T. P. Munninarayanappa vs State By Karnataka Lokayukta
2023 Latest Caselaw 2065 Kant

                               1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 29TH DAY OF MARCH, 2023

                              BEFORE

           THE HON'BLE MR. JUSTICE K.NATARAJAN

        WRIT PETITION NO.19480 OF 2022 (GM-RES)

BETWEEN

T. P. MUNNINARAYANAPPA
S/O. PUTANNA,
AGED ABOUT 70 YEARS,
FORMER S.D.A.O. K.I.A.D.B.,
R/O. NO. 207,
VENKATESWARA NILAYA,
1ST MAIN,
KASTURINAGARA,
BANGALORE-560043.                         ... PETITIONER

(BY SRI SWAROOP ANAND R., ADVOCATE)

AND

STATE BY KARNATAKA LOKAYUKTA
CITY DIVISION,
BANGALORE,
REPRESENTED BY SPL. PP.,
HIGH COURT OF KARNATAKA,
BANGALORE-560 001.
                                          ... RESPONDENT
(BY SRI VENKATESH S. ARBATTI, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH
ORDER DATED 30.08.2022 IN SPL.C.C.NO.115/2013 PASSED BY
HONBLE LXXVIII ACC AND SJ FOR PREVENTION OF
CORRUPTION ACT AT BANGALORE CITY PRODUCED HEREIN AT
ANNEXURE-A AS AGAINST THE PETITIONER.
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     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 17.01.2023 THIS DAY, THE COURT
MADE THE FOLLOWING:

                          ORDER

This Writ Petition is filed by petitioner-accused No.1

under Articles 226 and 227 of the Constitution of India

read with Section 482 of Cr.P.C. for quashing the order

dated 30.08.2022 passed in Spl.C.C.No.115/2013 pending

on the file of the Additional City Civil and Sessions Judge,

Bengaluru and further to quash the order of taking

cognizance dated 24.06.2013 for the offences punishable

under Sections 13(1)(c)(d) read with Section 13(2) of P.C.

Act, 1988 and Sections 465, 468, 471, 120(B), 420 of IPC.

2. Heard the arguments of learned counsel for the

petitioner and Sri Venkatesh Arbatti, learned Special

counsel appearing for the respondent-Lokayukta.

3. The case of the prosecution is that FIR was

registered in Crime No.24/2010 on 28.06.2010 by the

Police wing of Lokayukta against a clerk of Karnataka

Industrial Areas Development Board (hereinafter referred

to as 'KIADB') alleging that there was demand of bribe for

releasing compensation amount to the beneficiaries to an

individual namely Rukmangada Naidu. The Police have

investigated the matter and filed the charge-sheet. The

same was registered as Spl.C.C.No.306/2010. He further

alleged that during the investigation in Crime No.24/2010,

they found certain irregularities in disbursing the

compensation in various files of various projects in KIADB

and subjected to the same for scrutiny through an alleged

Expert Committee in P.F.Nos.35/2010, 40/2010, 42/2010,

50/2010 in Crime No.24/2010. However, based upon the

report given by the said Committee, the Police have

registered five suo moto FIRs in Crime Nos.42/2010,

43/2010, 44/2010, 45/2010 and 46/2010.

4. It is further alleged that in Crime No.43/2010,

it is alleged that the manner of disbursement of

compensation in respect of acquisition of land in Itasca

Software Development Pvt. Ltd., there is illegal

disbursement of compensation in Survey Nos.74/302,

74/P3, 75/1 & 2, 40/P35, 40/P356 and 21/P21 and charge-

sheet has been filed and numbered as Spl. Case

No.139/2011.

5. It is further alleged that the Lokayukta Police

though investigated the matter in Crime No.43/2010, filed

the charge-sheet and numbered as Spl.CaseNo.139/2012

but once again the Lokayukta Police said to be filed one

more charge-sheet based upon the same FIR and the

Spl.C.C.No.115/2013 has been registered alleging that

there was a wrong disbursement of compensation in

respect of land in Survey No.74/302 which is under

challenge.

6. The learned counsel for the petitioner has

contended that the charge-sheet has been filed and

registered in Spl.C.C.115/2013 on the basis of the same

FIR in Crime No.43/2010 alleging that a compensation has

been released to Mary John in respect of Survey

No.74/302, even though a complaint was registered in

Crime No.109/2010 by Bagalur Police in respect of

compensation towards Survey No.74/302 which was

already transferred from JMFC, Devanahalli Court to

Lokayukta as per the order of the Lokayukta dated

28.10.2011. It is evident from the above FIR in Crime

No.43/2010 in respect of land in Survey No.74/302 in

respect of illegality in RRT proceedings 305/1995-96 dated

01.04.2009 on the suo moto case registered in respect of

the same RRT proceedings in Crime No.43/2010 and there

is no communication to the case transferred to the

Lokayukta from Bagalur Police in Crime No.109/2010 and

the Lokayukta Police could not investigate the said

allegation and filed the charge-sheet in

Spl.C.C.No.115/2013.

7. The learned counsel further contended that

even though there was no complaint or FIR in respect of

the allegation made in the charge-sheet in Spl.C.C.

No.115/2013 where the Bagalur Police registered the case

for getting withdrawal of the compensation by

impersonation of one Mary John. But the charge-sheet filed

in Crime No.43/2010 is based upon the suo moto

complaint and the allegations are altogether different as

there was RRT proceedings 305/1995-96 is pending.

Therefore, it is contended that the respondent Police could

not have investigated the allegation in Crime No.109/2010

with the allegation under Crime No.43/2010 which are

completely different. The Lokayukta could not have filed

two standalone charge-sheets under Section 173(2) of

Cr.P.C. based upon the single FIR. In support of his case,

the learned counsel has relied upon the judgment of the

Hon'ble Supreme Court in the case of Vinay Tyagi vs.

Irshad Ali and Others reported in

MANU/SC/1101/2012.

8. The learned counsel also taken the second

contention that the petitioner was public servant who was

acted while discharging his public duty and released the

compensation on the application filed by the litigants for

seeking compensation for their lands which were acquired

by the KIADB and it is contended that the Lokayukta Police

have not obtained any sanction for prosecuting against the

petitioner which is required under Section 197 of Cr.P.C.

and also under Section 19 of the P.C. Act. Therefore,

taking cognizance against the petitioner is liable to be

quashed.

9. The learned counsel further contended that the

trial Court without application of mind took the cognizance

of the offence against the petitioner even though there is

no FIR and panchanama produced along with the charge-

sheet and subsequently, on the application filed by the

respondent, the trial Court passed on order under Section

91 of Cr.P.C. for summoning the FIR, even though, it was

kept pending on the earlier occasion. Hence, prayed for

quashing the criminal proceedings. In support of his

arguments, the learned counsel has relied upon various

judgments of the Hon'ble Supreme Court as well as the

Co-ordinate Bench of this Court.

10. Per contra, learned counsel appearing for the

Lokayukta has objected the petition and contended that

while investigating the matter in Crime No.43/2010, it was

found that the petitioner also involved in irregularities in

disbursing the compensation in collusion with the

applicants and for the purpose of conspiracy under Section

120B of IPC, there is no sanction required and the act of

the accused is not pertaining to the discharge of the public

duty and further contended that even on the same FIR

filing two charge-sheets are permissible under the law.

Therefore, it is contended that there is no irregularity or

illegality in taking cognizance by the trial Court and hence,

prayed for dismissing the petition. In support of his

arguments, he also relied upon the order passed by the

Co-ordinate Bench of this Court in the case of Motisham

Mohammed Ismail vs. Central Bureau of

Investigation reported in ILR 2003 KAR 4059 and also

the judgment of the Hon'ble Supreme Court in the case of

Rajib Ranjan and Others vs. R Vijaykumar reported in

(2015) 1 SCC 513 and also produced the order of the Co-

ordinate bench of this Court in the case of C.S. Puttaraju

vs. State and others in Crl.P.No.5305/2021.

11. Having heard the arguments and on perusal of

the records, it is revealed from the averments made in the

petition and documents on record that the petitioner is

said to be a retired Government servant worked for the

KIADB and during his tenure, he has said to be released

compensations to the applicants in respect of various

projects, the lands were acquired by the KIADB for various

purposes including Metro Rail Project. Initially, the

Lokayukta registered FIR in Crime No.24/2010 as a clerk

of the KIADB demanded bribe for releasing the

compensation to the applicant in respect of land acquired

for Metro Rail Project to one Rukmangada Naidu and

charge-sheet was filed in Spl.C.C.No.306/2010. During the

investigation, an Expert Committee has been constituted

and they found that there was irregularities in disbursing

the compensation in respect of P.F.Nos.35/2010, 40/2010,

42/2010, 50/2010 and based upon the Committee report,

the Lokayukta Police registered FIRs in Crime

Nos.42/2010, 43/2010, 44/2010, 45/2010 and 46/2010 in

respect of various lands including the land in Survey

No.74/302. Therefore, the Lokayukta Police have filed

charge-sheet and numbered as Spl.C.C.No.139/2011. It is

further alleged that one person Mary John is said to be

filed a complaint to the Bagalur Police stating that some

person by impersonating him has withdrawn the

compensation and FIR in Crime No.109/2010 has been

registered by Bagalur Police on 29.06.2010. Subsequently,

the Bagallur Police said to be transferred the FIR to the

Lokayukta and in turn, the Lokayukta said to be not

registered any FIR as there was already an FIR registered

and charge-sheet has also been filed in

Spl.C.C.No.139/2011. But the same Police have filed a

separate charge-sheet in Spl.C.C.No.115/2013 which is

under challenge.

12. The documents reveals that the Police have

already investigated the matter in respect of land in

Survey No.74/302 and have filed the charge-sheet which is

numbered as Spl.C.C.No.139/2011 and once again, the

same Police have filed one more charge-sheet on the same

allegation where they have already investigated and filed

charge-sheet and therefore, the learned counsel has

contended that a multiple charge-sheets have been filed

on the same alleged offences which are said to be

committed by the accused persons. Even it is revealed

from the arguments and from the records that there is no

separate FIR registered by the Police in respect of the

allegation made by one Mary John in the complaint filed

before the Bagalur Police and that is altogether different

allegation that somebody impersonated the said Mary John

and withdrawn the compensation which is punishable

under Sections 465, 468, 471, 420, 120B of IPC. Whereas,

the allegation against this petitioner in Crime No.43/2010

was some irregularities committed by the petitioner and

others while discharging their official duties and while

releasing the compensation, where, the Police have

already filed charge-sheet and numbered as

Spl.C.C.No.139/2011 ad the very same Police have filed

one more charge-sheet independently which is registered

as Spl.C.C.No.115/2013 which reveals both charge-sheets

are standalone charge-sheets.

13. The Hon'ble Supreme Court in the case of

Vinay Tyagi stated supra has held at paragraph 30 of the

judgment which is as under:

30. Having analysed the provisions of the Code and the various judgments as aforeindicated, we would state the following conclusions in regard to the powers of a Magistrate in terms of Section 173(2) read with Section 173 and Section 156 of the Code:

1. The Magistrate has no power to direct reinvestigation or fresh investigation (de novo) in the case initiated on the basis of a police report.

2. A Magistrate has the power to direct 'further investigation' after filing of a police report in terms of Section 173 of the Code.

3. The view expressed in (2) above is in conformity with the principle of law stated in Bhagwant Singh's case [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 :

1985 SCC (Cri) 267] by a three-Judge

Bench and thus in conformity with the doctrine of precedence.

4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173 cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156 and the language of Section 173 itself. In fact, such power would have to be read into the language of Section 173.

5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to conduct further investigation which it could do on its own.

6. It has been a procedure of propriety that the police has to seek permission of the court to continue 'further investigation' and file supplementary charge sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case."

Ultimately, the Hon'ble Supreme Court has set aside

the additional charge-sheet filed by the Police. Here in this

case, the Police have filed two separate charge-sheets

without registering any FIR which is not permissible. The

learned counsel for the respondent has relied upon the

judgment of the Co-ordinate Bench of this Court in the

case of Motisham Mohammed Ismail stated supra,

where the accused in the said case was found in

possession of various fake passports said to be issued by

the Bengaluru Passport Authorities as well as Bombay

Passport Authorities and therefore, they filed two separate

charge-sheets in both the Courts at Bombay as well as at

Bengaluru. But the said case is not applicable to the case

on hand as the fact of the case is altogether different from

the said case, it is different allegations, therefore, the

registration of the FIRs is necessary for filing the charge-

sheet. In support of his case, the learned counsel for the

petitioner has relied upon the judgment of the Co-ordinate

Bench of this Court in the case of Christy Fried Gram

Industry and Others vs. State of Karnataka and

Others reported in MANU/KA/2923/2015 has held at

paragraph Nos.68, 76, 81 and 82 as under:

"68. In the circumstances, the contention of the learned counsel for Lokayukta that since the offences under FSSA are not invoked, following the procedure under the said Act is not required cannot be sustained as it is the bounden duty of the prosecution to follow the procedure established by law. In that view of the matter, the case registered for the food related offences cannot be said to be after following the procedure established by law as enshrined under Article 21 of the Constitution of India. Therefore, the Lokayukta Police have committed an error of law in proceeding to investigate the food related offences and without following the procedure prescribed by FSSA, which is without jurisdiction and authority of law.

Point No. 4: Whether search warrant issued and seizure made based on that is vitiated thereby vitiates the entire proceedings as contended by the petitioners?

76. Keeping the above principle in mind, if the case on hand is examined, here is a case where the Lokayukta Police have assumed the power and jurisdiction of Lokayukta on an anonymous complaint addressed to Lokayukta. Without placing the said complaint before Lokayukta for taking proper steps in terms of Section 9 of Karnataka Lokayukta Act, 1984 proceeded to investigate into the complaint without registering the FIR by different investigating officers and registered the FIR based on the investigation report with an inordinate delay of about 18 months. It is a matter of no controversy any more that registration of FIR is mandatory before proceeding to investigate into the truth or otherwise which mandate is not followed by the respondent police. When food related offences are regulated by FSSA, the procedure prescribed therein is not followed instead Section 270 of IPC is invoked without even alleging the malignant act on the part of the petitioners in the writ petition which probably would have resulted in causing infectious disease among the beneficiaries. The respondent police have proceeded on a wrong footing that petitioners in

the writ petition are suppliers of food items but on the contrary it is only a capacity builder, supply blended materials and in turn MSPTCs. prepare the food for the beneficiaries. It is the averment in the anonymous complaint that the status of children's health and nutrition and that of adolescent girls, pregnant and lactating mothers is dismal with over 50% being anaemic and malnourished because of deficiency in food supplied to the beneficiaries and for this Christy Friedgram Industry has bought not only the Director but also the other staff employed in ICDS. The proceedings initiated suffer from lack of jurisdiction and malice.

81. The learned counsel for Lokayukta relying upon MANU/SC/1001/2013:2013 AIR SCW 6660 (Vinod Raghuvanshi v. Ajay Arora & others) contends that the charge sheet filed or charges framed at the initial stage can be altered/amended or a charge can be added at the subsequent stage, after the evidence is adduced in view of the provisions of Section 216 Cr.P.C. and court should not "kill a still born child". In the instant case, there is a basic infirmity in the criminal prosecution launched as against the petitioners and it is a clear abuse of process of the court which was not the situation in the above authority. Therefore, the prosecution cannot be saved relying upon the aforesaid citation.

82. Hence in order to prevent abuse of the process of law and to secure the ends of justice, exercise of inherent power conferred under Section 482 of Cr.P.C. is imperative and inevitable."

14. In view of the above said principle, without

registering the FIR, filing of the charge-sheet in Spl.

C.C.No.115/2013 is not sustainable under the law as there

is no order by the Sessions Judge for reinvestigation or

further investigation or denovo investigation. Such being

the case, two independent charge-sheets in respect of

Crime No.43/2010 is not sustainable under the law.

15. In respect of the second contention raised by

the learned counsel for the petitioner is that the Police

have not obtained any sanction for taking cognizance by

the trial Court, in this regard, admittedly, the Police have

not obtained any prior sanction for prosecuting the case

against the petitioner. It is also an admitted fact that at

the time of filing the charge-sheet, the petitioner was

retired from the service. However, it is borne out from the

records and allegation made against the petitioner was he

has disbursed the compensations to the beneficiaries while

passing the orders while discharging the duty as Officer of

the KIADB and it is clear from the averments in the

charge-sheet that during the tenure of his duty, he has

committed the offence while he was an Officer of the

KIADB. The learned counsel for the petitioner has relied

upon the judgment of the Hon'ble Supreme Court in the

case of Rakesh Kumar Mishra vs. The State of Bihar

and Others reported in MANU/SC/0200/2006 has held

at paragraph Nos.9, 16 and 18 which are as under:

           "9.   It   has     been   widened    further    by
     extending   protection    to    even   those   acts   or

omissions which are done in purported exercise of official duty; that is under the colour of office. Official duty, therefore, implies that the act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which

are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that an act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in the discharge of duty may have to use force which may be an offence commits an act in course of service but not in discharge of his duty and without any justification therefore omission performed by a public servant in the discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H.C. Bhari MANU/SC/0071/1955 : AIR 1956 SC 44 thus:

The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner, with the discharge of official duty......there must be a reasonable

connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.

16. We may mention that the Law Commission in its 41st Report in paragraph 15.123 while dealing with Section 197, as it then stood, observed "It appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant. It was in pursuance of this observation that the expression 'was' came to be employed after the expression 'is' to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted.

18. When the factual position is considered in the background of legal principles elaborated above the inevitable conclusion is that the High Court was not justified in holding that Section 197 was not applicable to the facts of the case. In the instant case, therefore Section 197 of the Code had clear application. High Court only focussed on the absence of the search warrant and totally ignored other relevant aspects. Though the allegations about alleged offences had their matrix on the absence of search warrant, the other circumstances noted above had a determinative role in the issue. The events, if any, which allegedly took place after 11-7-1996 on which emphasis was laid by Respondent 2 have really no relevance for the issue under consideration. Their effect, if any, can be considered at the appropriate stage. We make it clear that the view expressed by us is only in respect of applicability of Section 197 of the Code."

16. The learned counsel also relied upon the

judgment of the Co-ordinate Bench of this Court in the

case of Anil Kumar B.H. and Others vs. The Lokayukta

Police, Shivamogga and Others in

W.P.No.24574/2013 (GM-RES) dated 25.11.2021 has

taken the view by relying upon the various judgments of

the Hon'ble Supreme Court and has held at paragraph

No.15 which is as under:

"15. Insofar as public servants who have demitted office or retired on attaining the age of superannuation, the said issue also stands covered by the judgment of Apex Court in the case of STATE OF PUNJAB v. LABH SINGH MANU/SC/1175/2014 : (2014) 16 SCC 807 - wherein it is held as follows:

"9. In the present case the public servants in question had retired on 13-12-1999 and 30-4-

2000. The sanction to prosecute them was rejected subsequent to their retirement i.e. first on 13-9-2000 and later on 24-9-2003. The public servants having retired from service there was no occasion to consider grant of sanction under Section 19 of the PC Act. The law on the point is quite clear that sanction to prosecute the public servant for the offences under the PC Act is not required if the public servant had already retired, on the date of cognizance by the court. In S.A. Venkataraman v. State [S.A. Venkataraman v. State, MANU/SC/0029/1957: AIR 1958 SC 107 : 1958 Cri. L.J. 254 : 1958 SCR 1040] while construing Section 6(1) of the Prevention of Corruption Act,

1947 which provision is in pari materia with Section 19(1) of the PC Act, this Court held that no sanction was necessary in the case of a person who had ceased to be the public servant at the time the court was asked to take cognizance. The view taken in S.A.

Venkataraman [S.A. Venkataraman v. State, MANU/SC/0029/1957 : AIR 1958 SC 107 : 1958 Cri. L.J. 254 : 1958 SCR 1040] was adopted by this Court in C.R. Bansi v. State of Maharashtra [C.R. Bansi v. State of Maharashtra, MANU/SC/0104/1970: (1970) 3 SCC 537 : 1971 SCC (Cri.) 143] and in Kalicharan Mahapatra v. State of Orissa [Kalicharan Mahapatra v. State of Orissa, MANU/SC/0473/1998 : (1998) 6 SCC 411 : 1998 SCC (Cri.) 1455] and by the Constitution Bench of this Court in K.

Veeraswami v. Union of India [K. Veeraswami v. Union of India, MANU/SC/0610/1991: (1991) 3 SCC 655 : 1991 SCC (Cri.) 734]. The High Court was not therefore justified in setting aside the order passed by the Special Judge insofar as charge under the PC Act was concerned.

10. However as regards charges for the offences punishable under the Penal Code, the High Court was absolutely right in setting aside the order of the Special Judge. Unlike Section 19 of the PC Act, the protection under Section

197 CrPC is available to the public servant concerned even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13-9-2000 and secondly on 24-

9-2003, the Court could not have taken cognizance insofar as the offences punishable under the Penal Code are concerned. As laid down by this Court in State of H.P. v. Nishant Sareen [State of H.P. v. Nishant Sareen, MANU/SC/1051/2010: (2010) 14 SCC 527 : (2011) 3 SCC (Cri.) 836], the recourse in such cases is either to challenge the order of the sanctioning authority or to approach it again if there is any fresh material.

(emphasis supplied)

Therefore, none of the submissions made by the learned counsel appearing for the respondent would merit consideration as all contentions stand covered by the judgments referred to supra."

17. The another Co-ordinate Bench of this Court in

the case of State of Karnataka vs.

Dr.V.Chandrashekhar in Criminal Revision Petition

No.790/2015 dated 09.02.2022 has dismissed the

Revision Petition where the trial Court has discharged the

accused for not obtaining the previous sanction under

Section 19 of the P.C. Act. and at paragraph Nos.14 and

15, it is held as under:

"14. Therefore it is clear that the amended Section makes it very clear that sanction is necessary not only for subjecting a public servant while in service (or who is in service) but also a public servant who has retired from service (who was in service). This amendment is by way of substitution, and it takes effect from the inception in the sense it must be understood as if the substituted provision is there from the day when the law was enacted. This position is made clear by the Division Bench of this Court in the case of PUSHPALATHA N.V. VS. V.PADMA AND OTHERS (ILR 2010 KAR 1484). Though this decision was rendered in an appeal arising from a suit, for the purpose of understanding the effect of amendment by substituting a provision of law, it can be referred to here. What is held is as below:

"52. This declaration and conferment of right in coparcenary property, a salient and distinguishing feature of a coparcenary property in Mitakshara, is the right by birth. Once daughter is conferred the

right of a coparcener, it follows that, she would get a right by birth in the coparcenary property. When the amending Act came into force in 2005, naturally the question and a doubt would arise, as to when the daughter would get that right. The Parliament realised this problem and did not want to leave any one in doubt about its intention. It is expressly stated in the section itself that this "right is by birth", leaving no scope for interpretation.

This amendment is introduced by way of substitution. The result is, this amended provision is there in the statute on the day it came into force i.e, 17-6-1956. From that day till the amendment Act came into force on 9-9-2005, the daughter of the coparcener was not a coparcener and she became a coparcener only from 9-9-2005. Though her status was so declared on 9-9-2005, she has been given right in the coparcenery property from the date of her birth. It would result in absurdity. Therefore, what the Parliament did was to use the phrase, "on and from the commencement of the Hindu Succession (Amendment) Act, 2005", as the opening words of the Section, thus removing the absurdity.

                                        (emphasis supplied)

15.    Thus   seen,   it        may   be     stated   that   the
amendment       brought          to   Section    19    of    the

Prevention of Corruption Act by Act No.16 of 2018 is to be understood as if it came into effect from the date the Prevention of Corruption Act was first given into effect i.e., from 09.09.1988. This being the change in law, definitely the respondent can contend that he cannot be prosecuted without sanction and his retirement from service does not make any difference in the matter of obtaining sanction. Therefore the argument of Sri B.S.Prasad cannot be accepted, I do not find any infirmity in the ultimate conclusion taken in the impugned order to discharge the respondent. The revision petition fails and it is dismissed."

18. In view of the above said findings and law

enunciated by the Hon'ble Supreme Court and the Co-

ordinate Benches of this Court holding that the previous

sanction is necessary for taking cognizance under Section

19 of the P.C.Act and moreover, the petitioner was said to

be a public servant while discharging the duty. Therefore,

the protection is available under Section 197 of Cr.P.C.,

where the prior sanction is required. But here in this case,

no such sanctions are obtained by the prosecution agency

for prosecuting the case against the petitioner.

19. On perusal of the records, the very foundation

of filing of the charge sheet without registering the FIR is

not sustainable and even otherwise, there is no sanction

obtained for prosecution for taking cognizance by the trial

Court. Even otherwise, the judgment of the Co-ordinate

Bench of this Court in the case of Janaki and Others vs.

State of Karnataka and Others reported in

MANU/KA/2532/2011 has held at paragraph Nos.5, 6

and 10 which are as under:

5. To answer this question, it is necessary to advert to the relevant statutory provisions and the interpretation put on them. Sections 3(b) and 9(3) of the Land Acquisition Act, 1894 read as follows:

"3(b). the expression "person interested" includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in the land if he is interested in an easement affecting the land.

9(3). The Collector shall also serve notice to the same effect on the occupier (if any)

of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested as reside or have agents authorized to receive service on their behalf, within the revenue district in which the land is situate.

6. The term "person interested in the land" is not given an exhaustive definition. Its inclusive definition has extended the concept of a "person interested" to the widest of amplitude. As a necessary consequence, apart from the land- owners, a mortgagee, a tenant, a lessee, a grantee, a person having easement over the land and a host of others would also come within the phraseology employed in Section 9(3) of the said Act. In taking this view, I am fortified by the Full Bench decision of the Punjab and Haryana High Court in the case of State of Punjab v. Gurdial Singh and another, reported in MANU/PH/0130/1984:AIR 1984 P&H 1.

10. The Division Bench of Gujarat High Court in the case of Gandhamoyee Devi v. Collector of Kamrup, Gauhati reported in MANU/GH/0017/1982:AIR 1982 Gau 63, has held that any person affected by extinguishment of a right in the land is the person interested. The relevant portions of the said judgment are extracted herein below:

"5. Now let us consider as to whether the appellant is a person interested or not. The meaning of the expression "person interested" will be a relevant consideration for determining point No. (iii) as well. Therefore, it is necessary to explain the meaning of the expression as understood in "the Act". The effect of Land Acquisition is to relinquish the rights of the owners in the land and to vest it exclusively in the Government. As such, any person affected by the extinguishment of the right in the land comes within the provision of S. 3(b) of "the Act" Section 11 of "the Act" provides that Collector must inquire into the respective interest of the person claiming interest and it is a condition precedent for making a valid award by the Collector."

20. Though there was some allegations in the

multiple FIRs registered by the Lokayukta about

irregularities in those FIRs, but no FIR in this case,

therefore, this Court cannot go into the merits of those

cases and there is a flaw and illegality in filing the charge-

sheet and taking cognizance without FIR. Therefore,

continuing the criminal proceedings against the petitioner

is nothing but abuse of process of law and liable to be

quashed.

Accordingly, the petition is allowed.

The criminal proceedings against the petitioner in

Spl.C.C.No.115/2013 pending on the file of Additional City

Civil and Sessions Judge, Bengaluru is hereby quashed.

Sd/-

JUDGE

GBB