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TMI Blog2016 (1) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation into various issues highlighted in the C.A.G. report No. 6 of 2010-11 relating to Government of Karnataka on acquisition, denotification and allotment of land by the K.I.A.D.B. The Division Bench of this Court headed by the then Hon'ble Chief Justice opined that "......the petitioner or any such public spirited person has an alternative and more appropriate remedy available to him in the form of provisions of Section 7 of the Karnataka Lokayuktha Act, 1984 and the Lokayuktha having also the power to investigate any action, the alternative remedy appears to be more appropriate for investigation of the grievances and allegations contained in the petition" and the petition came to be disposed of leaving liberty to the petitioner to approach the Lokayuktha for appropriate remedy. Another petition filed by the very same petitioner viz., Jayakumar Hiremath seeking action in respect of the C.A.G. report No. 3/2012 in W.P. No. 8347/2013 (GM-RES-PIL) was dismissed as not pressed. 3. In continuation of the above, the petitioner thereafter filed a complaint before the Lokayuktha to investigate the various issues highlighted in the C.A.G. report No. 6/2010-11 and also C.A.G. rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of P.C. Act. As per para-5 of the order in the above W.P. No. 15502/2013 to the query of the Court in this regard, learned Counsel practically threw up his hands with the submission that 'it is for the investigating agency to identify the persons who could be arraigned for specific offences under the relevant provisions of law'. 5. However, as per the summary of the prosecution case, in the FIR, the allegation against the petitioner is: "In W.P. No. 41228/2015 (Crime No. 38/2015) pertaining to 6 acres 10 guntas of land in Sy. Nos. 171/3, 172/5 and 172/6 of Kothanur village, the petitioner colluded with the landlords, BDA and other Department Officers indulged in their illegal transaction and gave up the land from acquisition. In W.P. No. 26395/2015 (Crime No. 42/2015) pertaining to land in Sy. No. 251 measuring 6 acres 18 guntas of Halagevaderahalli Village, Bangalore South Taluk, gave up from acquisition of land by conniving with the landlords and officials of other Department. In W.P. No. 26396/2015 (Crime No. 39/2015) pertaining to land in Sy. Nos. 5/1 and 6/3 measuring 1 acre 17 guntas of Bilekahalli village, Bangalore South Taluk. The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp;In W.P. No. 41237/2015 (Crime No. 46/2015) pertaining to land measuring 2 acres 36 guntas in Sy. Nos. 104/2, 104/3 and 104/4 of Uttarahalli village, Bangalore South Taluk, by conniving with the landlords and others against the recommendation of the Urban Development Department ordered to give up from acquisition. In W.P. No. 41238/2015 (Crime No. 48/2015) pertaining to land in Sy. Nos. 39/2B, 50/2, 51/1, 55/1, 57/1, 61, 64/1 and 66/1 of Rachenalli Village, Bangalore East Taluk, ordered to give up from acquisition without mentioning the survey number and the extent of the land against the report of the Urban Development Department, that except 1 acre 30 guntas out of 3 survey numbers, remaining land is not taken into possession and can be given up from acquisition. In W.P. No. 41239/2015 (Crime No. 49/2015) pertaining to 2 acres 21 guntas of land in Sy. No. 86/2 of Thanisandra village, Bangalore East Taluk, against the notice put up by the Under Secretary, Deputy Secretary of Urban Development Department by conniving with the landlords involved in the illegal transaction and gave up the land from acquisition. In W.P. No. 41240/2015 (Crime No. 50/2015) pert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation. 7. Each of the petition is filed for a writ in the nature of Certiorari to quash the FIRs and to declare that the report of the C.A.G. of India cannot be the basis for registration of the criminal case. It is a matter of record that originally the petition was filed by arraying the Karnataka Lokayuktha Police as sole respondent. However, the C.A.G. of India was later impleaded as respondent No. 2 and the State as respondent No. 3. 8. In W.P. No. 41228/2015, the learned Special Public Prosecutor for the Lokayuktha by placing reliance on a Circular of this Court in No. HCE:94/2001 dated 13.8.2002 submitted that the matter shall be posted before Division Bench when the Writ Petitioner is questioning under Articles 226 and 227 of the Constitution of India, the order of the Lokayuktha, who was the Chief Justice of this Court. Sri. C.V. Nagesh, learned Senior Counsel appearing for the petitioner responded that "the petitioner is not challenging any order passed by Lokayuktha, who was the Chief Justice of this Court and he is challenging the very registration of the FIR on the grounds urged in the petitions". In that view of the matter, the petitions are to be considered from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside or held illegal by any Court of law. In its administrative jurisdiction, the Government can drop the land from acquisition if the actual possession of the land is not taken over by the Government; the error of judgment of the authority can be subjected for judicial scrutiny but criminality cannot be attributed. In the light of the judgments of the Apex Court, in (1) (2012) 9 SCC 257 (Subramanian Swamy v. A. Raja) and (2) (1976) 1 SCC 700 (B.N. Bhagdey v. M.D. Bhagwat), the orders passed without routing the same through the Denotification Committee, no criminal proceeding can be initiated since the Denotification Committee has no statutory footing. 11. Learned Senior Counsel proceeds with his submission that none of the Denotification Orders is sent for the opinion of the Law Department as contemplated under Rule 30 of Karnataka Government (Transaction of Business) Rules, 1977. It is to be inferred that the denotification orders are legal and no wrong can be alleged against him. As per the opinion given by the then Advocate General, the notification under Section 16(2) of the Land Acquisition Act is not sufficient to hold that the land stood vested with the Government in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the FIR beyond the procedure contemplated under the Code of Criminal Procedure ('the Code' for brevity) is liable to be set aside. Reliance is placed on (2014) 2 SCC 1 in the matter of Lalita Kumari v. Government of Uttar Pradesh. One Hunsur Chandrashekar had filed a similar complaint in P.C.R. No. 15/2013 against the petitioner and others. Said complaint came to be rejected by the Lokayuktha Court holding that no case is made out. The order of de-notification dated 12.1.2010 came to be withdrawn by the Government on 4.11.2011. Aggrieved by the order of withdrawal, the land owners approached this Court in W.P. Nos. 42792-99/2011, 42800/2011 and 42831-34/2011. This Court set aside the Government Order withdrawing the earlier de-notifications and upheld the order passed by the petitioner dropping the acquisition proceedings. When the de-notification order is endorsed by this Court, it is illegal and improper to register the FIR and investigate into the very same action. 14. In the Submission of Sri. Krishna Dixit, learned ASG for respondent No. 2 (both written and oral), the Comptroller and Auditor General of India (for brevity 'C.A.G.'), an independent constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Speaker of the House. The Ministries/Departments concerned are required to intimate the Committee the collective action taken and the proposed action on all the paragraphs contained in the reports of the CAG. Once the report is placed before the President/Governor of the State, it is their constitutional obligation to place the same before the Parliament/State legislature. Once the report enters the House, it becomes the exclusive property of the House for discussion and debate which again would be regulated by the Rules of Procedure and Conduct of Business, in this case in Karnataka Legislative Assembly by virtue of Article 208(1) of the Constitution of India. The CAG report was placed before the Governor on 21.11.2012 and before the Assembly on 12.12.2012. As on the relevant date, 5 Chapters of the Report are discussed by the P.A.C., still 16 Chapters are yet to be taken for discussion. Since the report is in the process of consideration, no other authority can act upon said report, should any other authority adversely comment upon its veracity/correctness in as much as the House will be prejudiced by such a comment. 16. The Apex Court in Arun Kumar Agrawal (supra) and in Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act 1984, the Hon'ble Lokayuktha ordered for a report from Director General of Police, CID, Economic Offences and Special Status Units, Bangalore-1. On receipt of the report from the CID, the file was forwarded to the Superintendent of Police attached to Karnataka Lokayuktha. The CID report disclosed commission of cognizable offences by petitioner and others. The Lokayuktha or Upalokayuktha have no power to investigate the offences disclosed in CID report under the Karnataka Lokayuktha Act 1984. Hence, the Police attached to Lokayuktha Institution being empowered to investigate the offences under the P.C. Act, 1988 and IPC, took up the matter and registered the cases. No particular source is required to register the FIR if such source discloses commission of cognizable offence. The source of information received from CID disclosing the name of the petitioner along with other accused, who have participated in commission of offence, is the basis of registration of FIRs, the details found in Column 9 of the FIR are found in CID report. Hence, Lokayuktha Police are justified in registration of the cases. 19. The petitioner has given up the ground against Lokayuktha in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o to nullify the prosecution. The Apex Court in its judgment reported in 2013 AIR SCW 6660 in the matter of Vinod Raghuvanshi v. Ajay Arora and Others has cautioned "don't kill the still born child". The petitions are to be dismissed and the investigation shall not be curtailed at this stage. 21. Sri. A.G. Shivanna for respondent No. 3/State substantiates the action taken by Lokayuktha Police in registering the FIR and initiating investigation. 22. With the parties taking respective firm positions and on perusal of the 15 FIRs, which are sought to be quashed, following factors gain my attention: "1. Sustainability of a FIR, which is not in consonance with the procedure mandated in Section 154 Cr.P.C. 2. Constraint on use of the CAG report as a document in a criminal proceeding." 23. Re. Point No. 1: The FIRs, fifteen in number reveal that they are registered in respect of the offences under the P.C. Act allied offences under IPC and the Karnataka Land (Restriction on Transfer) Act 1991. The complainant's name is mentioned as Jayakumar Hiremath. Column 8 (b) wherein the details of the personal knowledge of the offence by the complainant is required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. - (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf (2)...........................................................". 26. If Jayakumar Hiremath had given any oral information regarding his allegation about commission of a cognizable offence, necessarily SHO would have reduced the same into writing. As such, it is the fundamentals of Criminal Justice that anybody can move the criminal law in motion. It does not call upon the de facto informant to be a victim or a witness to the alleged offence. The FIR not reflecting any such oral or written statement given by the de facto complainant that would have been translated into writing is definitely not in consonance with sub-section (1) of Section 154 of the Code. The so-called com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the consequential registration of the FIRs. Learned Spl.P.P. refers to the judgment of the Apex Court in the matter of Yunus Zia v. State of Karnataka (2015 AIR SCW 2478) in which case the Lokayuktha Police had registered a complaint suo moto on the basis of a newspaper publication and the said registration was endorsed by the Apex Court. 28. But the situation herein is entirely different. '.....for a message or communication to be qualified to be a first information report there must be something in the nature of a complaint or accusation or at least some information of the crime given with the object of setting the police or criminal law in motion (as per Patai Alias Krishna Kumar (supra). As such, the Lokayuktha is not invested with jurisdiction to probe into the offences under the Penal laws and a complaint lodged before the Lokayuktha cannot take over the colour of information of offence under Section 154(1) of the Code. It is a mistaken notion to say that Lokayuktha Police is obliged to abide by the order of the Lokayuktha to register and investigate the offences under the various laws quoted in the FIR. 29. The Police Officers in the State of Karnataka are on deputat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The summary of the prosecution case annexed to the FIR refers to irregularity committed by the petitioner and co-accused in reference to the particular case. Of course, the Apex court had directed investigation on the basis of the CAG report (in the matter of CPIL (supra) popularly identified as 2G Spectrum case) and endorsed investigation ordered by the High Court based on a letter of the CAG in Sushil Kumar Modi's case (supra). But now it is to be recalled that Jayakumar Hiremath filed W.P. No. 15502/2013 seeking investigation into various issues highlighted in the CAG report No. 6/2010-11 without naming anybody as accused and without making specific allegation under any statutory provision and the said writ petition was dismissed on the ground of availability of alternative remedy. His writ petition in W.P. No. 8347/2013 arraying the present petitioner and another former Chief Minister of Karnataka Sri. H.D. Kumarawamy on the allegation of illegal land de-notification was disposed as not pressed. The High Court in its writ jurisdiction ordering probe in respect of an allegation on the basis of CAG report is one thing and the Lokayuktha Police taking CAG report on his file as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties, Powers and Conditions of Service) Act 1971. He is the premier institution for carrying out audit and account in respect of government department and government instrumentalities. Under Section 10 of the Act of 1971 (supra) he compiles the accounts of the Union and States, prepares the annual account and submits to the President of India or Governor of the State or Administrator of the Union Territory. The report thereafter will be placed before the Parliament or the Legislature of the State. He discharges his function through Accountant General of the respective State. The audit extends to all the expenditures to ascertain whether the monies shown in the accounts as having been disbursed were legally available for such disbursement and whether the expenditure confirms to the authority which governs it. He also examines the decisions, which have financial implications including the propriety of the decision making. 33. After the audit reports are received in the Parliament/State Legislature, they are scrutinized by the PAC. In the State of Karnataka, having regard to the rules of procedure and conduct of business in Karnataka Legislative Assembly (Article 208(1) of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Nagaland - The final CAG report was subsequently laid before the Legislative Assembly and was referred to PAC - The Legislative Assembly found the CAG report to the unsustainable - The contention was the CAG report did not acquire legal authenticity and could not be construed as information within the meaning of Section 132(1) of the Income Tax Act. The High Court observed that, CAG report is a legislative paper and is a property of the House and its members......It is the exclusive prerogative of the House and its members to deliberate on the same as the report falls within the special jurisdiction of the House or its Committee.... The executive or the judiciary cannot be in legal and/or constitutional possession of the said report. The Division Bench of the Gauhati High Court in M.S. Associates v. Union of India addressing similar issue regarding 'information' within the meaning of Section 132 of the Income Tax Act, though was of the opinion that the CAG report is initially meant for the Parliament/Legislature, and undoubtedly a property of the House, further held that for the purpose of starting an investigation into evasion of tax, the source of information is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in (1998) 1 SCC held thus: "55.................. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts to an offence, it must be promptly investigated and the offender against whom a prima facie case is made out should be prosecuted expeditiously so that the majesty of law is upheld and the rule of law vindicated. It is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law". Further, in Subramanian Swamy v. Manmohan Singh (Ganguly J.) reported in (2012) 3 SCC it is observed thus: "68. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of the 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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