The Karnataka High Court recently issued directions to be followed by trial courts before ordering registration of first information reports (FIRs) on corruption allegations against government officials based on private complaints. [Dr Ashok V v. State]
While holding that private complaints which are not accompanied by prior sanction of the government under Section 17A of the Prevention of Corruption Act should not be entertained by the magistrate/sessions judge, Justice M Nagaprasanna issued the following directions:
i) The complaint should narrate that the complainant has made his efforts to register a crime before the Karnataka Lokayukta and no action is taken by the police on the complaint. Mere statement in the complaint would not suffice but documentary evidence to demonstrate such fact should be appended to the private complaint.
ii) The private complaint should also append prior approval granted by the competent authority to register a private complaint, akin to a prior approval for an FIR to be registered by the Investigating Agency as obtaining under Section 17A of the Act. This would become a prerequisite to the concerned Court to refer the matter for investigation under Section 156(3) of the Cr.P.C.
iii) The aforesaid direction (ii) would be applicable only if the offences alleged would be the ones punishable under the Prevention of Corruption Act or the allegation would be an amalgam of offences both under the Prevention of Corruption Act and the Indian Penal Code. This direction at (ii) will not be applicable if the alleged offences are only of the Indian Penal Code.
Justifying the need for such directions, the Court said,
“These directions become necessary in the light of the fact that once the matter is referred for investigation the Police will have no choice but to register the crime. Therefore, such approval being appended to the private complaint is sine qua non for maintainability of the complaint.”
For a sessions judge to entertain a private complaint against a public servant, the complainant must submit an affidavit under the Oaths Act, 1969 accompanying the private complaint, which should not be a verifying affidavit, it added.
The petitioner in the present case, V Ashok, is an officer of the Backward Classes Department. He moved the High Court to quash an order passed by the Principal District & Sessions Judge, Chikkaballapur, which had directed an investigation by the Anti-Corruption Bureau (ACB) based on a private complaint accusing him of corruption.
The Court quashed the order for investigation into the complaint made by RTI activist Syed Malik Pasha. The complaint alleged offences under various sections of Indian Penal Code (IPC), and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act (PC Act).
Importantly, Pasha had not filed a complaint with the jurisdictional police or the wing of the then ACB. Instead, he lodged a private complaint against multiple officers, including the petitioner and four suppliers.
In light of the above, the Court held,
“The case at hand forms a classic illustration of misuse and abuse of law by the 2nd respondent/complainant. If the 2nd respondent had preferred a complaint before the Karnataka Lokayukta, the complaint would have been forwarded to the competent authority seeking permission under Section 17A to register a crime and crime would have been then registered only after prior approval from the competent authority.”
By invoking Section 200 of the Code of Criminal Procedure (CrPC), which provides for examination of complainants, such complainants are attempting to bypass the strictness of Section 17A of the PC Act, the Court said. Section 17A bars investigation into alleged offences by public servants without prior sanction from the government.
Allowing this practice could lead to frivolous and vexatious litigation, the judge added.
The Court also observed that it has encountered numerous instances where complainants opt for private complaints rather than approaching the investigating agency, such as the Karnataka Lokayukta. Instead, they directly approach the magistrate or the sessions judge.
“At that stage, what the Magistrate/Sessions Judge would do, is refer the matter under Section 156 (3) for investigation. Once the matter is referred for investigation, the Police / Lokayukta would have no choice but to register a crime. What happens in this process is the protective filter for vexatious, frivolous or malicious prosecution against the public servants created by the Parliament by the amendment in the year 2018 bringing in Section 17A to the Act is rendered illusory,” the Court observed.
While deeming the current proceedings against the petitioner an abuse of the process of law that would result in the miscarriage of justice, the Court allowed the quashing of the case.
Senior Advocate Sandesh J Chouta along with Advocate Devaraju appeared for petitioner, while Advocate BB Patil appeared for the State.
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