P V Vishwantha Reddy vs The Stae By Acb P S Kolar
2022 Latest Caselaw 11108 Kant

                             1



         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

             DATED THIS THE 26TH DAY OF JULY, 2022

                            BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              CRIMINAL PETITION No.6834 OF 2020

BETWEEN:

P.V. VISHWANATHA REDDY
S/O LATE CHINNA VENKATARAMANAPPA
AGED ABOUT 55 YEARS
GRADE II SECRETARY
IN CHARGE PDO
NELAVANKI GRAMA PANCHAYAT
AT PRESENT
GRADE - II SECRETARY,
GOWNPALLI GRAMA PANCHAYATH
SRINIVASAPURA TALUK
KOLAR DISTRICT - 563 135.
                                                ... PETITIONER
(BY SRI RAHUL S.REDDY, ADVOCATE)

AND:

1.     THE STAE BY ACB P.S, KOLAR
       REP. BY SPP
       HIGH COURT OF KARNATAKA
       BENGALURU - 560 001.

2.     SRI N.NARAYANASWAMY
       S/O. NAREPPA,
       AGED ABOUT 52 YEARS
       SOCIAL WORKER
       R/AT BEFORE GOVT. JUNIOR COLLEGE,
       M.B.ROAD, SRINIVASAPURA TOWN
                               2



     SRINIVASAPURA TALUK,
     KOLAR DISTRICT - 563 135.
                                                ... RESPONDENTS

(BY SRI MANMOHAN P.N., SPL.P.P.FOR R1;
    SRI H.R.NARAYANASWAMY, ADVOCATE FOR R2)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR IN CR.NO.6/2020
REGISTERED BY THE 1st RESPONDENT POLICE FOR THE OFFENCE
P/U/S.13(1)(2) OF PREVENTION OF CORRUPTION ACT AND
U/S.465, 467, 468, 471 OF IPC BEFORE THE COURT OF THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE AND SPECIAL COURT
ANTI CORRUPTION AT KOLAR.


     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 29.06.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-



                             ORDER

The petitioner is before this Court calling in question

proceedings in PCR No.4 of 2020 and registration of crime in Crime

No.6/2020 before the 1st respondent/Anti Corruption Bureau ('ACB')

for offences punishable under Sections 13(1) & (2) of the

Prevention of Corruption Act, 1988 and Sections 465, 467, 468 and

471 of the IPC.

2. Heard Sri Rahul S. Reddy, learned counsel for the

petitioner; Sri P.N. Manmohan, learned Special Public Prosecutor for

respondent No.1 and Sri H.R.Narayanaswamy, learned counsel for

respondent No.2.

3. Brief facts that led the petitioner to this Court in the

subject petition, as borne out from the pleadings, are as follows:-

The petitioner is an employee of the Department of Rural

Development and Panchayat Raj in the cadre of Panchayat

Development Officer. Alleging that the petitioner amassed wealth in

Mahatma Gandhi National Rural Employment Guarantee Scheme

('MGNREG Scheme' for short) of every Gram Panchayath that came

under his control wherein 60% of the money had to be spent on

labourers towards salary who have job cards and 40% to be paid to

the vendors who supplied materials and that the petitioner has

caused loss/misappropriation of funds to the tune of

Rs.1,49,86,495.50. On the basis of the said allegation two

proceedings were initiated against the petitioner - one on the

departmental side by issuing a charge sheet and appointment of an

inquiry officer to inquire into these allegations and the other setting

the criminal law in motion by registering crime in Crime No.40 of

2016 for offences punishable under Sections 406, 408, 409 and 420

r/w 34 of the IPC. The issue in the case at hand is not with regard

to Crime No.40 of 2016 or the departmental inquiry.

4. After about 4 years of initiation of departmental inquiry

and the aforesaid crime in Crime No.40 of 2016, the 2nd

respondent/complainant, a stranger, claiming to be a social worker

registers a private complaint in P.C.R.No.4 of 2020 alleging those

very allegations that are made in the earlier two proceedings - one

crime in Crime No.40 of 2016 and the other of departmental

inquiry. The learned Special Judge on the registration of the

complaint directs investigation to be conducted under Section

156(3) of the Cr.P.C. The result of the direction to conduct

investigation is the registration of crime by the 1st respondent/ACB

in Crime No.6/2020. It is the registration of this crime that drives

the petitioner to this Court in the subject petition.

5. The learned counsel appearing for the petitioner would

contend with vehemence that the complainant is a stranger, he has

no locus to register a criminal complaint and the learned Special

Judge could not have directed investigation into the matter without

verifying whether the complaint was in compliance with law. On

the very same set of facts two proceedings are already pending

consideration at the hands of the concerned Court and the

Disciplinary Authority, and therefore, it would be a repetition of

registration of crime that too by a stranger.

6. On the other hand, learned Special Public Prosecutor for

the 1st respondent would refute the submissions to contend that

when a cognizable offence is brought to the notice of the ACB, it is

the bounden duty of the ACB to register FIR and conduct

investigation. That is what has happened in the case at hand, as

the allegation against the petitioner is that he has amassed wealth

by way of misappropriation.

7. The learned counsel representing the 2nd respondent would

again refute the submissions of the petitioner to contend that

criminal law can be set in motion by any person who has knowledge

of the facts and would submit that the complaint is in compliance

with law and no fault can be found with the registration of crime

and direction to investigate by the jurisdictional police. He would

submit that the contents of Crime No.40 of 2016 are entirely

different with what is alleged in Crime No.6 of 2020. Therefore,

seek dismissal of the petition.

8. I have given my anxious consideration to the submissions

made by the respective learned counsel and perused the material

on record.

9. The afore-narrated facts are not in dispute. A crime is

registered against the petitioner in Crime No.40 of 2016. The said

crime is registered by the Taluk Executive Officer of Srinivaspura

Talulk on 15-06-2016. The complaint is registered on the score that

the petitioner along with others during the years 2013-14, 2014-15,

2015-16 has indulged in such acts which resulted in loss to the

Government and misappropriation of funds to the tune of

Rs.9,57,37,000/- all arising out of MGNREG Scheme. The said crime

is pending investigation at the hands of the jurisdictional police. On

the departmental side, charge sheet is issued against the petitioner

and several others and an Inquiry Officer is appointed to hold

departmental inquiry and the same is pending consideration before

the Department and the Inquiry Officer has also given his interim

report indicating recovery of money to the tune of Rs.36,93,106/-.

The final adjudication of the departmental inquiry is yet to come

about. With both these issues pending, the 2nd respondent claiming

to be a social worker registers a private complaint before the

Special Court for Anti-Corruption, Kolar invoking Section 200 of the

Cr.P.C. The complaint in fact is filed invoking Section 200 read with

Section 156(3) of the Cr.P.C.

10. The contention of the learned counsel appearing for the

petitioner is that the complainant has no locus to file the private

complaint. As concept of locus is alien to criminal law, any person

can set the criminal law in motion by seeking to register a

complaint before the officer in-charge of a Police Station or a

private complaint within the parameters of law. The parameters

would be that the complainant should be aware of the facts and

should not be completely alien to the issue. But, the registration of

private complaint by any person claiming to be the victim or even

knowing the facts of the case would be in accordance with law. A

private complaint cannot straight away be brought before

concerned court and the concerned court, it being in compliance

with law cannot blindly refer the matter for investigation under

Section 156(3) of the Cr.P.C.

11. Prior to registration of a private complaint, it is

mandatory for the complainant to approach the officer in-charge of

a Police Station of the jurisdiction and seek to register a complaint.

If the said complaint is not being registered under Section 154(3) of

the Cr.P.C. the informant/complainant is to approach the higher

officer and if those two efforts fail, narrating the failure of the

efforts, with documentary evidence of attempts made to register

the complaint before the Officer in-charge of the Police Station and

further attempt to complain against non-registration of the

complaint, they should be appended to the private complaint and

on appending those documents, an affidavit accompanying the

complaint should be placed along with the private complaint.

12. If the complaint is considered on the bedrock of these

principles, it would, on the face of it, run foul. The complaint

though narrates all the instances of activities of the petitioner

causing loss, forgery or misappropriation of funds and has also

produced plethora of documents, it does not contain any document

in compliance with Section 154(1) or (3) of the CrPC and has not

accompanied an affidavit of the complainant. What is filed is only

verification. These facts with regard to the lacunae in the complaint

are undisputed. The Apex Court in the case of PRIYANKA

SRIVASTAVA v. STATE OF U.P.1 has held as follows:-

"29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same.

30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

(2015) 6 SCC 287

31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.

32. The present lis can be perceived from another angle. We are slightly surprised that the financial institution has been compelled to settle the dispute and we are also disposed to think that it has so happened because the complaint cases were filed. Such a situation should not happen.

33. At this juncture, we may fruitfully refer to Section 32 of the SARFAESI Act, which reads as follows:

"32.Protection of action taken in good faith.--No suit, prosecution or other legal proceedings shall lie against any secured creditor or any of his officers or manager exercising any of the rights of the secured creditor or borrower for anything done or omitted to be done in good faith under this Act."

In the present case, we are obligated to say that the learned Magistrate should have kept himself alive to the aforesaid provision before venturing into directing registration of the FIR under Section 156(3) CrPC. It is because Parliament in its wisdom has made such a provision to protect the secured creditors or any of its officers, and needless to emphasise, the legislative mandate has to be kept in mind."

(Emphasis supplied)

The said judgment of the Apex Court is followed later in the case of

BABU VENKATESH v. STATE OF KARNATAKA2 wherein the Apex

Court has held as follows:

"22. We find that in the present case, though civil suits have been filed with regard to the same transactions and though they are contested by the respondent No. 2 by filing written statement, he has chosen to file complaint under Section 156(3) of the Cr.P.C. after a period of one and half years from the date of filing of written statement with an ulterior motive of harassing the appellants. We find that, the present case fits in the category of No. 7, as mentioned in the case of State of Haryana v. Bhajan Lal (supra).

23. Further we find that, the present appeals deserve to be allowed on another ground.

24. After analyzing the law as to how the power under Section 156(3) of Cr.P.C. has to be exercised, this court in the case of Priyanka Srivastava v. State of Uttar Pradesh2 has observed thus:

"30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the

(2022) SCC Online SC 200

applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations.

This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."

25. This court has clearly held that, a stage has come where applications under Section 156(3) of Cr.P.C. are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.

26. This court further held that, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. The court has noted that, applications under Section 156(3) of the Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons.

27. This court has further held that, prior to the filing of a petition under Section 156(3) of the Cr.P.C., there have to be applications under Section 154(1) and 154(3) of the Cr.P.C. This court emphasizes the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156(3) of the Cr.P.C. In as much as if the affidavit is found to be false, the person would be liable for prosecution in accordance with law.

28. In the present case, we find that the learned Magistrate while passing the order under Section 156(3) of the Cr.P.C., has totally failed to consider the law laid down by this court.

29. From the perusal of the complaint it can be seen that, the complainant/respondent No. 2 himself has made averments with regard to the filing of the Original Suit. In any case, when the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application under Section 156(3) of the Cr.P.C. The High Court has also failed to take into consideration the legal position as has been enunciated by this court in the case of Priyanka Srivastava v. State of U.P. (supra), and has dismissed the petitions by merely observing that serious allegations are made in the complaint.

30. We are, therefore, of the considered view that, continuation of the present proceedings would amount to nothing but an abuse of process of law."

(Emphasis supplied)

In the light of the judgments rendered by the Apex Court (supra),

the complaint was not even maintainable. If the complaint was not

maintainable, the concerned Court could not have directed conduct

of investigation under Section 156(3) of the Cr.P.C.

13. The aforesaid filing of the affidavit is mandatory in cases

where the complainant seeks a direction for reference to Police for

investigation under Section 156(3) of the Cr.P.C. since the

complaint was filed before the concerned court i.e., the Anti-

Corruption Court and the investigation is ordered to be conducted

by the ACB under Section 156(3) of the Cr.P.C. Therefore, the

complaint ought to have been in compliance with Section 154(1)

and 154(3) of the Cr.P.C. and also filing of an affidavit, all of which

are held to be mandatory by the Apex Court in the cases of

PRIYANKA SRIVASTAVA and BABU VENKATESH. Therefore, the

submission of the learned counsel for the complainant that a

verification would suffice and an affidavit is not needed, deserves to

be rejected and is rejected, as the submission is fundamentally

flawed and runs counter to the law laid down by the Apex Court.

14. However, the contention of the learned counsel appearing

for the ACB that no fault can be found in the ACB conducting

investigation in the light of the direction of the concerned Court

sounds acceptance, but, since the very complaint itself was not

maintainable, any investigation conducted in the aftermath of the

complaint is a nullity in law. However, it would be open to the

complainant to bring the complaint in tune with the observations

made in the course of this order before the learned Magistrate.

15. For the aforesaid reasons, I pass the following:

ORDER

(i) Criminal Petition is allowed.

(ii) The direction issued by the Special Sessions Court, Anti-Corruption, Kolar to investigate the case under Section 156(3) of the Cr.P.C. stands quashed.

(iiii) Consequently FIR registered on the said direction in Crime No.6 of 2020 also stands quashed and all subsequent actions taken by the ACB are rendered a nullity.

(iv) Liberty as observed in the course of the order to the complainant is protected.

As a consequence, I.A.No.1/2020 stands disposed.

Sd/-

JUDGE

bkp CT:MJ