TMI Blog2016 (1) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... islature. The Code no where contemplates a Police Officer acting under Section 157 of the Code to publish the source of information which drives him to register a suo moto complaint in respect of a cognizable offence. Likewise it is always open to a concerned/aggrieved informant to approach the jurisdictional Police even on suspicion about commission of a cognizable offence, to be dealt in accordance with Section 154(1) of the Code. An alert citizen upholding the mission of 'combat against corruption' is certainly laudable. But it shall not be a free style battle. The penal laws under which the alleged offence fall will take over, if offence is proved in a court of law. The procedure contemplated by the Code to invoke criminal law into motion being the first step for registration of a criminal case, inroading of the procedure laid down by rule of law is not at all permissible. An attempt is made to justify the action of Lokayuktha Police that the case is not registered solely on the report of C.A.G. but also on the independent enquiry conducted by the C.I.D. Police on the direction of the Lokayuktha. Petition allowed. - Writ Petition Nos. 41228, 26395, 26396, 26397, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he referred to the orders passed by the Division Bench of this Court in W.P. No. 15502/2013 D.D. 10.4.2013 and W.P. No. 8347/2013 D.D. 28.6.2013. As could be seen from the undisputed documents placed on record, the Registry of the Lokayuktha on receiving his complaint in the prescribed form, registered the complaint. The names of the Officers involved were called for from the Chief Secretary, Government of Karnataka to take action against them. Since there was no response from the Government side, by invoking the provisions of Section 15(3) of the Karnataka Lokayuktha Act ('the Act' for short), the matter was referred to the Director General of Police, Criminal Investigation Department, Economic Offences and Special Units, for investigation and to report. It took almost one year for the DGP, CID to submit his report in the matter. The report also appears to have mentioned that, in respect of 35 cases pertaining to de-notification of the land pointed out by the CAG in his report, the prosecution is already launched in some cases and some cases are pending in Lokayuktha Special Court. On the note put by the Registry, the Lokayuktha ordered on 11.6.2015 thus: Approved a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. In W.P. No. 26397/2015 (Crime No. 44/2015) pertaining to 270.01 acres of land in Sy. No. 1 of G.B. Kaval Village, gave up acquisition of the land by conniving with BDA and other officials by involving himself in their illegal transaction against the recommendation of the de-notification committee. In W.P. No. 41229/2015 (Crime No. 40/2015) pertaining to 6 acres 31 guntas of land in Sy. No. 24 of Kothanur village, gave up acquisition of the land by colluding with the landlords, BDA and officials of other Departments, by placing reliance on false information that the land is still in the physical possession of the landlord. In W.P. No. 41230/2015 (Crime No. 43/2015) pertaining to Sy. No. 1/1 measuring 3 acres 33 guntas of Lottegollahalli village, denotified the land in respect of a person as against the original Khatedar and said other persons subsequently purchased the land after final notification against the K.L.R.T. Act though 5 acres of said land was already denotified and the case was closed as early as on 23.4.2010. In W.P. No. 41232/2015 (Crime No. 52/2015) pertaining to land in Sy. No. 46 measuring 16 acres 9 guntas of Nagarabavi Village, Bangalore Nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Thereafter the land was purchased by land developer from the original landlord. In W.P. No. 41241/2015 (Crime No. 54/2015) against the public interest, he misused his official position by treating it as a special case and ordered to give up acquisition of land in Sy. No. 23 measuring 2 acres 10 guntas of Hulimavu village, Begur Hobli, Bangalore South Taluk. In W.P. No. 41231/2015 (Crime No. 47/2015) pertaining to 3 acres 10 guntas of land in Sy. No. 77/1 and 2 acres in Sy. No. 77/2 of Valagerehalli village, Kengeri Hobli, Bangalore South Taluk, illegally ordered to give up the land from acquisition against the report of the Urban Development Department. 6. The common question of law raised for the petitioner in these petitions is that, the C.A.G. report based on which the complaint has originated being the exclusive property of the House, same cannot be made use by the complainant as against the petitioner. The FIR could not have been registered though no information regarding commission of any cognizable offence is informed by the complainant. There being no specific allegation of demand or request by the petitioner to obtain any valuable thing for his pecuniary adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner submits that, the power of the Comptroller and Auditor General of India emanates from Articles 148 to 151 of the Constitution of India and further regulated by the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971, the report of the CAG would be forwarded to the President or the Governor, as the case may be and will be deliberated by the Public Accounts Committee ('PAC for short). The PAC after obtaining the information from the concerned Ministers and Departments, would prepare a separate report and both the reports would be placed before the Parliament or the State Legislative Assembly. The report of the CAG is for the exclusive deliberation of the House and is considered to be the property of the House. No other authority has any right to pick up extracts from the CAG report and initiate proceedings either civil or criminal. As observed by the Apex Court, the CAG report cannot be considered as a 'gospel truth' and it is a document, which has to be deliberated upon by the House which has the discretion to either accept the recommendations or to reject them. That being the position, the respondent/Police could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oof of demand or request from the public servant for a valuable thing or primary advantage, the offence under Section 13(1)(d) of the P.C. Act cannot be held to be made out. 12. In support of the above submission, learned Senior Counsel placed his reliance on (1) (2009) 6 SCC 587 (A. Subair v. State of Kerala) regarding the submission that 'when there is no voluntary acceptance of money, no need to be a bribe, no offence was held to be made out under Section 5(1)(d) of the old P.C. Act'. (2) (2010) 4 SCC 450 (Banarsi Doss v. State of Haryana); (3) 1999(6) SCC 667 (Common Cause, a Registered Society v. Union of India and Others) in respect of the issuance of summons against the Minister, whereby it was held that there shall be an element of deception or fraudulently or dishonestly inducing another person to deliver any property. 13. Learned Senior Counsel hastens to add to his submission that the FIR since does not disclose any offence of deception of any person or about any property having been delivered by any person pursuant to such deception and there being no allegation of intentionally inducing any person to do or omit to do anything which he would not do or omit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and the same was subservient to the Executive Government. It was renamed by the Constituent Assembly on the suggestion of Sri. T.T. Krishnamachari. On the suggestion of Sri. B. Das, the Constituent Assembly redrafted the provision to the effect that the CAG shall be appointed by the President by a warrant under his hand and seal . In the opinion of Dr. B.R. Ambedkar in his speech in the constituent assembly on 30.5.1949, the CAG is probably the most important officer in the Constitution of India; if this functionary is to carry out the duties and his duties are far more important than the duties even of the judiciary; he should have been certainly as independent as the judiciary; he ought to have far greater independence than the judiciary itself. 15. The C.A.G. deriving his powers and duties from Article 149 to 151 of the Constitution of India is a premier institution for carrying out audit of accounts in respect of Government Departments, Government Companies, Government Corporations and bodies/authorities funded by the Government. The audit conducted by the C.A.G. is a unitary audit in a federal set up and his reports pertaining to Union sector are laid before the Parliam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, ((2012)3 SCC 1), the Apex Court considered it as not proper to refer the findings and conclusion contained in CAG report since it was being examined by the PAC and Joint Parliamentary Committee of the Parliament. The view of the Apex Court in Arun Kumar Agrawal (supra) being the latest is binding dehors any previous judgment to the contrary, as per the principles laid down by the Full bench of this Court reported in AIR 1980 KAR 92 (FB) in the matter of Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. and Another wherein it was held that where there is a conflict of two decisions of equal strength, the later judgment should be followed. The High Court of Sikkim, in the matter of Subba Associates v. Union of India has held the CAG Report as legislature paper and the property of the House and its members. Same view is taken by the High Court of Gauhati in M.S. Associates v. Union of India (2005). As per the judgment of the High Court of Delhi in W.P. No. 8502/2014 Sarvesh Bisaria v. Union of India and Others, the role of the CAG reports is to enable the legislature to oversee the functioning of the Government and it is for the legislature to take action on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner having failed to challenge the proceedings of the Lokayuktha, it is not required to consider whether or not CAG report can be looked into. The FIR indicates commission of cognizable office by the petitioner which requires investigation. It is the settled law that the FIR and the details are not the Encyclopedia of the crime alleged. A full fledged investigation only would reveal whether the offences are committed or not and appropriate report will thereafter be filed. It is too premature to claim either way. The investigation will be the domain of Police. 20. As regards the CAG report forming a basis for taking action, reliance is placed on a judgment of the Apex Court reported in (1) (2011)1 SCC 560 in the matter of Centre for Public Interest Litigation and Others v. Union of India and Others whereby the judgment of the Delhi High Court was reversed by the Apex Court, investigation on CAG and CVC report was ordered; (2) 1996(2) BLJR 869 in the matter of Sushil Kumar Modi and Others v. State of Bihar and Others and connected cases, whereby the Division Bench of the High Court of Patna directed CBI investigation in the Public Interest Litigation which was filed based on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it is said 'copy of the complaint', what is furnished to the petitioner on his request for the copy is, not a written complaint by the complainant or his oral statement recorded by the SHO/IO, but copy of a complaint dated 7.8.2013 submitted by Jayakumar Hiremath to the then Lokayuktha whereby he had sought action in respect of Various issues highlighted in CAG Report No. 6 of the year 2010-11 as well as CAG report No. 3 of the year 2012 relating to misuse of authority with corrupt motive and thereby causing heavy loss to the State exchequer'. None was arrayed as accused in the said complaint. In the body of the said complaint, the circumstances that led him to approach the Lokayuktha under Section 7 of the Lokayuktha Act (the Writ Petitions filed by him in W.P. No. 15502/2013 and W.P. No. 8437/2013, the disposal of the Writ Petitions with liberty to avail alternative and efficacious remedy in the form of Section 7 of Karnataka Lokayuktha Act 1996 is narrated. 24. As it emanates from the certified copies of the order sheet maintained by the Registry of Lokayuktha, considering the gravity of allegation in the complaint and also the CAG report, by the order of the Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfaction about commission of a cognizable offence registered the case and took up the matter for investigation, the FIR prepared by him will not substantiate such assumption. It is not a FIR registered by the Police suo moto on receipt of credible information. The Apex Court in the matter of Lalita Kumari's (supra) clinched the issue thus: 97. The Code contemplates two kinds of FIRs: the duly signed FIR under Section 154(1) is by the informant to the officer concerned at the police station. The second kind of FIR could be which is registered by the police itself on any information received or other than by way of an informant [Section 157(1)] and even this information has to be duly recorded and the copy should be sent to the Magistrate forthwith. The registration of FIR either on the basis of the information furnished by the informant under Section 154(1) of the Code or otherwise under Section 157(1) of the Code is obligatory. The obligation to register FIR has inherent advantages: 97.1. (a) It is the first step to access to justice for a victim. 97.2. (b) It upholds the rule of law inasmuch as the ordinary person brings forth the commission of a cognizab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut would continue as noticed by the Apex Court in Yunus Zia's case (supra), while referring to the judgment in the matter of State of Punjab v. Inder Singh (AIR 1978 SC 7)]. The independent nature of investigation conducted by the Police Wing of Lokayuktha fell for consideration of the Division Bench of this Court in State of Karnataka, by Chief Secretary and Others v. Basavaraj Guddapa Maliger reported in 2003 CrtLJ 4252. Referring to the judgments of C. Rangaswamaiah and others v. Karnataka Lokayuktha and others ((1998)6 SCC 66) and State of Karnataka v. Kempaiah ((1998)6 SCC 103), the Division Bench held that the pronouncement of Supreme Court in Rangaswamaiah's case (supra) would lead to the inevitable conclusion that the Lokayuktha or Upalokayuktha may request the Police Wing of a Police Officer of the competent jurisdiction to consider registering the case under the provisions of the P.C. Act, then the Police Wing of the Lokayuktha if notified as a Police Station under Section 2 of the Code of Criminal Procedure may make a preliminary investigation and the prima facie case if made out may register the FIR and conduct investigation in accordance with the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution of India, which reads thus: 148. Comptroller and Auditor-General of India - (1) There shall be a Comptroller and Auditor-General of India who shall be appointed by the President by warrant under his hand and seal and shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court. (2) Every person appointed to be the Comptroller and Auditor-General of India shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule. (3) The salary and other conditions of service of the Comptroller and Auditor-General shall be such as may be determined by Parliament by law and, until they are so determined, shall be as specified in the Second Schedule; Provided that neither the salary of a Comptroller and Auditor-General nor his rights in respect of leave of absence, pension or age of retirement shall be varied to his disadvantage after his appointment. (4) The Comptroller and Auditor-General shall not be eligible for further office either under the Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee scrutinizes the appropriation of the accounts of the State Government vis- -vis the report of the CAG. The duration of the Committee being limited to one year, a system is evolved by selecting the paragraphs from the audit report for detailed examination. During the course, the Ministers and the Executives of the Departments will be called upon to take corrective action and to furnish a proposed action to be taken in respect of the audit report. Thereafter the report of the Committee will be placed before the House. In the matter of Arun Kumar Agrawal (supra), it was observed that the CAG report is always subject to scrutiny by the Parliament and the Government can always offer its view point on the report of the CAG. In Paras-67 and 68 it was held thus: 67. The question that is germane for consideration in this case is whether this Court can grant reliefs by merely placing reliance on the CAG's Report. The CAG's Report is always subject to parliamentary debates and it is possible that PAC can accept the ministry's objection to the CAG Report or reject the report of the CAG. The CAG, indisputably is an independent constitutional functionary, however, it is for P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... listic to hold that the legislative intendment is that even if the authority concerned received the information about evasion of tax from the report of the CAG, there is no legal impediment on the part of the authorities concerned to act upon such information. 35. In my considered opinion the view taken by the Gauhathi High Court is more realistic. In this era of advanced Information Technology with the enablement conferred on the citizen of the country to have easy access to information by way of Right to Information Act, 2005, it is unrealistic to presume CAG report as a confidential document, till it meets finality in the Parliament or the Legislature. The Code no where contemplates a Police Officer acting under Section 157 of the Code to publish the source of information which drives him to register a suo moto complaint in respect of a cognizable offence. Likewise it is always open to a concerned/aggrieved informant to approach the jurisdictional Police even on suspicion about commission of a cognizable offence, to be dealt in accordance with Section 154(1) of the Code. But the concern is, availing the CAG report as the basis for registration of the criminal case subjecting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . 37. An alert citizen upholding the mission of 'combat against corruption' is certainly laudable. But it shall not be a free style battle. The penal laws under which the alleged offence fall will take over, if offence is proved in a court of law. The procedure contemplated by the Code to invoke criminal law into motion being the first step for registration of a criminal case, inroading of the procedure laid down by rule of law is not at all permissible. An attempt is made to justify the action of Lokayuktha Police that the case is not registered solely on the report of C.A.G. but also on the independent enquiry conducted by the C.I.D. Police on the direction of the Lokayuktha. But this justification does not stand to reason, neither the Lokayuktha nor the C.I.D. Police are the de facto complainants here. The matter having gone out of the premises of Lokayukt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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