment of the learned Single Judge and in declaring
the same to be invalid and also redundant.
28. We may, however, add that if instead of deputation
of police officers from the Government, any other
solution can be found, that is a matter to be decided
amicably between the State Government and the
Lokayukta, -- keeping in view the independence of the
Lokayukta and its effective functioning as matters of
utmost importance."
225. The Hon'ble Suprme Court while considering the
provisions of Section 3(3) and Section 8A(2) of the Commissions of
Inquiry Act and Section 21 of the General Clauses Act in the case of
State of M.P. -vs- Ajay Singh and others48, at paragraph-17
held as under:
"17. The Commissions of Inquiry Act, 1952 was
enacted to provide for the appointment of Commissions
of Inquiry and for vesting such commissions with
certain powers. Section 2 of the Act contains definitions.
Section 3 provides for appointment of a Commission of
Inquiry. Sub-section (1) of Section 3 lays down that a
Commission of Inquiry for the purpose of making an
inquiry into any "definite matter of public importance"
may be appointed by the appropriate Government if it is
of opinion that it is necessary so to do and shall make
such an appointment if a resolution in this behalf is
passed by each House of Parliament or, as the case
may be, the Legislature of the State, by notification in
the official Gazette. Sub-section (2) of Section 3 says
that the Commission may consist of one or more
members appointed by the appropriate Government,
and where the number is more than one, one of them
may be appointed as the Chairman. Sub-section (3) of
Section 3 enables the appropriate Government to fill
any vacancy which may arise in the office of a member
(1993)1 SCC 302: AIR 1993 SC 825
of the Commission whether consisting of one or more
than one member, at any stage of an inquiry. Sub-
section (4) of Section 3 requires the appropriate
Government to cause to be laid before each House of
Parliament or, as the case may be, the legislature of the
State, the report, if any, of the Commission of Inquiry
together with a memorandum of the action taken
thereon, within a period of six months from the
submission of the report by the Commission to the
appropriate Government. Section 4 prescribes that the
Commission shall have the powers of a civil court while
trying a suit under the Code of Civil Procedure in
respect of the matters mentioned therein. Section 5
deals with the additional powers of the Commission.
Section 5-A relates to the power of the Commission for
conducting investigation pertaining to ∼ inquiry. Section
5-B deals with the power of the Commission to appoint
assessors. Section 6 provides for the manner of use of
the statements made by persons to the Commission.
Section 6-A provides that some persons are not obliged
to disclose certain facts. Section 7 deals with the
manner in which a Commission of Inquiry appointed
under Section 3 ceases to exist in case its continuance
is unnecessary. It provides for a notification in the
official Gazette by the appropriate Government
specifying the date from which the Commission shall
cease to exist if it is of the opinion that the continued
existence of the Commission is unnecessary. Where a
Commission is appointed in pursuance of a resolution
passed by the Parliament or, as the case may be, the
Legislature of the State, then a resolution for the
discontinuance of the Commission is also to be passed
by it. Section 8-A provides that the inquiry is not to be
interrupted by reason of vacancy or change in the
constitution of the Commission and it shall not be
necessary for the Commission to commence the inquiry
afresh and the inquiry may be continued from the stage
at which the change took place. Section 8-B prescribes
that persons likely to be prejudicially affected by the
inquiry must be heard. Section 8-C deals with the right
of cross-examination and representation by legal
practitioner of the appropriate Government, every
person referred to in Section 8-B and, with the
permission of the Commission, any other person whose
evidence is recorded by the Commission. Sections 9, 10
and 10-A relate to ancillary matters while Section 12
contains the rule-making power of the appropriate
Government. Section 11 provides that the Act is to
apply to other inquiring authorities in certain cases and
where the Government directs that the said provisions
of this Act shall apply to that authority and issues such
a notification, that authority shall be deemed to be a
Commission appointed under Section 3 for the purposes
of this Act. Admittedly, it is by virtue of Section 11 that
the Commission of Inquiry appointed in the present
case is deemed to be a Commission appointed under
Section 3 for the purposes of this Act because the
Commission was constituted by a resolution of the
Government pursuant to the direction of the M.P. High
Court in the writ petition filed in public interest by
Kailash Joshi as indicated earlier. For the purposes of
this case, the material provisions of the enactment are
Sections 3, 7 and 8-A apart from Section 21 of the
General Clauses Act, 1897 with reference to which the
rival contentions were made. These provisions are as
under:
The Commissions of Inquiry Act, 1952
"3. Appointment of Commission.-- (1) The
appropriate Government may, if it is of opinion that it is
necessary so to do, and shall, if a resolution in this
behalf is passed by each House of Parliament or, as the
case may be, the Legislature of the State, by
notification in the Official Gazette, appoint a
Commission of Inquiry for the purpose of making an
inquiry into any definite matter of public importance
and performing such functions and within such time as
may be specified in the notification, and the
Commission so appointed shall make the inquiry and
perform the functions accordingly:
Provided that where any such Commission has been
appointed to inquire into any matter--
(a) by the Central Government, no State
Government shall, except with the approval of
the Central Government, appoint another
Commission to inquire into the same matter for
so long as the Commission appointed by the
Central Government is functioning;
(b) by a State Government, the Central
Government shall not appoint another
Commission to inquire into the same matter for
so long as the Commission appointed by the
State Government is functioning, unless the
Central Government is of opinion that the
scope of the inquiry should be extended to two
or more States.
(2) The Commission may consist of one or more
members appointed by the appropriate Government,
and where the Commission consists of more than one
member, one of them may be appointed as the
Chairman thereof.
(3) The appropriate Government may, at any stage
of an inquiry by the Commission fill any vacancy which
may have arisen in the office of a member of the
Commission (whether consisting of one or more than
one member).
(4) The appropriate Government shall cause to be
laid before each House of Parliament or, as the case
may be, the Legislature of the State, the report, if any,
of the Commission on the inquiry made by the
Commission under sub-section (1) together with a
memorandum of the action taken thereon, within a
period of six months of the submission of the report by
the Commission to the appropriate Government.
7. Commission to cease to exist when so notified.--
(1) The appropriate Government may, by notification
in the Official Gazette, declare that--
(a) a Commission (other than a Commission
appointed in pursuance of a resolution passed
by each House of Parliament or, as the case
may be, the Legislature of the State) shall
cease to exist, if it is of opinion that the
continued existence of the Commission is
unnecessary;
(b) a Commission appointed in pursuance of a
resolution passed by each House of Parliament
or, as the case may be, the Legislature of the
State, shall cease to exist if a resolution for the
discontinuance of the Commission is passed by
each House of Parliament or, as the case may
be, the Legislature of the State.
(2) Every notification issued under sub-section (1)
shall specify the date from which the Commission shall
cease to exist and on the issue of such notification, the
Commission shall cease to exist with effect from the
date specified therein.
8-A. Inquiry not to be interrupted by reason of
vacancy or change in the constitution of the
Commission.-- (1) Where the Commission consists of
two or more members, it may act notwithstanding the
absence of the Chairman or any other member of any
vacancy among its members.
(2) Where during the course of an inquiry before a
Commission, a change has taken place in the
constitution of the Commission by reason of any
vacancy having been filled or by any other reason, it
shall not be necessary for the Commission to commence
the inquiry afresh and the inquiry may be continued
from the stage at which the change took place."
The General Clauses Act, 1897
"21. Power to issue, to include power to add to,
amend, vary or rescind, notifications, orders, rules or
bye-laws.-- Where, by any Central Act or Regulation, a
power to issue notifications, orders, rules or bye-laws is
conferred, then that power includes a power,
exercisable in the like manner and subject to the like
sanction and conditions (if any) to add to, amend, vary
or rescind any notifications, orders, rule or bye-laws so
issued."
226. The Hon'ble Supreme Court while considering the
provisions of Section 3(1)(a), 7 and 2(h) of the Orissa Lokpal and
Lokayuktas Act, 1995 in the case of Justice K.P. Mohapatra -vs-
Sri ram Chandra Nayak and others49, at paragraphs 11 and 12
has held as under:
(2002)8 SCC 1
"11. Further, Section 4(1) inter alia provides that
Lokpal or Lokayukta should not be connected with any
political party. In any case, if he is connected, he is
required to sever the connection on being appointed to
the said post. That means, he must be an independent
non-political person. Under Section 7, Lokpal has inter
alia to investigate any action which is taken by or with a
general or specific approval of the Chief Minister or a
Minister or a Secretary, in a 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 Lokpal, the subject of a grievance
or an allegation. The word "Minister" is defined under
Section 2(i) to mean a member of the Council of
Ministers and includes the Chief Minister, Deputy Chief
Minister, a Minister of State, a Deputy Minister and the
Leader of the Opposition or a Parliamentary Secretary.
12. In context of the aforesaid functions of the Lokpal
and the required qualification of a person who is to be
appointed to hold such office, the word "consultation"
used in Section 3 is required to be interpreted. As
provided under Section 3, a person is not qualified to be
appointed as Lokpal unless he is or has been a Judge of
the Supreme Court or of a High Court. In the context of
the functions which are to be discharged by the Lokpal,
it is apparent that they are of utmost importance in
seeing that unpolluted administration of the State is
maintained and maladministration as defined under
Section 2(h) is exposed so that appropriate action
against such maladministration and administrator could
be taken. The investigation which Lokpal is required to
carry out is that of quasi-judicial nature which would
envisage not only knowledge of law, but also of the
nature and work which is required to be discharged by
an administrator. In this context, the word
"consultation" used in Section 3(1) proviso (a) would
require that consultation with the Chief Justice of the
High Court of Orissa is a must or a sine qua non. For
such appointment, the Chief Justice of the High Court
would be the best person for proposing and suggesting
such person for being appointed as Lokpal. His opinion
would be totally independent and he would be in a
position to find out who is most or more suitable for the
said office. In this context, primacy is required to be
given to the opinion of the Chief Justice of the High
Court. It is true that proviso (a) provides that Leader of
the Opposition, if there is any, is also required to be
consulted. Therefore, if there is no Leader of the
Opposition, consultation is not required. This would
indicate the nature of such consultation and which is to
apprise him of the proposed action but his opinion is not
binding on the Government. At the same time, his
views or objections are to be taken into consideration.
If something is adverse against the person proposed by
the Government, he would be entitled to express his
views and point it out to the Government. This,
however, would not mean that he could suggest some
other name and the Government is required to consider
it. It would, therefore, be open to the Government to
override the opinion given by the Leader of the
Opposition with regard to the appointment of a Lokpal
who is statutorily required to be a sitting or retired
Judge of the Supreme Court or of a High Court. Under
Section 3(1) of the Act, there is no question of initiation
of proposal by the Leader of the Opposition."
(Underline supplied)
227. The Hon'ble Supreme Court while considering with
regard to Police reforms and measures to insulate Police machinery
from political/executive interference, in the case of Prakash Singh
and others -vs- Union of India and others50, at paragraphs 19,
22, 26 and 29 has held as under:
(2006)8 SCC 1
"19. In the above noted letter dated 3-8-1997 sent to
all the State Governments, the Home Minister while
echoing the overall popular perception that there has
been a general fall in the performance of the police as
also a deterioration in the policing system as a whole in
the country, expressed that time had come to rise
above limited perceptions to bring about some drastic
changes in the shape of reforms and restructuring of
the police before the country is overtaken by unhealthy
developments. It was expressed that the popular
perception all over the country appears to be that many
of the deficiencies in the functioning of the police had
arisen largely due to an overdose of unhealthy and
petty political interference at various levels starting
from transfer and posting of policemen of different
ranks, misuse of police for partisan purposes and
political patronage quite often extended to corrupt
police personnel. The Union Home Minister expressed
the view that rising above narrow and partisan
considerations, it is of great national importance to
insulate the police from the growing tendency of
partisan or political interference in the discharge of its
lawful functions of prevention and control of crime
including investigation of cases and maintenance of
public order.
22. For separation of investigation work from law and
order even the Law Commission of India in its 154th
Report had recommended such separation to ensure
speedier investigation, better expertise and improved
rapport with the people without of course any
watertight compartmentalisation in view of both
functions being closely interrelated at the ground level.
26. Having regard to (i) the gravity of the problem; (ii)
the urgent need for preservation and strengthening of
the rule of law; (iii) pendency of even this petition for
the last over ten years; (iv) the fact that various
commissions and committees have made
recommendations on similar lines for introducing
reforms in the police set-up in the country; and (v) total
uncertainty as to when police reforms would be
introduced, we think that there cannot be any further
wait, and the stage has come for issuing of appropriate
directions for immediate compliance so as to be
operative till such time a new model Police Act is
prepared by the Central Government and/or the State
Governments pass the requisite legislations. It may
further be noted that the quality of the criminal justice
system in the country, to a large extent, depends upon
the working of the police force. Thus, having regard to
the larger public interest, it is absolutely necessary to
issue the requisite directions. Nearly ten years back, in
Vineet Narain v. Union of India [(1998) 1 SCC 226 :
1998 SCC (Cri) 307] this Court noticed the urgent need
for the State Governments to set up the requisite
mechanism and directed the Central Government to
pursue the matter of police reforms with the State
Governments and ensure the setting up of a mechanism
for selection/appointment, tenure, transfer and posting
of not merely the Chief of the State Police but also all
police officers of the rank of Superintendents of Police
and above. The Court expressed its shock that in some
States the tenure of a Superintendent of Police is for a
few months and transfers are made for whimsical
reasons which has not only demoralising effect on the
police force but is also alien to the envisaged
constitutional machinery. It was observed that apart
from demoralising the police force, it has also the
adverse effect of politicising the personnel and,
therefore, it is essential that prompt measures are
taken by the Central Government.
29. The preparation of a model Police Act by the
Central Government and enactment of new Police Acts
by the State Governments providing therein for the
composition of the State Security Commission are
things, we can only hope for the present. Similarly, we
can only express our hope that all State Governments
would rise to the occasion and enact a new Police Act
wholly insulating the police from any pressure
whatsoever thereby placing in position an important
measure for securing the rights of the citizens under the
Constitution for the rule of law, treating everyone equal
and being partisan to none, which will also help in
securing an efficient and better criminal justice delivery
system. It is not possible or proper to leave this matter
only with an expression of this hope and to await
developments further. It is essential to lay down
guidelines to be operative till the new legislation is
enacted by the State Governments."
228. It is also not in dispute that the Lokpal and the
Lokayukta Act, 2013 enacted by the Parliament has provided for the
establishment of the body of the Lokpal for the Union and
Lokayukta for States to inquire into allegations of corruption against
certain public functionaries and for matters connected therewith or
incidental thereto. The provisions of the said Act provide for
establishment of a separate inquiry and Prosecution Wing and for
filing of cases in accordance with the findings arrived at. The
provisions of Section 63 of the Lokpal and Lokayuktas Act requires
every State to establish a body to be known as the Lokayukta for
the State, if not so established, constituted or appointed by a law
made by the State Legislature, to deal with complaints relating to
corruption against certain public functionaries. Though it is not so
expressly provided, but such Lokayukta is expected to have the
same powers as, the Lokpal. Further, though the Legislature of
Karnataka had prior thereto established the Lokayukta in the year
1986 and from 1986 till 14.3.2016, the date of passing the
impugned executive order, the Lokayukta dealt with the complaints
relating to corruption against certain public functionaries, but the
said Lokayukta does not have the same powers as the Lokpal under
the Lokpal Act, 2013. Yet further, the provisions of Section 63
required the State Legislature to make such an enactment within
one year from the date of commencement of the Lokpal Act, 2013
Act. Therefore, it is high time for the State Government to provide
for establishment of a separate Inquiry and Prosecution Wing and
for filing of cases in accordance with the findings arrived at. On
that ground also the impugned executive order cannot be
sustained.
229. In the light of the settled legal position, it is not possible
to accede to the submission of the learned Advocate General that
the Lokayukta has no power to call for records in a preliminary
inquiry. The exercise of calling for the records was to satisfy that
there was a prima facie case to proceed with. The objections raised
by the State Government, in view of the executive order, are purely
technical and the contention of the State Government that they are
withdrawing extra powers assigned to Lokayukta by virtue of the
executive order, might seriously impede the statutory and
independent functioning of the Lokayukta under the KL Act. The
nature of proceedings conducted by the Lokayukta or Upa-
Lokayukta are altogether different from a civil and criminal lis.
Unlike civil or criminal proceedings, a citizen making allegations
against a public functionary may not be in possession of complete
facts or documents, unless the allegation arises out of his personal
transaction with any public functionary. The powers conferred on
the Lokayukta are advisedly very wide and these powers are wider
than of any court of law. Notwithstanding remedies to be found in
courts of law and in statutory appeals against administrative
decisions, there still remains a gap in the machinery for the
redressal of grievances of the individuals against administrative
acts or omissions. This gap should be filled by an authority which
is able to act more speedily, informally and with a greater regard to
the individual justice of a case than is possible by ordinary legal
process of the Courts, it should not be regarded as a substitute for,
or rival to, the Legislature or to the Courts, but as a necessary
supplement to their work, using weapons of persuasion,
recommendation and publicity rather than compulsion. The fight
between an individual citizen and the State is unequal in nature.
Therefore, the very existence of Lokayukta institution will act as a
check and will be helpful in checking the canker of corruption and
maladministration. Moreso, when it has been repeatedly asserted
that the canker of corruption, in the proportions it is said to have
attained, may well dig into the vitals of our democratic State, and
eventually destroy it. (As stated in the book called, 'Corruption-
Control of Maladministration' by John D. Monteiro).
230. The provisions of KL Act, which is enacted for the
eradication of the evil of corruption and maladministration must be
construed liberally so as to advance the remedy. In our opinion,
there is absolutely no merit in the impugned executive order passed
by the State Government, in exercise of the powers under the
provisions of Article 162 of the Constitution of India and the
impugned order cannot be sustained. It is also not in dispute that
before enacting the KL Act, public opinion has been agitated for a
long time over the prevalence of corruption in the administration
and it is likely that cases coming up before the independent
authorities like Lokayukta or Upa-Lokayukta might involve
allegations or actual evidence of corrupt motive and favouritism.
We think that the institution of Lokayukta should deal with such
cases as well.
231. It is also relevant to refer to the main features of the
institutions of Lokpal and Lokayukta, which are as under:
a) They should be demonstrably independent and
impartial.
b) Their investigations and proceedings should be
conducted in private and should be informal in
character.
c) Their appointment should, as far as possible, be
non-political.
d) Their status should compare with the highest
judicial functionaries in the country.
e) They should deal with matters in the discretionary
field involving acts of injustice, corruption or
favouritism.
f) Their proceedings should not be subject to judicial
interference and they should have the maximum
latitude and powers in obtaining information
relevant to their duties.
g) They should not look forward to any benefit or
pecuniary advantage from the executive
Government.
232. We have no doubt that the working of the Institution of
Lokayukta in Karnataka will be watched with keen expectation and
interest by the other states in India. We hope that this aspect
would also be fully borne in mind by Government in considering the
urgency and importance of the independence of the Lokayukta. A
Lokayukta is to function as a sentinel to ensure a corruption free
administration.
233. As already stated supra, the object of the KL Act and PC
Act was to achieve common object and goal of corruption free
society. Common man has immense faith in the institution of
Karnataka Lokayukta and also its Police Wing, that too after
handling investigating relating to mining scam. Earlier, the
common man could have filed the complaint against anybody to set
the law into motion under the PC Act and there was no bureaucratic
impediment or decision required to initiate the proceedings against
a complaint. However, ACB was set up abruptly with an intention
to take control of the pending investigations against the high
functionaries of the State, Bureaucrats etc., In order to protect
and scuttle the investigation against political class and bureaucrats,
Government Order dated 14.3.2016 came to be issued constituting
ACB as authority for investigation under the PC Act, thereby the
very purpose of KL Act was indirectly defeated. As per the
provisions of the Code of Criminal Procedure, the complainant
himself should not be an Investigating Officer. As per the
impugned executive order, if any complaint filed as against the
Chief Minister or the Minister in the Council of Ministers, the Chief
Minister himself has to oversee the investigation and also permit
investigation, thereby the impugned executive order is opposed to
the rule of law and contrary to the dictum of the Hon'ble Supreme
Court in the case of C. Rangaswamaiah51. The impugned
Government Order constituting ACB empowers the Hon'ble Chief
Minister to veto investigation or the sanction of investigation. This
itself defeats the very purpose of the Anti Corruption Drive and ACB
is not at all an independent body. The Police force of ACB works
under the authority of the Hon'ble Chief Minister and any
independent investigation is only a mirage. No serving officers
would be in a position to conduct an enquiry against the Hon'ble
Chief Minister under whom they would be working as subordinates.
Therefore by the constitution of ACB, the basic investigation
apparatus/mechanism is dysfunctional. The ACB is constituted
virtually to defeat the very purpose of PC Act itself. The State is
bent upon saving its corrupt Ministers and Officers and therefore
the impugned Government Order and subsequent supporting
Supra at Footnote No.1
notifications are contrary to the very object of the KL Act. The
constitution of ACB is one without authority of law and though it
purports to create an independent wing, it is controlled by the
Hon'ble Chief Minister. Thus, the Lokayukta Police Force is virtually
abolished by creation of ACB. The State Government issued the
impugned Government Order constituting ACB on an erroneous
understanding of the judgment of the Hon'ble Supreme Court of
India in the case of C. Rangaswamaiah52. In fact the said
judgment curtails the power of the State Government to constitute
ACB or any alternative mode of investigating agency and interfere
with the functioning of the Lokayukta. The statutory powers
assigned to Lokayukta and Upa-Lokayukta under the provisions of
the KL Act cannot be diluted by the executive orders passed by the
State Government under Article 162 of the Constitution of India.
After the constitution of ACB by way of executive order, the State
Government issued notifications dated 19.3.2016, thereby
superseding the earlier notifications dated 6.2.1991, 8.5.2002 and
5.12.2002 that authorized the Lokayukta Police with powers to
Supra at Footnote No.1
investigate and had declared the offices of Police Wing of Lokayukta
as Police Stations.
234. The ACB is established by means of an executive order,
which has no legs to stand and the ACB cannot perform the duty of
the police unless it is established by means of a statute. The
constitution of ACB itself is shaky, oppose to the provisions of law
and cannot perform the duty of the police. The police wing is an
independent investigating agency and though ACB purports to
create an independent wing, it is controlled by the Hon'ble Chief
Minister i.e., control of political executive. The ACB cannot
constitute an independent police force when already the field is
occupied by the Karnataka Police Act, 1963. A Police Officer who
is working under the control of the Home Department or State while
being investigating officer under ACB cannot be expected to
conduct a fair and impartial investigation in relation to high ranking
public servants and it is likely to be insulated from such influence.
235. For the reasons stated above, the impugned
Government Order dated 14.03.2016 constituting ACB, notifications
dated 19.03.2016 and all subsequent notifications issued pursuant
to the Government Order dated 14.03.2016 for the purpose of
formation and working of the ACB, are liable to be quashed.
Consequently, Anti Corruption Bureau is liable to be abolished. But,
all inquiries, investigations and other disciplinary proceedings
pending before the ACB will get transferred to the Lokayukta. To
be specific, the proceedings in respect of some of the private
petitioners which are pending before the ACB will get transferred to
the Lokayukta and the said petitioners cannot escape from the
clutches of law and they have to face the proceedings before the
Police Wing of the Karnataka Lokayukta, who shall proceed in
accordance with law.
236. Before parting with the matter, we deem it proper to
observe that in order to eradicate corruption, keeping in view the
object of the KL Act and in the interest of justice for public at large,
we request the constitutional authorities as contemplated under the
provisions of Section 3(2)(a) and 3(2)(b) of the KL Act to take
conscious and unanimous decision to recommend persons with
track record of integrity, competence and fair, both on the public
and personal life, to the posts of Lokayukta and Upa-Lokayuktas
uninfluenced by caste, creed etc., and maintain transparency in the
appointment. The appointment should be non-political and the
posts of Lokayukta and Upa-Lokayukta should not be
accommodation centre for anybody.
XVI. Recommendations
237. In view of the above discussion, we are of the
considered opinion to make following recommendations to the State
Government:
a) There is immediate necessity for amending
Section 12(4) of the Karnataka Lokayukta Act,
1984 to the effect that once the recommendation
made by Lokayukta under Section 12(3) of the KL
Act, the same shall be binding on the
Government.
b) The Police Wing of Karnataka Lokayukta shall be
strengthened by appointing/deputing honest
persons with track record of integrity and
fairness.
c) The Police Personnel, who at present working in
Anti Corruption Bureau shall be
transferred/deputed to the Karnataka Lokayukta
Police Wing, in order to strengthen the existing
Police Wing of Lokayukta and to enable them to
prosecute and investigate the matters effectively.
The officers/officials, who at present working in
the ACB hereinafter shall be under the
administrative and exclusive disciplinary control of
Lokayukta.
d) The officers and officials, who assist the
Lokayukta and Upa-Lokayuktas in discharge of
their functions shall not be transferred for a
minimum period of three years, without the
consent of Lokayukta/Upa-Lokayukta, as the case
may be.
e) The investigation once started shall be completed
within the reasonable period. In case any
proceedings are pending before the Lokayukta or
Upa-Lokayuktas on account of pendency of the
matters before the Courts, necessary steps shall
be taken for early disposal of the matters before
the Courts.
XVII. Conclusion
238. On appreciation of the entire material placed on record
and in the light of the judgments of the Hon'ble Supreme Court
cited supra, we answer the points raised in these writ petitions as
under:
i) The 1st point is answered in the negative holding
that the State Government is not justified in
constituting Anti Corruption Bureau by an
executive Government Order No.DPAR 14 SELOYU
2016, Bengaluru dated 14.3.2016, in exercise of
powers under Article 162 of the Constitution of
India, when the Karnataka Lokayukta Act, 1984
has occupied the field to eradicate the corruption
in the State of Karnataka, in the facts and
circumstances of the case.
ii) The 2nd point is answered in the negative holding
that the State Government is not justified in
issuing the impugned notifications dated
19.3.2016 superseding the earlier notifications
dated 6.2.1991, 8.5.2002 and 5.12.2002 that
authorized the Lokayukta Police with powers to
investigate under the provisions of Prevention of
Corruption Act, 1988 and had declared the offices
of Police Wing of Lokayukta as Police Stations
under the provisions of Section 2(s) of the Code
of Criminal Procedure. All subsequent notifications
issued pursuant to the impugned Government
Order dated 14.3.2016 for the purpose of
formation and working of ACB, are also liable to
be quashed.
XVIII. Result
239. In view of the above, we pass the following order:
1) (a) W.P. No.21468/2016 (PIL) by the Advocates
Association, Bengaluru;
(b) W.P. 19386/2016 (PIL) by Mr. Chidananda
Urs B.G., Advocate; and
(c) W.P. No.23622/2016 (PIL) by 'Samaj
Parivarthana Samudaya'
are hereby allowed.
2) The impugned Government No.DPAR 14 SELOYU
2016, Bengaluru dated 14.3.2016 creating ACB, is
hereby quashed.
3) The impugned notifications -
(a) No.HD 71 PoSiPa(i) Bengaluru, dated
19.3.2016
(b) No.HD 71 PoSiPa(ii)2016 Bengaluru, dated
19.3.2016
(c) No.HD 71 PoSiPa(iii) 2016 Bengaluru,
dated 19.3.2016
(d) No.HD 71 PoSiPa(iv) 2016 Bengaluru,
dated 19.3.2016
issued by the State Government superseding the
earlier notifications dated 6.2.1991, 8.5.2002 and
5.12.2002, are hereby quashed. All subsequent
notifications issued pursuant to the Government
Order dated 14.3.2016 for the purpose of
formation and working of Anti Corruption Bureau,
are also hereby quashed.
4) The notifications dated 6.2.1991, 8.5.2002 and
5.12.2002 that authorized the Lokayukta Police
with powers to investigate under the provisions of
Prevention of Corruption Act, 1988 and had
declared the offices of Police Wing of Lokayukta
as Police Stations under Section 2(s) of the Code
of Criminal Procedure, are hereby restored.
5. (a) W.P. No.16222/2017 filed by Mr. K.T.
Nagaraja;
(b) W.P. 16223/2017 by Mr. Kale Gowda;
(c) W.P. No.16697/2017 by Sri Sidharth Bhupal
Shingadi;
(d) W.P.No.16703/2017 by Mr. Basavaraju and
others;
(e) W.P. No.16862/2017 by Mr. Deepak Kumar
H.R.;
(f) W.P. No.28341/2017 by Mr.
Channabasavaradhya;
(g) W.P. 108010/2017 by Mr. Prakash
Hasaraddi;
(h) W.P. No.108689/2017 by Mr. Basavaraj @
Sachin;
(i) W.P.No.108690/2017 by Mr. Shankar
Ramachandra Ambure;
(j) W.P. No..22851/2018 by Mr. Hemesha
S.M.;
(k) W.P. No.9147/2019 by Mr. T.N.
Rangaswamy; and
(l) W.P. No.18042/2019 by Mr. K.C. Yathish
Kumar,
which are filed in personal interest are
accordingly disposed off, in view of quashing of
the Government Order dated 14.3.2016 in PILs
stated supra.
6) Since this Court quashed the impugned
Government Order dated 14.3.2016 and the
impugned Government Notifications dated
19.3.2016, the Anti Corruption Bureau is
abolished. But all inquiries, investigations and
other disciplinary proceedings pending before the
ACB will get transferred to the Lokayukta.
However, all inquiries, investigations, disciplinary
proceedings, orders of convictions/acquittals and
all other proceedings held by ACB till today, are
hereby saved and the Police Wing of Karnataka
Lokayukta shall proceed from the stage at which
they are pending as on today, in accordance with
law.
7) Consequently, the proceedings in respect of some
of the private petitioners which are pending
before the ACB, will get transferred to the
Lokayukta and the said petitioners cannot escape
from the clutches of law and they have to face the
proceedings before the Police Wing of the
Karnataka Lokayukta, who shall proceed in
accordance with law.
8) In crafting this judgment, the erudition of the
learned counsel for the parties, their industry,
vision and above all, dispassionate objectivity in
discharging their role as officers of the Court must
be commended. We acknowledge the valuable
assistance rendered by Sri Ravi B. Naik, learned
senior counsel for Sri K.B. Monesh Kumar,
advocate; Sri V. Lakshminarayana, learned senior
counsel/amicus curiae; Sri M.S. Bhagwat, learned
senior counsel for Sri Satish .K, advocate; Sri
D.L. Jagadeesh, learned senior counsel a/w Smt.
Rakshitha D.J.; Sri Basavaraj S., learned senior
counsel for Sri Gowtham A.R.; Sri Sharath S.
Gowda and Sri C.V. Sudhindra, learned counsel
for the petitioners in these writ petitions so also
Sri Prabhuling K. Navadgi, learned Advocate
General a/w Sri V. Sreenidhi, AGA and Sri Kiran
Kumar, learned HCGP for the respondent/State;
Sri Ashok Haranahalli, learned senior counsel a/w
Sri Venkatesh S. Arabatti, Spl. PP and Sri B.S.
Prasad, learned counsel for the
respondent/Lokayukta; and Sri P.N. Manmohan,
learned counsel for respondent/ACB. We place on
record their valuable services.
240. The Registry is directed to send a copy of this Order to
the Chief Secretary to the Government, State of Karnataka,
forthwith for taking necessary steps.
Sd/-
JUDGE
Sd/-
JUDGE
Gss*
