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IN THE HIGH COURT OF KARNATAKA, BANGALORE

DATED THIS THE 29TH DAY OF NOVEMBER, 2013

PRESENT

THE HON'BLE MR. D.H.WAGHELA, CHIEF JUSTICE

AND

THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA

W.A.No.4052/2013 C/w W.A.No.4053/2013 (GM-RES)

IN W.A.No.4052/2013

BETWEEN:

SRI. B.S.YEDDYURAPPA, S/O SIDDALINGAPPA, AGED 70 YEARS, No.381, 6TH CROSS, 80 FEET ROAD, RMV II STAGE, DOLLARS COLONY, BANGALORE-560 094, (SENIOR CITIZEN BENEFIT NOT CLAIMED) ... APPELLANT (BY SRI: S.M.CHANDRASHEKAR, SR. COUNSEL FOR SRI.PRABHULING.K.NAVADAGI, AND SMT.POORNIMA.R.ADVs.) AND: SRI. SIRAJIN BASHA, S/O T.ABDUL RAZAK, AGED ABOUT 52 YEARS, "JUSTICE LAWYERS" No.64/1, (KRISHNA BLOCK) BESIDES FORTIS HOSPITAL, 1ST MAIN, SHESHADRIPURAM, BANGALORE-560 020. ... RESPONDENT (BY SRI: NITIN.R, AND SRI.B.SIDDESWARA, ADVs.)

*****

R

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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA

HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED

IN THE WRIT PETITION NO.27810/2012 (GM-RES) DATED

21/05/2013.

IN W.A.No.4053/2013

BETWEEN: SRI. B.S.YEDDYURAPPA, S/O SIDDALINGAPPA, AGED 70 YEARS, NOW R/AT No.1, RACE-COURSE ROAD, BANGALORE-560 001, (SENIOR CITIZEN BENEFIT NOT CLAIMED) ... APPELLANT (BY SRI: S.M.CHANDRASHEKAR, SR. COUNSEL FOR SRI.PRABHULING.K.NAVADAGI, AND SMT.POORNIMA.R.ADVs.) AND: SRI SIRAJIN BASHA, S/O T.ABDUL RAZAK, AGED ABOUT 53 YEARS, "JUSTICE LAWYERS" No.64/1, (KRISHNA BLOCK) BESIDES FORTIS HOSPITAL, 1ST MAIN, SHESHADRIPURAM, BANGALORE-560 020. ... RESPONDENT (BY SRI: NITIN.R, AND SRI.B.SIDDESWARA, ADVs.)

*****

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.27811/2012 DATED 21/05/2013.

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THE JUDGMENT IN THESE APPEALS HAVING BEEN

RESERVED AND IT BEING LISTED FOR PRONOUNCEMENT

TODAY, NAGARATHNA J., PRONOUNCED THE FOLLOWING:

C.A.V. JUDGMENT

1. These appeals assail the orders of the learned Single

Judge dated 21/5/2013, in W.P.No.27810/2012 and

W.P.No.27811/2012.

Factual Background: 2. The relevant facts are that, the appellant, who is a

former Chief Minister of the State of Karnataka, had filed

writ petitions invoking Articles 226 and 227 of the

Constitution read with Section 482 of the Code of Criminal

Procedure, 1973 (hereinafter referred as “Cr.P.C.”, for

brevity) seeking quashing of private complaints bearing

PCR.No.5/2011, now Special C.C.No.19/2012 and

C.C.No.6/2011, now Special C.C.No.48/2012, filed by the

respondent before the XXIII Addl. City Civil & Session

Judge, Bangalore City, vide Annexure-A. The respondent

along with another person had sought sanction for

prosecution of the appellant on the basis of a

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representation made to His Excellency, the Governor of

Karnataka on 28/12/2010, under Section 19 of the

Prevention of Corruption Act, 1988 (hereinafter, referred to

as “the P.C. Act”, for brevity) as well as under Section 197

of the Cr.P.C. for offences alleged under Indian Penal

Code, 1860 (hereinafter, referred to as “IPC”, for short) as

well as under P.C.Act. Sanction for prosecution was

accorded by His Excellency, the Governor by an order

dated 21/01/2011 with regard to offences alleged under

IPC and Sections 13(1)(c) and 13(1)(d) of the P.C. Act.

On the basis of the order of sanction, the respondent had

filed five private complaints before XXIII Addl. City Civil

and Sessions Judge, Bangalore City who is designated as

the special Judge under the provisions of the P.C. Act, as

PCR. Nos.2/2011, 3/2011, 4/2011, 5/2011 and 6/2011.

These appeals are confined to PCR.Nos.5/2011 and

6/2011.

3. In PCR.No.5/2011, three instances are given

pertaining to the misconduct committed by the appellant

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and others. The first is with regard to alleged pecuniary

advantage received by M/s.Davalagiri Property Developers

Pvt. Ltd., promoted by the close relatives of the appellant.

The second is criminal breach of trust said to have been

committed by the appellant by illegal denotification of land

in Sy.No.15/1, 15/2 etc., of Sreerampura village, for the

benefit of M/s.Besto Infrastructure Bangalore Pvt. Ltd. The

third is the alleged illegal allotment of Site No.1 to Sri

B.Y.Raghavendra, son of the appellant and Site No.2 to

Smt. Bharati Shetty, MLC, in RMV - II Stage, Bangalore.

4. In PCR.No.6/2011, three instances have been

mentioned. The first is alleged illegal allotment of Site

No.33A, HSR Layout to Sri R.P.Shankar, maternal uncle of

Sri Sohan Kumar, son-in-law of the appellant and the

subsequent illegal transfer of that site by Sri.R.P.Shankar

to Sri Sohan Kumar. The second instance pertains to

alleged illegal gratification obtained by the appellant,

M/s.Davalagiri Properties and Developers, M/s.Bhagath

Homes Pvt. Ltd., and Ms.Shobha Karandlaje from

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M/s.Adarsh Developers-Group of Companies. The third is

with regard to alleged criminal breach of trust committed

by the appellant herein by illegal denotification of lands to

an extent of 5 Acres 13 Guntas in Sy.No.78 of Nagarabhavi

village, acquired for the formation of Nagarabhavi Ist

Stage Layout in willful disobedience of the orders of

Hon’ble Supreme Court and this Court.

5. The special Judge, took cognizance of the complaints

on 26/02/2011 under Section 200 of the Cr.P.C. and

Process was issued to the appellant on 23/02/2012 for the

offences punishable under Section 13(2) of the P.C. Act

and under Sections 405, 406, 420, 463, 465, 468 and 471

of the IPC and under Sections 3 and 4 of the Karnataka

Land (Restriction and Transfer) Act, 1991 read with

Section 120B of IPC, in both the complaints. It is these

complaints, which were under challenge in the writ

petitions.

6. The main issue raised by the appellant before the

learned Single Judge was, whether a private complaint

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could be filed under Section 190 read with Section 200 of

the Cr.P.C. against a public servant for the offences

alleged to have been committed under the provisions of

the P.C.Act. It was contended that the controversy

assumed importance in view of the Karnataka Lokayukta

Act, 1984 (hereinafter, referred is “the K.L.Act”) which is a

special enactment applicable to complaints against public

servants.

7. It was further contended that Cr.P.C. being a general

legislation and the K.L.Act being a special law, in terms of

Sections 4 and 5 of the Cr.P.C., the special law would

prevail over the general law. In other words, the provisions

of the K.L.Act would prevail over the provisions of the

Cr.P.C. The appellant had specifically raised the following

questions before the learned single Judge:

i) Whether after the promulgation of the

Lokayukta Act in Karnataka, there is a

substantive alteration by implication of

Section 200 Cr.P.C. and allied provisions?

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ii) Are certain provisions contained under the

Lokayukta Act repugnant to the provisions

contained under the Cr.P.C. and the

P.C.Act?

8. The respondent herein had contended before the

learned single Judge that the provisions of the K.L.Act and

P.C.Act operate in different fields and that there was no

repugnancy between them. That the two legislations are

sui generis and P.C. Act is a Central enactment as

compared to the K.L.Act, which is a State legislation. The

Court of the Special Judge is notified under the P.C. Act

and is not amenable to the provisions of K.L.Act. It was

also contended that the complaints were filed pursuant to

an order of sanction and that the Court of the Special

Judge had the jurisdiction to take cognizance of the

complaints. In the light of the above contentions, the

learned Single Judge framed the following question for his

consideration:

“Whether it would not be competent for a

private complaint to be filed under Section 200

of the Cr.P.C., against a public servant for

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offences punishable under the provisions of the

P.C.Act?”

9. After considering the statement of objects and

reasons of the K.L.Act, various provisions of that Act and

the relevant case law on the subject, learned Single Judge

held that it is not evident that there is any express

exclusion of the operation of any alternative measure

available to set the criminal law in motion. That where two

or more remedies are available the principles of election

would apply. And there is no repugnancy between the

provisions of the K.L.Act and Cr.P.C. Accordingly, the

learned Single Judge dismissed the writ petition. Being

aggrieved by the same, these appeals have been filed.

CONTENTIONS:

10. Learned Senior Counsel, Sri.S.M.Chandrashekar

appearing for the appellant, firstly contended that the

K.L.Act is a special legislation which prevails over the

general law i.e., the Cr.P.C. with regard to the filing of a

private complaint before the special court under Section

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200 read with Section 190 of the Cr.P.C. or lodging of

information under Section 154 of the Cr.P.C. against a

public servant. Elaborating the said contention, he stated

that both the enactments fall under Entries 1 and 2 of List

III (Concurrent List) of Schedule VII of the Constitution.

That the procedure prescribed for lodging a complaint are

distinct in each enactment. The enactments are

inconsistent and are in conflict with each other. For

instance under Section 14 of the K.L.Act, the requirement

of sanction is done away with, whereas under Section 197

of the Cr.P.C., or under Section 19 of P.C. Act sanction is

required before launching a prosecution against a public

servant. That the scheme of the K.L.Act makes it clear

that it is primarily an anti-corruption law, which has an

independent body to look into such complaints. As the

Lokayukta has the power to investigate, hence, the K.L.Act

impliedly repeals the provisions of the Cr.P.C. in the

matter of investigation of a public servant. In support of

this proposition regarding implied repeal, reliance is placed

on the following decisions: T.Barai Vs. Henry AH Hoe &

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another (1983 (1) SCC 177); Zaverbhai Amaidas v.

State of Bombay [(1955) 1 SCR 799]; Ratan Lal

Adukia v. Union of India [(1989) 3 SCC 537];

Municipal Council v. T.J. Joseph [(1964) 2 SCR 87]

and State of Orissa v. M.A.Tulloch and Co., [(1964) 4

SCR 461]. It was, hence contended that the K.L.Act

being a special enactment overrides the provisions of the

Cr.P.C. to the extent of investigation and launching of

prosecution, which stand impliedly repealed by the

provisions of the K.L.Act.

11. Elaborating on the factual matrix of the case, it was

stated that private complaints PCR.No.5/2011 and

C.C.No.6/2011 were filed by the respondent under Section

200 of the Cr.P.C. against the appellant herein alleging

commission of offences punishable under Section 405 of

the IPC and Section 13(1)(c) and 13(1)(d) of the P.C.Act.

That Sri. Y.S.V. Datta had filed a complaint on 18/11/2010

with regard to denotification of lands before the Lokayukta,

and the private complaints filed by the respondent before

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the special Judge are dated 24/01/2011. Both the

complaints are similar. In such a situation question would

arise as to whether a private complaint under Section 200

of the Cr.P.C. against a public servant for the offence

punishable under the P.C.Act is maintainable and also

whether a second complaint in respect of the same

allegations is maintainable in law.

12. Drawing our attention to the object and reasons of

the K.L.Act and also the scheme of that Act, it was

contended that K.L.Act being a special statute excludes the

application of the Cr.P.C. by implication, as per Sections 4

and 5 of the Cr.P.C. This is because the K.L.Act prescribes

safeguards before launching criminal proceedings against a

public servant. It was also contended that if parallel

actions i.e., investigation by the Lokayukta as well as

proceedings before the Special Judge are permitted, then it

would be an abuse of law as the special Judge would

exercise his power in the matter of receiving complaint and

order investigation or take cognizance of it which would

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undermine the exclusive power and authority of Lokayukta

under the K.L.Act. Thus, it was contended that initiation of

criminal proceeding against a public servant before any

other authority, Court or institution would be in derogation

of Sections 7 and 9 of the K.L.Act and in violation of

Articles 14 and 21 of the Constitution of India. It was

further contended that on the enforcement of K.L.Act, the

power of setting criminal law into motion against a public

servant is by virtue of Section 7 of that Act. It was

contended that there are three modes in which the

criminal law could be set in motion under the K.L.Act, i.e.,

on a reference by the Government under Section 7 of the

Act, by a complaint filed by any person under Section 9 of

the Act and by suo motu proceedings by the Lokyukta or

Upalokayukta.

13. Highlighting Sections 4 and 5 of the Cr.P.C., it was

contended that in view of the enforcement of the K.L.Act,

which is a special statute, the provisions of the Cr.P.C. are

impliedly excluded. Placing reliance on certain decisions of

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the Hon’ble Supreme Court on the interpretation of

statutes, it was contended that courts must avoid a

construction which would reduce statutes to become futile.

A statute must be so construed as to make it effective and

operative on the principles expressed in the maxim ut res

magis valeat quam pereat which means it is better for a

thing to have effect than to be made void. Placing reliance

on the maxim generalia specialibus non-derogant, i.e., the

general law should make way for the special statute, it was

contended that the K.L.Act, being a special Act enacted by

the State legislature, should prevail over the Cr.P.C, which

is a general code, though enacted by the parliament. It

was, therefore, contended that learned single Judge was

not right in dismissing the writ petitions. Under the

circumstances, it was urged that the order of the learned

single Judge be set aside and the prayers sought by the

appellant be granted by allowing the appeals.

14. Countering the aforesaid arguments of learned

Senior Counsel, Sri. Nitin, appearing for the respondent

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raised at the outset a preliminary objection on the

maintainability of these writ appeals. He contended that

the order of the learned single Judge was not passed in

exercise of the original jurisdiction of the High Court under

Article 226 of the Constitution of India. Therefore, an

appeal under Section 4 of the Karnataka High Court Act is

not maintainable. It was contended that when orders of

the subordinate criminal court are assailed, it cannot be

said that the exercise of jurisdiction by the learned Single

judge is on the original side, that in the instant case the

exercise of jurisdiction by the learned single Judge is one

under Section 482 of the Cr.P.C. though the writ petition

was invoking Articles 226 and 227 of the Constitution.

That the learned single Judge was not exercising his

original jurisdiction, but was dealing with the exercise of

jurisdiction by the special Judge. Thus, the exercise of

jurisdiction by the learned single Judge was one under

Article 227 of the Constitution and therefore, no intra-court

appeal would lie.

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15. On the legality of filing a private complaint under

Section 200 of the Cr.P.C. for an offence under the

P.C.Act, it was contended that such a complaint was

maintainable, having regard to the dicta of the Hon’ble

Supreme Court in the case of A.R.Antulay v. Ramdas

Sriniwas Nayak and another (AIR 1984 SCC 718)

(Antulay) and Dr. Manmohan Singh v. Subramanya

Swamy (2012 (3) SCC 64). It was contended that

though in common parlance the special judge is referred to

as “Lokayukta Judge”, he is in fact posted as a special

Judge under the provisions of P.C. Act and that Judge does

not exercise powers under K.L.Act. That the Lokayukta

police appointed under the provisions of Section 15 of the

K.L.Act are designated as specialized investigating agency

under Section 17 of the P.C.Act. Thus, there is no conflict

between the provisions of the Cr.P.C. and the K.L.Act. The

two enactments operate in two different fields and a

complaint filed under the provisions of the K.L.Act would

not bar a complaint being filed under the provisions of the

Cr.P.C. On the legality of the instant complaints filed

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under Section 200 of the Cr.P.C. before the special Judge,

reliance was placed on B.S.Yeddyurappa v. State of

Karnataka(ILR 2012 Kar 1183) and P.R.Venugopal v.

G.P.Rajashekar & another (2003 (4) KLJ 280).

16. Adverting to the role of Lokayukta or Upalokayukta,

the decisions in the following three cases were brought to

our notice viz., C.Rangaswamaiah & others V.

Karnataka Lokayukta & others (AIR 1998 SC 2496);

State of Karnataka, by Chief Secretary, Bangalore &

others v. Basavaraj Guddappa Maliger (ILR 2003

Kar. 3589) and Pandurang @ Sathyabodh v. State by

Police Inspector, Police Wing, Karnataka Lokayukta

Police Station, Dharwad (2008 (5) KLJ 34). It was,

on that basis, contended that there is no merit in these

appeals and they deserve to be dismissed.

17. Appellant’s counsel contended in his reply that

Section 7 and Section 9 of the K.L.Act are relevant for the

purposes of this case as compared to the provisions of

Cr.P.C. That the judgment in Rangaswamaiah, is not a

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binding precedent. Similarly, the judgment in

M.Maheshan v. State of Karnataka and Others [1999

(4) KLJ 500] is not applicable, according to him.

18. That in Rangaswamaiah the implication of Section 4

and 5 of Cr.P.C. on the K.L.Act was not taken into

consideration. The exclusive jurisdiction of Lokayukta to

investigate into a criminal offence alleged against a public

servant on coming into force of the K.L.Act, was not

considered in those cases. That the K.L.Act being a

complete code in itself, prescribing the procedure for

launching criminal action after investigation against a

public servant, it does not permit a parallel investigation or

a prosecution to be launched against a public servant, as it

has now to be only under the provisions of the K.L.Act.

Any other mode of launching a prosecution would be

opposed to due process of law enshrined in the

Constitution. That despite the dictum in Antulay, it

emerges that the Karnataka State Legislature has intended

an exclusive investigation agency to investigate criminal

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offences allegedly committed by a public servant under the

provisions of the K.L.Act. Therefore, any commencement

of prosecution or investigation into offences in derogation

of Sec.7 and 9 of the K.L.Act would be violative of Article

21 of the Constitution. It was reiterated that the reliefs

sought by the appellant in the writ petition be granted by

setting aside the impugned orders.

19. Having regard to the rival submissions, the following

points would arise for our consideration:-

i) Whether these writ appeals are maintainable

under Section 4 of the Karnataka High Court Act?

ii) If the answer to point No.1 is in the affirmative,

whether the provisions of the K.L.Act impliedly

repeal the provisions of the Cr.P.C.?

iii) Whether the orders of the learned single Judge call

for any interference?

iv) What order?

Point No.1: In support of the contention that the writ

appeals are not maintainable, learned counsel for the

respondent relied upon the decision of the seven judges

Bench of this Court in Tammanna D. Battal & Ors., etc v.

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Ms.Reunka R.Reddy & Ors.[AIR 2009 Kar. 119]. That

decision arose in the context of the issue as to whether an

appeal from the order of a learned Single Judge in exercise

of power conferred under Article 227 of the Constitution

against any order made deciding an issue by any Court

subordinate to the High Court, in the course of a suit or

other proceeding not finally disposed of, would lie to a

Bench consisting of two or other Judges of the High Court

under Section 4 of the Karnataka High Court Act, 1961.

The majority consisting of six Judges held that no such

appeal would lie under Section of the Karnataka High Court

Act against the order of the Single Judge passed in

exercise of the power conferred under Article 227 of the

Constitution, in a matter arising against an order made

deciding an issue and passed by the Court subordinate to

the High Court in the course of a suit or other proceedings

not finally disposed of, which earlier attracted Section 115

of the CPC and was governed under Section 8 of the

Karnataka High Court Act. It was held that, in all other

matters which did not attract Section 115 of the CPC and

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not governed under Section 8 of the Karnataka High Court

Act, an appeal would lie against the order passed under

Section 9 (xii) of the Karnataka High Court Act read with

Articles 226 and 227 of the Constitution of India and Rules

2(1), 26 and 39 of the Writ Proceedings Rules as well as

Article 11 (sa) to Schedule II to Karnataka Court Fees and

Suits Valuation Act, 1858.

That decision is not applicable to the instant case

where a challenge is in fact made to the filing of the

complaints by the respondent before the special Judge. In

fact, the prayer of the petitioner is for quashing of the

private complaints filed under the provisions of Cr.P.C. by

the respondent before the special Judge. Of course,

consequential prayers with regard to taking of cognizance

of the complaints on 26/2/2011 (Annexure-B) and the

order dated 21/4/2012 ordering issuance of summons to

the accused/appellant herein are also assailed. As the

quashing of the private complaints are the quintessence of

the challenge, we hold that the writ petitions could as well

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be considered under Article 226 of the Constitution. Hence,

against the impugned orders of the learned Single Judge,

the writ appeals are maintainable. Point No.1 is

accordingly answered.

Point No.2:

Having regard to the spectrum of controversy

spanning over three enactments namely, the Cr.P.C.,

P.C.Act and K.L.Act, we propose to approach the

controversy raised in these appeals, keeping in mind the

object and scope as well as scheme of each of the

enactments, the interplay of the enactments and their

operation in their respective fields and their impact on

other laws and thereby unravel the conundrum and answer

the questions raised in these appeals.

At this stage, it is necessary to firstly-look at the

legal frame work of the relevant provisions under

consideration.

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Legal Framework:

Criminal Procedure Code:

Section 4:- Trial of offences under the

Indian Penal Code and other laws :- (1) All offences

under the Indian Penal Code (45 of 1860) shall be

investigated, inquired into, tried, and otherwise dealt with

according to the provisions hereinafter contained.

(2) All offences under any other law shall be

investigated, inquired into, tried, and otherwise dealt with

according to the same provisions, but subject to any

enactment for the time being in force regulating the

manner or place of investigating, inquiring into, trying or

otherwise dealing with such offences.

Section 5 - Saving :- Nothing contained in this

Code shall, in the absence of a specific provision to the

contrary, affect any special or local law for the time being

in force, or any special jurisdiction or power conferred, or

any special form of procedure prescribed, by any other law

for the time being in force.

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P.C.ACT, 1988:

Section 3: Power to appoint special Judge:

(1) The Central Government or the State Government

may, by notification in the Official Gazette, appoint as

many special Judges as may be necessary for such area or

areas or for such case or group of cases as may be

specified in the notification to try the following offences,

namely:-

(a) any offence punishable under this Act; and

(b) any conspiracy to commit or any attempt to commit or

any abetment of any of the offences specified in clause (a).

(2) A person shall not be qualified for appointment as a

special Judge under this Act unless he is or has been a

Sessions Judge or an Additional Sessions Judge or an

Assistant Sessions Judge under the Code of Criminal

Procedure, 1973 (2 of 1974).

Section 4: Cases triable by special Judges:-

(1) Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974), or in any other law

for the time being in force, the offence specified in sub-

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section (1) of section 3 shall be tried by special Judges

only.

(2) Every offence specified in sub-section (1) of section 3

shall be tried by the special Judge for the area within

which it was committed, or, as the case may be, by the

special Judge appointed for the case, or where there are

more special Judges than one for such area, by such one

of them as may be specified in this behalf by the Central

Government.

(3) When trying any case, a special Judge may also try any

offence, other than an offence specified in section 3, with

which the accused may, under the Code of Criminal

Procedure, 1973 (2 of 1974), be charged at the same trial.

(4) Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974), a special Judge

shall, as far as practicable, hold the trial of an offence on

day-to-day basis.

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Section 5: Procedure and powers of special Judge:-

(1) A special Judge may take cognizance of offences

without the accused being committed to him for trial and,

in trying the accused persons, shall follow the procedure

prescribed by the Code of Criminal Procedure, 1973 (2 of

1974), for the trial of warrant cases by the Magistrates.

(2) A special Judge may, with a view to obtaining the

evidence of any person supposed to have been directly or

indirectly concerned in, or privy to, an offence, tender a

pardon to such person on condition of his making a full and

true disclosure of the whole circumstances within his

knowledge relating to the offence and to every other

person concerned, whether as principal or abettor, in the

commission thereof and any pardon so tendered shall, for

the purposes of sub-sections (1) to (5) of section 308 of

the Code of Criminal Procedure, 1973 (2 of 1974), be

deemed to have been tendered under section 307 of that

Code.

(3) Save as provided in sub-section (1) or sub-section

(2), the provisions of the Code of Criminal Procedure, 1973

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(2 of 1974), shall, so far as they are not inconsistent with

this Act, apply to the proceedings before a special Judge;

and for purposes of the said provisions, the Court of the

special Judge shall be deemed to be a Court of Session and

the person conducting a prosecution before a special Judge

shall be deemed to be a public prosecutor.

(4) In particular and without prejudice to the generality

of the provisions contained in sub-section (3), the

provisions of section 326 and 475 of the Code of Criminal

Procedure, 1973 (2 of 1974), shall, so far as may be, apply

to the proceedings before a special Judge and for the

purposes of the said provisions, a special Judge shall be

deemed to be a Magistrate.

(5) A special Judge may pass upon any person

convicted by him any sentence authorized by law for the

punishment of the offence of which such person is

convicted.

(6) A special Judge, while trying an offence punishable

under this Act, shall exercise all the powers and functions

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exercisable by a District Judge under the Criminal Law

Amendment Ordinance, 1944 (Ord. 38 of 1944).

* * * * *

Section 13: Criminal misconduct by a public servant:

(1) A public servant is said to commit the offence of

criminal misconduct-

(a) if he habitually accepts or obtains or agrees to accept

or attempts to obtain from any person for himself or for

any other person any gratification other than legal

remuneration as a motive or reward such as is mentioned

in section 7; or

(b) if he habitually accepts or obtains or agrees to accept

or attempts to obtain for himself or for any other person,

any valuable thing without consideration or for a

consideration which he knows to be inadequate from any

person whom he knows to have been, or to be, or to be

likely to be concerned in any proceeding or business

transacted or about to be transacted by him, or having any

connection with the official functions of himself or of any

public servant to whom he is subordinate, or from any

-: 29 :-

person whom he knows to be interested in or related to

the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or

otherwise converts for his own use any property entrusted

to him or under his control as a public servant or allows

any other person so to do; or

(d) if he-

(i) by corrupt or illegal means, obtains for himself or

for any other person any valuable thing or pecuniary

advantage; or

(ii) by abusing his position as a public servant, obtains

for himself or for any other person any valuable thing or

pecuniary advantage; or

(iii) while holding office as a public servant, obtains for

any person any valuable thing or pecuniary advantage

without any public interest; or

(e) if he or any person on his behalf, is in possession or

has, at any time during the period of his office, been in

possession for which the public servant cannot

-: 30 :-

satisfactorily account, of pecuniary resources or property

disproportionate to his known sources of income.

Explanation:- For the purposes of this section, “known

sources of income” means income received from any lawful

source and such receipt has been intimated in accordance

with the provisions of any law, rules or orders for the time

being applicable to a public servant.

(2) Any public servant who commits criminal

misconduct shall be punishable with imprisonment for a

term which shall be not less than one year but which may

extent to seven years and shall also be liable to fine.

* * * * *

19. Previous sanction necessary for prosecution:

(1) No court shall take cognizance of an offence punishable

under sections 7, 10, 11, 13 and 15 alleged to have been

committed by a public servant, except with the previous

sanction:

(a) in the case of a person who is employed in

connection with the affairs of the Union and is not

-: 31 :-

removable from his office save by or with the sanction of

the Central Government, or that Government;

(b) in the case of a person who is employed in

connection with the affairs of a State and is not removable

from his office save by or with the sanction of the State

Government, of that Government;

(c) in the case of any other person, of the authority

competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises

as to whether the previous sanction as required under sub-

section (1) should be given by the Central Government or

the State Government or any other authority, such

sanction shall be given by that Government or authority

which would have been competent to remove the public

servant from his office at the time when the offence was

alleged to have been committed.

(3) Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974)-

(a) no finding, sentence or order passed by a special

Judge shall be reversed or altered by a court in appeal,

-: 32 :-

confirmation or revision on the ground of the absence of,

or any error, omission or irregularity in, the sanction

required under sub-section (1), unless in the opinion of

that court, a failure of justice has in fact been occasioned

thereby;

(b) no court shall stay the proceedings under this Act

on the ground of any error, omission or irregularity in the

sanction granted by the authority, unless it is satisfied that

such error, omission or irregularity has resulted in a failure

of justice;

(c) no court shall stay the proceedings under this Act

on any other ground and no court shall exercise the

powers of revision in relation to any interlocutory order

passed in any inquiry, trial, appeal or other proceedings.

(4) in determining under sub-section(3) whether the

absence of, or any error, omission or irregularity in, such

sanction has occasioned or resulted in a failure of justice

the court shall have regard to the fact whether the

objection could and should have been raised at any earlier

stage in the proceedings.

-: 33 :-

Explanation:-For the purposes of this section,-

(a) error includes competency of the authority to grant

sanction;

(b) a sanction required for prosecution includes reference

to any requirement that the prosecution shall be at the

instance of a specified authority or with the sanction of a

specified person or any requirement of a similar nature.

Karnataka Lokayukta Act, 1984:

7. Matters which may be investigated by the

Lokayukta and an Upa-lokayukta:– (1) Subject to

the provisions of this Act, the Lokayukta may

investigate any action which is taken by or with the

general or special approval of

(a) (i) the Chief Minister;

(ii) a Minister;

(iii) a member of the State

Legislature;

(iv) the Chairman and the Vice-Chairman

(by whatever name called) or a member

of an authority, board or a committee, a

statutory or non-statutory body or a

corporation established by or under any

law of the State Legislature including a

-: 34 :-

society, co-operative society or a

Government company within the

meaning of section 617 of the Companies

Act, 1956, nominated by the State

Government;

in any case where a complaint involving a grievance

or an allegation is made in respect of such action.

(b) any other public servant holding a

post or office carrying either a fixed pay, salary

or remuneration of more than rupees twenty

thousand per month or a pay scale the

minimum of which is more than rupees twenty

thousand, as may be revised, from time to

time in any case where a complaint involving a

grievance or an allegation is made in respect of

such action or such action can be or could have

been, in the opinion of the Lokayukta, recorded

in writing, the subject of a grievance or an

allegation.

(2) Subject to the provisions of this Act,

an Upa-lokayukta may investigate any action

which is taken by or with the general or

specific approval of, any public servant not

being the Chief Minister, Minister, Member of

the Legislature, Secretary or other public

-: 35 :-

servant refereed to in sub-section (1), in any

case where a complaint involving a grievance

or an allegation is made in respect of such

action or such action can be or could have

been, in the opinion of the Upa-lokayukta

recorded in writing, the subject of a grievance

or an allegation.

(2-A) Notwithstanding anything

contained in sub-sections (1) and (2), the

Lokayukta or an Upa-lokayukta may

investigate any action taken by or with the

general or specific approval of a public servant,

if it is referred to him by the State

Government.

(3) Where two or more Upa-lokayuktas

are appointed under this Act, the Lokayukta

may, by general or special order, assign to

each of them matters which may be

investigated by them under this Act:

Provided that no investigation made by

an Upa-lokayukta under this Act, and no action

taken or things done by him in respect of such

investigation shall be open to question on the

ground only that such investigation relates to a

-: 36 :-

matter which is not assigned to him by such

order.

(4) Notwithstanding anything contained

in sub-sections (1) to (3), when the office of a

Upa-lokayukta is vacant by reason of his

death, resignation, retirement, removal or

otherwise or when an Upa-lokayukta is unable

to discharge his functions owing to absence,

illness or any other cause, his function may be

discharged by the other Upa-lokayukta, if any,

and if there is no other Upa-lokayukta by the

Lokayukta.

Section 8: Matters not subject to investigation:-

(1) Except as hereinafter provided, the Lokayukta or

an Upa-lokayukta shall not conduct any investigation

under this Act in the case of a complaint involving a

grievance in respect of any action, -

(a) if such action relates to any matter

specified in the Second Schedule; or

(b) if the complainant has or had, any

remedy by way of appeal, revision, review or

other proceedings before any Tribunal, Court

officer or other authority and has not availed of

the same.

-: 37 :-

(2) The Lokayukta or an Upa-lokayukta shall

not investigate: -

(a) any action in respect of which a

formal and public inquiry has been ordered

with the prior concurrence of the Lokayukta or

an Upa-lokayukta, as the case may be;

(b) any action in respect of a matter

which has been referred for inquiry, under the

Commission of Inquiry Act, 1952 with the prior

concurrence of the Lokayukta or an Upa-

lokayukta, as the case may be;

(c) any complaint involving a grievance

made after the expiry of a period of six months

from the date on which the action complained

against becomes known to the complainant; or

(d) any complaint involving an allegation

made after the expiry of five years from the

date on which the action complained against is

alleged to have taken place:

Provided that he may entertain a

complaint referred to in clauses (c) and (d) if

the complainant satisfies that he had sufficient

-: 38 :-

cause for not making the complaint within the

period specified in those clauses.

(3) In the case of any complaint

involving a grievance, nothing in this Act shall

be construed as empowering the Lokayukta or

an Upa-lokayukta to question any

administrative action involving the exercise of

discretion except where he is satisfied that the

elements involved in the exercise of the

discretion are absent to such an extent that

the discretion can prima facie be regarded as

having been improperly exercised.

Section 9: Provisions relating to complaints

and investigations:- (1) Subject to the provisions

of this Act, any person may make a complaint under

this Act to the Lokayukta or an Upa-lokayukta:

Provided that in case of a grievance, if the person

aggrieved is dead or for any reason, unable to act for

himself, the complaint may be made or if it is

already made, may be prosecuted by his legal

representatives or by any other person who is

authorized by him in writing in this behalf.

-: 39 :-

(2) Every complaint shall be made in the form of a

statement supported by an affidavit and in such form

and in such manner as may be prescribed.

(3) Where the Lokayukta or an Upa-lokayukta

proposes, after making such preliminary inquiry as

he deemed fit, to conduct any investigation under

this Act, he.-

(a) shall forward a copy of the complaint and in the

case of an investigation initiated suo motu by him,

the opinion recorded by him to initiate the

investigation under sub-section (1) or (2), as the

case may be, of Section 7 to the public servant and

the Competent Authority concerned;

(b)shall afford to such public servant an opportunity

to offer his comments on such complaint; or opinion

recorded under sub-section (1) and (2) of Section 7

as the case may be;

(c) may make such order as to the safe custody of documents relevant to the investigation, as he

deems fit.

(4)Save as aforesaid, the procedure for conducting

any such investigation shall be such, and may be

held either in public or in camera, as the Lokayukta

-: 40 :-

or the Upa-lokayukta, as the case may be, considers

appropriate in the circumstances of the case.

(5) The Lokayukta or the Upa-lokayukta may, in his

discretion, refuse to investigate or cease to

investigate any complaint involving a grievance or an

allegation, if, in his opinion,-

(a) the complaint is frivolous or

vexatious or is not made in good faith;

(b) there are no sufficient grounds for

investigating or, as the case may be, for

continuing the investigation; or

(c) Other remedies are available to the

complainant and in the circumstances of the

case it would be more proper for the

complainant to avail such remedies.

(6) In any case where the Lokayukta or an Upa-

lokayukta decides not to entertain a complaint or to

discontinue any investigation in respect of a

complaint he shall record his reasons therefor and

communicate the same to the complainant and the

public servant concerned.

(7) The conduct of an investigation under this Act

against a Public servant in respect of any action shall

not affect such action, or any power or duty of any

-: 41 :-

other public servant to take further action with

respect to any matter subject to the investigation.

* * * * *

Section 12: Reports of Lokayukta, etc. (1)

If, after investigation of any action involving a

grievance has been made, the Lokayukta or an Upa-

lokayukta is satisfied that such action has resulted in

injustice or undue hardship to the complainant or to

any other person, the Lokayukta or an Upa-

lokayukta shall, by a report in writing, recommend to

the Competent Authority concerned that such

injustice or hardship shall be remedied or redressed

in such manner and within such time as may be

specified in the report.

(2) The Competent Authority to whom a report is

sent under sub-section(1) shall, within one month of

the expiry of the period specified in the report,

intimate or cause to be intimated to the Lokayukta

or the Upa-lokayukta the action taken on the report.

(3) If, after investigation of any action involving an

allegation has been made, the Lokayukta or an Upa-

lokayukta is satisfied that such allegation is

substantiated either wholly or partly, he shall by

report in writing communicate his findings and

-: 42 :-

recommendations along with the relevant

documents, materials and other evidence to the

Competent Authority.

(4) The Competent Authority shall examine the

report forwarded to it under sub-section (3) and

within three months of the date of receipt of the

report, intimate or cause to be intimated to the

Lokayukta or the Upa-lokayukta the action taken or

proposed to be taken on the basis of the report.

(5)If the Lokayukta or the Upa-lokayukta is satisfied

with the action taken or proposed to be taken on his

recommendations or findings referred to in sub-

sections (1) and (3), he shall close the case under

information to the complainant, the public servant

and the Competent Authority concerned; but where

he is not so satisfied and if he considers that the

case so deserves, he may make a special report

upon the case to the Governor and also inform the

Competent Authority concerned and the

Complainant.

(6) The Lokayukta shall present annually a

consolidated report on the performance of his

functions and that of the Upa-lokayukta under this

Act to the Governor.

-: 43 :-

(7) On receipt of the special report under sub-section

(5), or the annual report under sub-section (6), the

Governor shall cause a copy thereof together with an

explanatory memorandum to be laid before each

House of the State Legislature.

(8) The Lokayukta or an Upa-lokayukta may at his

discretion make available, from time to time, the

substances of cases closed or otherwise disposed of

by him which may appear to him to be of general,

public, academic or professional interest in such

manner and to such persons as he may deem

appropriate.

Section 13: Public servant to vacate office if

directed by Lokayukta etc:- (1) Where after

investigation into a complaint the Lokayukta or an

Upa-lokayukta is satisfied that the complaint

involving an allegation against the public servant is

substantiated and that the public servant concerned

should not continue to hold the post held by him, the

Lokayukta or the Upa-lokayukta shall make a

declaration to that effect in his report under sub-

section (3) of section 12. Where the competent

authority is the Governor, State Government or the

Chief Minister, it may either accept or reject the

declaration after giving an opportunity of being

-: 44 :-

heard. In other cases, the competent authority shall

send a copy of such report to the State Government

which may either accept or reject the declaration

after giving an opportunity of being heard. If it is

not rejected within a period of three months from

the date of receipt of the report or the copy of the

report, as the case may be it shall be deemed to

have been accepted on the expiry of the said period

of three months.

(2) If the declaration so made is accepted or is

deemed to have been accepted, the fact of such

acceptance or the deemed acceptance shall,

immediately be intimated by registered post by the

Governor, the State Government or the Chief

Minister if any of them is the competent authority

and the State Government in other cases then,

notwithstanding anything contained in any law,

order, notification, rule or contract of appointment,

the public servant concerned shall, with effect from

the date of intimation of such acceptance or of the

deemed acceptance of the declaration,

(i) if the Chief Minister or a Minister

resigns his office of the Chief Minister, or

Minister, as the case may be.

-: 45 :-

(ii) If a public servant falling under

items (e) and (f), but not falling under items

(d) and (g) of clause (12) of section 2, be

deemed to have vacated his office: and

(iii) If a public servant falling under

items (d) and (g) of clause (12) of section 2,

be deemed to have been placed under

suspension by an order of the Appointing

Authority.

Provided that if the public servant is a Member of

an All India Service as defined in Section 2 of the

All India Services Act, 1951 (Central Act 61 to

1951) the State Government shall take action to

keep him under suspension in accordance with the

rules or regulations applicable to his service.

Section 14: Initiation of Prosecution:- If after

investigation into any complaint the Lokayukta or

an Upa-lokayukta is satisfied that the public

servant has committed any criminal offence and

should be prosecuted in a Court of law for such

offence, then, he may pass an order to that effect

and initiate prosecution of the public servant

concerned and if prior sanction of any authority is

required for such prosecution, then,

-: 46 :-

notwithstanding anything contained in any law,

such sanction shall be deemed to have been

granted by the appropriate authority on the date of

such order.

* * * * *

Section 24. Removal of doubts :- (1) For the

removal of doubts it is hereby declared that

nothing in this Act shall be construed as

authorising the Lokayukta or an Upa-lokayukta to

investigate any action which is taken by or with the

approval of, -

(a) any Judge as defined in Section 19

of the Indian Penal Code;

(b) any officer or servant of any Civil or

Criminal Court in India;

(c) the Accountant-General for

Karnataka;

(d) the Chief Election Commissioner,

the Election Commissioners and the Regional

Commissioners referred to in Article 324 of the

Constitution and the Chief Electoral Officer,

Karnataka State;

(e) the Speaker of the Karnataka

Legislative Assembly or the Chairman of the

Karnataka Legislative Council; and

-: 47 :-

(f) the Chairman or a Member of the

Karnataka Public Service Commission,

(2) The provisions of this Act shall be in

addition to the provisions of any other

enactment or any rule or law under which any

remedy by way of appeal, revision, review or

in any other manner is available to a person

making a complaint under this Act in respect of

any action and nothing in this Act shall limit or

affect the right of such person to avail of such

remedy.

20. Since these cases focus on the role and functioning

of the Lokayukta and Upalokayukta under the provisions of

K.L.Act, at the outset, it may be apposite to advert to the

background of the institution of the Lokayukta leading up

to the enforcement of the K.L.Act, 1984 w.e.f 15/1/1986 in

the State.

21. Any reference herein to the word Lokayukta would

encompass the expression Upalokayukta also, unless

stated otherwise.

-: 48 :-

22. In countries having a democratic form of

Government, it is observed that in recent times vast

powers including discretionary powers, are conferred on

officers and officials incharge of administration. It is also

observed that while exercising powers, there is scope for

abuse or misuse of such powers by persons manning the

administration, leading to corruption and mal-

administration. In fact, the adage “power corrupts and

absolute power corrupts absolutely” attributable to Lord

Acton is apt in this context. The greater the power given

to the executive in the field of governance, greater is the

need to safeguard the citizen from arbitrary and unfair

exercise of power. In countries following the Common Law

system, control of administrative excesses is normally

through courts. The superior courts review administrative

decisions in the light of principles of Administrative Law.

Of course in India judicial review of administrative action

does not involve itself with merits of the administrative

decisions as a Court would not substitute its views or

discretion for that of the officer or official on whom the

-: 49 :-

power is conferred by law. The efficacy of judicial review

of administrative action is limited to the decision making

process involving several salutary principles which have

been evolved over a period of time. With the growth and

variety of administrative actions in the realm of

governance in democratic countries, the need to control

such actions not only judicially, but by an internal

mechanism, which can be conveniently called

administrative control or check has become imperative.

The quest for having an efficacious mechanism to control

administration had led to the birth of the institution of

‘Ombudsman’. It is said that the institution of Ombudsman

has been in vogue in the Scandinavian countries for over a

century and was adopted in Sweden as early as in 1809.

Amongst the Common Law countries having parliamentary

democracies, New Zealand was the first country to opt for

an Ombudsman system in the year 1962. In England it

was established as a system in the year 1966.

-: 50 :-

23. Essentially, an Ombudsman acts as an external

agency, outside the administrative hierarchy to probe into

administrative faults. The object of its functioning is the

setting and maintaining of standards of good governance

in government departments. An Ombudsman also receives

complaints of the citizens which can be investigated by him

or by his experienced staff. After investigation, the

Ombudsman can give relief to the aggrieved party in

certain situations. Though an Ombudsman does not have

the power to quash or reverse an administrative decision,

which is in the realm of judicial review, the Ombudsman in

a way follows an inquisitorial procedure and establishes

the truth in the matter of certain administrative actions

taken by the executive.

24. In India the Administrative Reforms Commission in

its Report submitted in the year 1966, proposed adoption

of an Ombudsman-type institution in India for redressal of

the citizens’ grievances vis-à-vis the functioning of the

democratic government. The Government of India

-: 51 :-

accepted the recommendations of the Commission and the

Lok Sabha passed the Lokpal and Parliament Bill, 1968.

But before the said Bill could be passed by the Rajya

Sabha, the Lok Sabha was dissolved and, consequently,

the Bill lapsed. The second attempt to pass the legislation

was made in the year 1971 when another Bill was issued in

the Lok Sabha, but again that Bill was aborted owing to

the dissolution of the Lok Sabha. A third attempt made in

the year 1977, also met with the same fate. Therefore, all

earlier attempts to have an Ombudsman-type system at

the central level have been frustrated. Recently, the

Lokpal Bill was presented before the Parliament in the year

2001 and once again on account of dissolution of the 13th

Lok Sabha, the Bill lapsed. In the year 2011, once again a

Bill has been introduced, but is yet to be passed by the

Parliament.

25. As far as the State of Karnataka is concerned, the

Karnataka State Vigilance Commission was functioning as

a precursor to the institution of Lokayukta. Subsequently,

-: 52 :-

the Karnataka State Vigilance Commission Rules, 1980 and

the Karnataka Public Authorities (Disciplinary Proceedings

against Employees) Act, 1982 were enacted.

Subsequently, the Karnataka Lokayukta Ordinance, 1984

was promulgated and thereafter the Karnataka Lokayukta

Act, 1984 was enacted and that Act has come into force

with effect from 15/01/1986.

26. Sub-section (2) of Section 24 of the K.L.Act states

that the provisions of the Act shall be in addition to the

provisions of any other enactment or any rule or law under

which any remedy by way of appeal, revision, review or in

any other manner is available to a person making a

complaint under this Act in respect of any action and

nothing in the Act shall limit or affect the right of such

person to avail of such remedy. The implication of this

provision in the K.L.Act vis-à-vis other remedies available

to a person to seek redressal of his grievance under other

enactments particularly Cr.P.C. and P.C.Act would have to

be examined in the light of rival contentions.

-: 53 :-

27. Before venturing to do that, it would be useful to

have a birds eye view of Cr.P.C. with special reference to

Sections 4 and 5 and also the interpretation of those

Section by the Hon’ble Supreme Court by keeping in mind

the rival contentions of the parties.

Code of Criminal Procedure:

28. The Cr.P.C. is an Act which has consolidated and

amended the law relating to criminal procedure. The

Parliament has enacted the Code under Entry II List III of

VII Schedule of the Constitution, which is the concurrent

List. The Cr.P.C. is essentially a procedural law which

provides a machinery for the investigation, trial and

punishment of offenders against substantive criminal law

such as the Indian Penal Code. The Cr.P.C. also provides a

machinery for punishment of offences under other penal

acts, unless otherwise barred. It is also worth noting that

certain provisions of the Cr.P.C. deal with substantive law

such as maintenance proceedings.

-: 54 :-

29. The Cr.P.C. deals with the constitution of criminal

Courts and offices and their powers. Provisions dealing

with setting criminal law in motion by investigation by the

police, jurisdiction of the criminal courts in enquiries and

trial, initiation and commencement of proceedings before

Magistrates, framing of charges, trial of cases by a

Sessions Court, trial of warrant and summons cases by a

Magistrate, summary trial, plea-bargaining, various

provisions regarding enquiries and trials, passing of

judgment on conclusion of a criminal trial and sentencing

of the accused are elaborately set out in Cr.P.C. There are

several other provisions relating to appeals, reference,

revision, transfer of criminal cases, provisions relating to

bail and bond etc.

30. Sub-section (1) of Section 4 of the Cr.P.C. states

that all offences under the IPC shall be investigated,

inquired into, tried, and otherwise dealt with according to

the provisions of the Cr.P.C. Sub-Section (2) states that

all offences under any other law shall be investigated,

-: 55 :-

inquired into, tried and otherwise dealt with according to

the same provisions, but subject to any enactment for the

time being in force regulating the manner or place of

investigating, inquiring into, trying or otherwise dealing

with such offences. Section 5 is a saving clause. It states

that nothing contained in the Cr.P.C. shall, in the absence

of specific provision to the contrary, affect any special or

local law for the time being in force, or any special

jurisdiction or power conferred, or any special form of

procedure prescribed, by any other law for the time being

in force.

31. On a combined reading of Sections 4 and 5 of the

Cr.P.C., it means that all offences under the IPC and also

offences under any other law would have to be dealt with

under the provisions of the Cr.P.C., but insofar as the

offences under any other law are concerned, if there are

specific provisions regulating the manner or place of

investigation, inquiry or trial, or otherwise dealing with the

offences, then the specific provisions would apply. As

-: 56 :-

Section 5 is a saving clause, it again re-emphasises that

the Code would apply even to special or local laws unless

there is a specific provision stating that a special or local

law would apply.

32. The decisions of the Hon’ble Supreme Court on the

interplay of Sections 4 and 5 of Cr.P.C. may be referred to

at this stage.

a) In Rohtas v. State of Haryana and another

[AIR 1979 SC 1839], while interpreting Section 5 of

Cr.P.C., it was stated that Section 5 carves out a clear

exception to the provisions of the trial of an offence under

any special or local law for the time being in force or any

special jurisdiction or power conferred or any special form

of procedure prescribed by any other law for the time

being in force. Thus, it was held that Haryana Children

Act, 1974 was fully protected by the provisions of Section

5 of Cr.P.C. and therefore, that Act had overriding effect

over Cr.P.C.

-: 57 :-

b) In Ajmer Singh v. Union of India and Others

[AIR 1987 SC 1646], also, it was held that the effect of

Section 5 of Cr.P.C. is clearly to exclude the applicability of

Cr.P.C. in respect of proceedings under any special or local

law or any special jurisdiction or form of procedure

prescribed by any other law. Infact, in that case,

reference was also made to Section 475 of Cr.P.C. which

stated that the provisions of Cr.P.C. were not intended to

apply in respect of proceedings before the Courts-Martial.

c) In Narcotics Control Bureau v. Kishan Lal and

others [AIR 1991 SC 558], the provisions of the

Narcotic Drugs and Psychotropic Substances Act, 1985

were considered in the light of Section 5 of Cr.P.C. and it

was held that the provisions of that Act prevail over

Section 439 of Cr.P.C. in the matter of grant of bail as that

Act was a special enactment.

d) In Gangula Ashok and another V. State of

Andhra Pradesh (2000)2 SCC 504), the Hon’ble

Supreme Court held that Section 4(2) of Cr.P.C. makes it

-: 58 :-

clear that if another enactment contains any provision

which is contrary to the provisions of the Cr.P.C., such

other provision would apply in place of a particular

provision of the Cr.P.C. If there is no such contrary

provision in other laws, then provisions of the Cr.P.C.

would apply to the matters covered therein. In this case,

the question was whether the Special Court constituted

under the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 could take cognizance

of any offence without the case being committed to that

Court. It was also held that Section 5 of the Cr.P.C.

cannot be brought in aid for supporting the view that the

Court of Session specified under the said Act can obviate

the interdict contained in Section 193 of the Cr.P.C. as

long as there is no provision in the Act empowering the

Special Court to take cognizance of the offence as a court

of original jurisdiction. It was, therefore, held that a

Special Court under the Act is essentially a Court of

Session and it can take cognizance of the offence when the

case is committed to it by the Magistrate in accordance

-: 59 :-

with the provisions Cr.P.C. In other words, a complaint or

a charge-sheet cannot straight away be laid before the

Special Court under the Act. The provisions of the Cr.P.C.

would apply.

e) Referring to an earlier decision in Directorate

of Enforcement V. Deepak Mahajan (1994) 3 SCC

440), it was held that on a reading of Section 5 in

juxtaposition with Section 4(2) of the Cr.P.C., Section 5

only relates to the extent of application of the Code in the

matter of territorial and other jurisdiction, but does not

nullify the effect of Section 4(2). In short, the provisions

of the Cr.P.C. would be applicable to the extent and in the

absence of any contrary provision in any special Act or any

special provision excluding the jurisdiction or applicability

of the Cr.P.C.

f) In State of Madhya Pradesh & another V.

Rameshwar Rathod (1990) 4 SCC 21) also, it has been

held that normally under the Criminal Procedure Code, the

criminal courts of the country have the jurisdiction and the

-: 60 :-

ouster of the ordinary criminal court in respect of a crime

can only be inferred if that is the irresistible conclusion

flowing from necessary implication of the new Act. In this

case, the Court was considering the provisions of the

Essential Commodities Act, 1955 in juxtaposition to the

Cr.P.C.

g) In Attiq-Ur-Rehman V. Municipal

Corporation of Delhi & another (1996) 3 SCC 37), the

question was, whether in the absence of appointment of a

Municipal Magistrate, a Metropolitan Magistrate could take

cognizance and try an accused for commission of an

offence punishable under the Delhi Municipal Corporation

Act, 1957. It was held that on a plain reading of Section 4

of the Cr.P.C., it emerged that the provisions of the Cr.P.C.

are applicable where an offence under the IPC or any other

law is being investigated, inquired into, tried or otherwise

dealt with. The jurisdiction of the criminal courts under

Section 4 of the Cr.P.C. is comprehensive and exhaustive

to the extent that no valid machinery is set up under any

-: 61 :-

other law for trial of any particular case. The jurisdiction

of the ordinary criminal court cannot be said to have been

excluded, where there is no valid machinery for the

exercise of jurisdiction by the Judicial Magistrate or the

Metropolitan Magistrate as the case may be.

h) In Motilal V. Central Bureau of

Investigation & another (2002)4 SCC 713), the

question involved was, whether the Central Bureau of

Investigation (CBI) was authorized to investigate an

offence, which was punishable under the Wild Life

(Protection) Act, 1972 in view of the contention that the

said Act was a self-contained Code. The Hon’ble Supreme

Court rejected the contention that the said Act was a

complete code and therefore, CBI would have no

jurisdiction to investigate the offence under that Act. It

was held that the special procedure prescribed under that

Act was limited to taking cognizance of the offence as well

as powers given to other officers for inspection, arrest,

search and seizure as well as recording of statement and

-: 62 :-

for compounding offences and other provisions. But for

the trial of the offences, the Cr.P.C. was required to be

followed and that there was no other specific provision to

the contrary in the Act, the special procedure prescribed

under the Act was limited to taking cognizance of the

offence which would prevail as per Section 4(2) of the

Cr.P.C., but the operation of the rest of the Cr.P.C. was not

excluded under that Act.

i) In Vivek Gupta V. Central Bureau of

Investigation & another (2003)8 SCC 628), the

precise question was, as to whether the appellant therein

could be tried and charged together with two other

accused by a Special Judge under the provisions of the

P.C.Act, in view of the fact that the appellant therein had

been charged only under Section 120-B read with Section

420 of IPC, while the other two accused had been

additionally charged for the offence under Section 13(2)

read with Section 13(1)(d) of the P.C.Act. The Hon’ble

Supreme Court held that the provisions of the Cr.P.C.

-: 63 :-

applied to trials under the P.C.Act, subject to certain

modifications as contained in Section 22 of the Act and

their exclusion either expressly or by necessary implication

contained therein. Thus, a public servant who was

charged for an offence under the provisions of the P.C.Act

could be charged by the special Judge at the same trial of

any offence under the IPC if the same was committed in a

manner contemplated under Section 220 of the Cr.P.C.

j) In Jeewan Kumar Raut & another V.

Central Bureau of Investigation (2009) 7 SCC 526),

the applicability of sub-section(2) of Section 167 of the

Cr.P.C. to a case where cognisance had been taken under

Section 22 of the Transplantation of Human Organs Act,

1994 (TOHO) on a complaint filed by the respondent

therein was the question raised before the Hon’ble

Supreme Court. It held that TOHO being a special statute,

Section 4 of the Cr.P.C., which ordinarily would be

applicable for investigation into a cognizable offence or

other provisions, may not be applicable. It was reiterated

-: 64 :-

that Section 4(1) of the Cr.P.C. provided for investigation,

inquiry, trial etc., under the Cr.P.C. Section 4(2),

however, specifically provided that offences under any

other law shall be investigated, inquired into, tried and

otherwise dealt with according to the same provisions, but

subject to any enactment for the time being in force

regulating the manner or place of investigating, inquiring

into, trial or otherwise dealing with such offences.

33. Thus, what emerges from the aforesaid judgments is

that unless there are specific provisions, in any enactment

regulating the manner of investigating, inquiring into,

trying or otherwise dealing with offences under the IPC or

other laws, the provisions of the Cr.P.C., would apply.

34. An example of the extent of applicability of the

provisions of Cr.P.C. in the backdrop of the P.C.Act, can be

analyzed at this stage as in these cases the complaints are

filed under Section 200 of the Cr.P.C. alleging offences

under the provisions of IPC and P.C.Act.

-: 65 :-

The P.C. Act :

35. The P.C. Act, 1988, was enacted to consolidate and

amend the law relating to the prevention of corruption and

for matters connected therewith. Section 2(b) defines

public duty to mean a duty in the discharge of which the

State, the public or the community at large has an

interest. The explanation states that State includes a

corporation established by or under the Central, Provincial

or State Act, or an authority or a body owned or controlled

or aided by the Government or a Government company as

defined in Section 617 of the Companies Act, 1956. Public

Servant is defined in Clause (c) of Section 2 of the Act.

36. Section 3 states that the Central Government or

State Government may, by notification in the Official

Gazette, appoint as many special Judges as may be

necessary for such area or areas or for such case or group

of cases as may be specified in the notification to try the

following offences, namely:- (a) offences punishable under

the Act; and (b) any conspiracy to commit or any attempt

-: 66 :-

to commit or any abetment of any of the offences specified

in (a), above. Sub-section (2) states that a person shall

not be qualified for appointment as a special Judge unless

he is or has been a sessions Judge or an Additional

Sessions Judge or an Assistant Sessions Judge as

understood under the provisions of Cr.P.C.

37. Section 4 begins with a non-obstante clause and it

states that notwithstanding anything contained in the

Cr.P.C. 1973 or in any other law for the time being in

force, the offences specified in sub-section (1) of Section 3

shall be tried by special Judges only. Sub-section (2)

states that the jurisdictional special Judge must try the

offences or the special Judge appointed for the case, where

there are more special Judges than one for any area within

which the offence is committed. Sub-section (3) states

that while trying any case, a special Judge may also try

any offence, other than an offence specified in Section 3,

with which the accused may, under the Cr.P.C., be charged

under the same trial. Therefore, if there are certain other

-: 67 :-

offences punishable under the IPC along with the offences

under Section 3 of the Act, then the special Judge has the

jurisdiction to also try the offences alleged to have been

committed under the IPC also. Sub-section(4) states that

notwithstanding anything contained in the Cr.P.C., a

special Judge shall, as far as practicable, hold the trial of

an offence on day-to-day basis.

38. Section 5 of the Act deals with the procedure and

powers of special Judge. Sub-section (1) states that a

special Judge can take cognizance of the offences without

the accused being committed to him for trial and in trying

the accused, shall follow the procedure prescribed by the

Cr.P.C., for the trial of warrant cases by the Magistrates.

Sub-section(2) deals with the power of pardon to a person

who brings forth the evidence before the special Judge

relating to an offence under the Act and pardon so

tendered shall be deemed to be one under Section 307 of

the Cr.P.C. Sub-section (3) states that save as provided in

sub-section (1) or sub-section (2) of Section 5, the

-: 68 :-

provisions of the Cr.P.C., shall so far as they are not

inconsistent with the P.C.Act, apply to the proceedings

before a special Judge. For purposes of the said

provisions, a special Judge shall be deemed to be a

Magistrate, [vide sub-section(4)]. Sub-section (5) states

that a person convicted for an offence under the Act may

be sentenced or punished in accordance with law for the

punishment of the offence.

39. Section 6 deals with the power of the Sessions Judge

to try certain offences by way of a summary procedure in

respect of certain offences notwithstanding anything

contained in sub-section(1) of Section 5 of the P.C.Act or

Section 260 of the Cr.P.C. But Section 262 to 265 of the

Cr.P.C., as far as may be, would apply to such trial. Sub-

section(2) states that notwithstanding anything to the

contrary contained in the P.C.Act or in the Cr.P.C., there

shall be no appeal by a convicted person in any case tried

summarily and sentenced under certain circumstances.

-: 69 :-

40. Chapter III of the P.C.Act deals with offences and

penalties. Chapter IV deals with investigation into cases

under the Act. Chapter V deals with sanction for

prosecution and other miscellaneous provisions.

Sub-section (1) of Section 19 states that no court shall

take cognizance of an offence punishable under Sections 7,

10, 11, 13 and 15 of the P.C.Act alleged to have been

committed by a public servant, except with the previous

sanction - (a) in the case of a person employed in

connection with the affairs of the Union, of the Central

Government; (b) in the case of a person employed in

connection with the affairs of a State, of the State

Government; (c) in the case of any other person, of the

competent authority to remove him from the office. Sub-

section(3) again begins with a non-obstante clause. It

states that notwithstanding anything contained in the

Cr.P.C. - (a) no finding, sentence or order passed by a

special Judge shall be reversed or altered by a court in

appeal on the ground of the absence of, or any error or

omission or irregularity in the sanction required under sub-

-: 70 :-

section (1), unless in the opinion of the Court, a failure of

justice has in fact been occasioned thereby; (b) no court

can stay the proceedings under the Act on the ground of

any error, omission or irregularity in the sanction granted

by the authority, unless it is satisfied that such error,

omission or irregularity has resulted in a failure of justice;

(c) no court can stay the proceedings under the Act on any

other ground and no court can exercise the powers of

revision in relation to any interlocutory order passed in any

inquiry, trial, appeal or other proceedings. Sub-section (4)

states that while determining under sub-section (3) as to

whether there was any absence of, or any error, omission

or irregularity in granting the sanction had occasioned or

resulted in a failure of justice, the Court shall have regard

to the fact as to whether the objections could have been

raised to the granting of sanction at any earlier stage in

the proceedings.

41. Section 22 states that the provision of the Cr.P.C.,

while applicable to the proceedings in relation to an

-: 71 :-

offence punishable under the Act shall be subject to certain

modifications. The modifications are with regard to

Sections 243(1), 309(2), 317(2) and 397(1) of the Cr.P.C.

Section 23 again begins with a non-obstante clause vis-à-

vis Cr.P.C with regard to particulars in a charge to be

stated in relation to an offence under clause (c) of Sub-

section (1) of Section 13 of the P.C.Act.

42. Section 28 states that the P.C.Act shall be in addition

to, and not in derogation of, any other law for the time

being in force and that nothing contained in the Act shall

exempt any public servant from any proceeding which

might, apart from the Act, shall be instituted against him.

43. A bare reading of the provisions of the P.C.Act

reveals that, provisions of the Cr.P.C are applicable to

proceedings before the special Judge under the Act in so

far as they are not inconsistent with the Act. This is

because, in respect of certain procedures, the P.C. Act

makes a departure from the Cr.P.C. while applying certain

sections of the Cr.P.C. to that Act in other aspects.

-: 72 :-

Therefore, the P.C.Act is not only a piece of substantive

legislation, but also partly provides a special procedure for

the trial of offences under that Act and is thus an

adjectival statute.

44. When the provisions of P.C.Act are read in

juxtaposition with the provisions of Cr.P.C. including

Sections 4 and 5 of the Cr.P.C. the effect would have to be

analysed in the light of the judgements of the Hon’ble

Supreme Court.

45. In Antulay, the Constitution Bench of the Hon’ble

Supreme Court stated that Cr.P.C. is the parent statute

which provides for investigation, enquiry into and trial of

cases and unless there is a specific provision in another

statute which enacts a different procedure to be followed,

the proceedings of the Cr.P.C. cannot be displaced. In

Gangula Ashok (supra), it has been reiterated that sub-

section (2) of Section 4 of the Cr.P.C. makes it clear that,

subject to the provisions in other enactments, all offences

under other laws shall also be investigated, inquired into,

-: 73 :-

tried and otherwise dealt with under the provisions of the

Cr.P.C. This means that if any other enactment contains

any provision, which is contrary to the provisions of the

Cr.P.C., such other enactment would apply in place of the

particular provision of the Cr.P.C. If there is no such

contrary provision in other laws, then provisions of the

Cr.P.C. would apply to the matters covered thereby.

46. Thus, under sub-section (1) of Section 5 of the P.C.

Act, the special Judge has been empowered to take

cognizance of an offence under the Act without the

accused being committed to him for trial and it further lays

down that the special Judge while trying the accused, shall

follow the procedure prescribed under the Cr.P.C., for the

trial of warrant cases by a Magistrate. Therefore, the

special Judge has been given such powers and has to

discharge some of the functions as are exercised or

discharged by a Judicial Magistrate under the Cr.P.C. while

at the same time, he can pass a sentence upto seven

years.

-: 74 :-

47. Thus, under the Act, the special Judge for certain

purposes exercises powers and discharges some of the

functions as exercised or discharged by a Judicial

Magistrate under the Cr.P.C. and for certain other purpose

the special Judge is deemed to be a sessions Judge. Such

a position gains more clarity on a reading of sub-section

(3) of Section 5. The said Section can be read into two

parts. The first part is a saving clause vis-à-vis sub-

section (1) and sub-section (2) of Section of the Act. Next

is a general clause in the context of applicability of Cr.P.C.

to the proceedings before the special Judge. But there

again an exception has been carved out, the provisions of

the Cr.P.C. would apply in so far as they are not

inconsistent with the provisions of P.C.Act. In other

words, the provisions of the P.C.Act would be applicable as

it is a special statute with regard to the law relating to

prevention of corruption, while the Cr.P.C. is a general

statute dealing with trial of penal offences in general.

Therefore, all provisions of the Cr.P.C. which are

-: 75 :-

inconsistent with the provisions of the P.C. Act are not

applicable to a proceeding under the P.C. Act.

Inconsistency means when there is a variance or a

difference in the procedures indicated in the two statutes.

Then, the procedure as stated in the P.C.Act would

override the procedure in the Cr.P.C as the P.C.Act is a

special enactment as compared to Cr.P.C. But if there is

no inconsistency between what is stated under the P.C. Act

or Cr.P.C., then both the provisions could be harmoniously

read. On the other hand, if the provisions of the P.C. Act

do not expressly exclude the applicability of the provisions

of the Cr.P.C. or are silent in respect of certain matters,

then the provisions of the Cr.P.C. would apply. In other

words there is nothing in the P.C. Act, which excludes the

applicability of the procedure contained in the Cr.P.C. in a

proceeding pending before a special Judge except only

those for which specific provision is made under the P.C.

Act.

48. The other part of sub-section (3) of Section 5 of the

P.C. Act says that for the purpose of Cr.P.C., the Court of

-: 76 :-

the special Judge shall be deemed to be a Court of Session

and the person conducting the prosecution before a special

Judge shall be deemed to be a public prosecutor. The

deeming provision creates a legal fiction by which the

special Judge has to be treated as a Sessions Judge. At

the same time, under sub-section (4) of Section 5 of the

P.C.Act, the special Judge shall be deemed to be a

Magistrate for certain purposes under the Cr.P.C. as

specified in it. Therefore, Section 5 of the P.C. Act creates

a unique combination of a Session Judge and a Magistrate

in a special Judge under the P.C. Act. This is the effect of

the legal fiction created on account of a deeming clause in

the section. Thus, the special Judge acts as a Court of

Session and would conduct trial of an offence committed

under the P.C.Act as a warrant case and the trial is

conducted without requiring a committal by a Magistrate.

In other words, the special Judge takes cognizance of the

offence as a magistrate would under the provisions of

Cr.P.C. For all other purposes, the special Judge is a

Sessions Judge.

-: 77 :-

49. In Antulay, the Hon’ble Supreme Court held that a

private complaint can be entertained by the special Judge

in respect of offences committed by a public servant under

the provisions of the P.C.Act. The Supreme Court also

held that in criminal jurisprudence anyone can set the

criminal law in motion except where the statute enacting

or creating an offence indicates to the contrary. Therefore,

when the special Judge can receive a private complaint

alleging commission of an offence under the P.C. Act and

proceed on that basis, it implies that the provisions of the

Cr.P.C. would automatically become applicable except

where a different procedure is indicated under the

provisions of the P.C. Act at various stages of the

prosecution.

50. Further when a special Judge receives a complaint of

facts which constitute an offence punishable under the

provisions of the P.C. Act, by virtue of Section 190 of the

Cr.P.C., the special Judge acts as a Magistrate, in which

event the special Judge may take cognizance of any

-: 78 :-

offence upon receiving the complaint filed under Section

200 of the Cr.P.C. To take cognizance, in other words

means to take judicial notice of an offence with a view to

initiate proceedings regarding such an offence. It is

needless to observe that cognizance is taken of the offence

and not of the offender. Before initiation of proceedings by

the special Judge, there must be cognizance of an offence

which means the special Judge must apply his mind to the

contents of the complaint having regard to the procedure

prescribed in Chapter XV of the Cr.P.C. which deals with

complaints to Magistrates. Though cognizance of an

offence is taken, it would not mean commencement of

criminal proceedings. It is only an application of mind of

the special Judge to the suspected commission of an

offence, that is to the facts mentioned in the complaint for

taking further action. If a special Judge takes cognizance

of an offence, then the provision of Section 200 of the

Cr.P.C. onwards would apply. But where a special Judge

applies his mind for the purpose of ordering investigation

under Section 156(3) of the Cr.P.C. read with the relevant

-: 79 :-

provisions of P.C. Act or issues a warrant for the purpose

of investigation, it cannot be said that cognizance of any

offence has been taken. Thus it is only when a special

Judge has applied his mind and taken cognizance of an

offence that Chapter XV of the Cr.P.C., would come into

play (P.R.Chari V/s. State of U.P. AIR 1951 SC 207).

51. Under Section 200 of the Cr.P.C., the Special Judge

taking cognizance of an offence punishable under the

provisions of the P.C. Act, has to examine upon oath the

complainant and any other witness present. The object of

the examination is to find out whether the complaint is

justifiable or frivolous. Where the special Judge, after

taking notice of the accusation made in the complaint,

records the sworn statement of the complainant and

witnesses, it implies that taking cognizance of the

complaint is completed. If a prima facie case is made out

on examination of the complainant and his witnesses, then

process may be issued to the accused.

-: 80 :-

52. Section 202 of the Cr.P.C. deals with the

circumstances under which there can be a postponement

of issue of process by the special Judge. If, after

considering the statement, of the complainant and of the

witnesses on oath and as a result of the inquiry or

investigation (if any) under Section 202, the special Judge

is of the opinion that there is no sufficient ground for

proceeding, he shall dismiss the complaint, and in every

such case, he shall briefly record reasons for so doing. But

if in the opinion of the special Judge taking cognizance of

an offence there is sufficient grounds for proceeding, then

the case has to proceed. Thus the aforesaid powers of the

Magistrate are exercised by the special Judge under the

provisions of P.C.Act. If there are sufficient grounds to

proceed under the provisions of the P.C.Act on taking

cognizance of the offence, the proceeding would be as if it

is a warrant case in terms of sub-section(1) of Section 5 of

the P.C.Act. The above narrative thus highlights the

extent of applicability of the provisions of the Cr.P.C. with

regard to launching of a prosecution before a special Judge

-: 81 :-

under the provisions of the P.C. Act as has been done in

the instant case.

53. In State of West Bengal V. Mohammed Khalid

(1995) 1 SCC 684), it is opined that taking cognizance

means taking notice of an offence. This would include the

intention of initiating judicial proceedings against the

offender in respect of that offence or taking steps to see

whether there is any basis for initiating judicial

proceedings or for other purposes. The word ‘cognisance’

indicates the point when a Magistrate or a Judge first takes

judicial notice of an offence. It is entirely a different thing

from initiation of proceedings; rather it is the condition

precedent to the initiation of proceedings by the Magistrate

or the Judge. Cognisance is taken of cases and not of

persons.

54. In Dilawar Singh V. Parvinder Singh (2005 (12)

SCC 709 and State of Karnataka V. Pastor P.Raju

(2006)6 SCC 728, it is observed that taking cognizance

of an offence is not the same thing as issuance of process.

-: 82 :-

Cognizance is taken at the initial stage when the

Magistrate applies his judicial mind to the facts mentioned

in a complaint or to a police report or upon information

received from any other person that an offence has been

committed. The issuance of process is at a subsequent

stage when after considering the material placed before it

the court decides to proceed against the offenders against

whom a prima facie case is made out.

55. To reiterate, it can be said that in the matter of

procedure for the trial of offences Cr.P.C. is a general

code, while the P.C. Act is a special statute, in which

event, the provisions of the P.C. Act would prevail over the

provisions of the Cr.P.C. Thus, where the provisions of the

P.C. Act expressly exclude or modify the provisions of the

Cr.P.C., then the provisions of the Cr.P.C. would not apply

or apply in terms of the provisions of the P.C. Act as the

case may be. Where the provisions of the P.C. Act do not

expressly exclude or modify the provisions of the Cr.P.C.,

then in that event the provisions of the Cr.P.C. would

-: 83 :-

become applicable to the P.C.Act. Such an interpretation

is made having regard to the fact that the P.C. Act is a

special statute while the Cr.P.C. is a general statute and in

the matter of interpretation of statutes, a special statute

always prevails over a general statute. Such an

interpretation is also in line with Sections 4 and 5 of the

Cr.P.C. which has been discussed. Therefore, on a reading

of the Cr.P.C. and the P.C. Act, it becomes clear that a

private complaint under Section 200 of Cr.P.C. is

maintainable before the special Judge and the same would

be tried having regard to the provisions of the P.C. Act and

Cr.P.C. wherever it is applicable.

56. In Antulay (supra), it has been categorically held that

a private complaint can be entertained by the Special

Judge in respect of the offence committed by the public

servants as enumerated in Section 6(1)(a) and (b) of the

Criminal Law Amendment Act 1952. While considering the

provisions of the P.C.Act, 1947, the Hon’ble Supreme

Court stated that it is a well recognized principle of

-: 84 :-

criminal jurisprudence that any one can set criminal law in

to motion except where the statute creating an offence

indicates to the contrary. Locus standi of the complainant

is a concept foreign to criminal jurisprudence and where

the statute creating an offence provides for the eligibility of

the complainant, by necessary implication the general

principle gets excluded by such statutory provision.

57. Further while considering the provisions of Cr.P.C.

and the Criminal Law Amendment Act, 1952 in

juxtaposition with each other, the Hon’ble Supreme Court

held that the provisions of the Cr.P.C. have to be applied

to the court of special Judge in such manner and to such

extent to retain the separate identity of the court of special

judge and not that he must either fulfill a role of

Magistrate or a Sessions court. Reading Section 8 (1) of

the Criminal Law Amendment Act, 1952 in the context of

Cr.P.C. and Section 5-A of the P.C. Act, 1947, the Hon’ble

Supreme Court held that Section 8(1) of the 1952 Act

conferred power on the Special Judge to take cognizance

-: 85 :-

of the offence. It had nothing to do directly or indirectly

with the mode and method of taking cognizance of

offences by the Court of special Judge. Section 5-A of the

P.C.Act, 1947 was a safeguard against investigation of

offences by police officers below designated or permissible

rank as set out in that section. The Hon’ble Supreme

Court went on to say that in order to give full effect to

Section 8(1) of the Criminal Law Amendment Act, 1952,

the only thing to do was to read special Judge in Sections

238 to 250 of the Cr.P.C., 1973, wherever the expression

“Magistrate” occurred. Thus, the Hon’ble Supreme Court

held that this is legislation by incorporation. Similarly,

where the question of taking cognizance arose, the

expression special Judge had to be read in place of

Magistrate under Section 190 of the Cr.P.C. as while taking

cognizance, a Court of special Judge exercised power

under Section 190 of Cr.P.C. When trying cases, it was

obligatory to follow the procedure for trial of warrant cases

by a Magistrate though as and by way of status it was

equated with a Court of Sessions. It also held that the

-: 86 :-

Court of a Special Judge is a Court of original criminal

jurisdiction and would enjoy all powers which a Court of

original criminal jurisdiction enjoyed under the Cr.P.C.

save and except the ones specifically denied.

58. In Subramanian Swamy V. Manmohan Singh

and another (2012) 3 SCC 64), the Hon’ble Supreme

Court reiterated that there is no provision either in the

P.C.Act or the Cr.P.C. which bars a citizen from filing a

complaint for prosecution of a public servant who is alleged

to have committed an offence, by referring to Antulay,

wherein it has been said that “in other words, the principle

that any one can set or put the criminal law in motion

remains intact unless contra-indicated by a statutory

provision. This general principle of nearly universal

application is founded on a policy that an offence i.e., an

act or offence made punishable by any law for the time

being in force is not merely an offence committed in

relation to the person who suffers harm but is also an

offence against society. Punishment of the offender in the

-: 87 :-

interest of the society being one of the objects behind

penal statutes enacted for larger good of society, right to

initiate proceedings cannot be whittled down,

circumscribed or fettered by putting into a straight-jacket

formula of locus standi unknown to criminal jurisprudence,

save and except specific statutory exception. To hold that

such an exception exists that a private complaint for

offences of corruption committed by a public servant is not

maintainable, the court would require an unambiguous

statutory provision and a tangled web of argument for

drawing a far fetched implication, cannot be a substitute

for an express statutory provision.” Thus, following

Antulay, it was re-emphasised that a citizen had a right to

file a complaint for prosecution of a public servant in

respect of offences allegedly committed under the P.C.Act

59. Also Hon’ble Singhvi J has enunciated in the

aforesaid case, the approach to be made while considering

a statute dealing with corruption. His Lordship has held that

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it cannot be disputed that where corruption begins all

rights end. Corruption devalues human rights, chokes

development and undermines justice, liberty, equality,

fraternity which are the core values in our preambular

vision. Therefore, the duty of the court is 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.

60. In the very same case, Hon’ble Ganguli J., in his

Lordship’s supplementary opinion, has held that the right of a

private citizen to file a complaint against a corrupt public

servant must be equated with his right to access the Court in

order to set the criminal law in motion against a corrupt

public official. The right of access, a constitutional right

should not be burdened with unreasonable fetters. When

a private citizen approaches the court of law against a public

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corrupt servant who is highly placed, what is at stake is

not only a vindication of personal grievance of that citizen,

but also the question of bringing orderliness in society and

maintaining equal balance in the rule of law.

61. Though these observations were made in the context

of granting sanction under Section 19 of the P.C.Act prior

to filing a complaint by a private citizen against a public

servant, they are nevertheless pertinent for the present

case. It was also held that the appellant therein had the

right to file a complaint for prosecution of respondent in

respect of the offence allegedly committed by him under

the provisions of P.C.Act, 1988.

62. Thus, in view of the aforesaid dicta the complaints

filed under the provisions of the P.C. Act read with Cr.P.C.

were maintainable de hors the K.L.Act. But the matter

does not rest here.

63. When two enactments are applicable to a situation

and a conflict arises as to which of the enactments would

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prevail over the other, the same is resolved by taking

recourse to the principle expressed in the maxim,

generalia specialibus non derogant which means a general

provision does not derogate from a special one.

(U.P.S.E.B. V/s. Hari Shankar Jain (1978) 4 SCC 16).

If such a principle is applied, then the provisions of the

P.C. Act, as far as they are inconsistent with the provisions

of the Cr.P.C., would be applicable in the matter of dealing

with an offence under the provisions of the P.C.Act or an

offence under the provisions of the IPC, which can be

tagged to an offence under the provisions of the P.C.Act.

In Dilawar Singh (supra), dealing with Section 19 of PC Act

and Section 190 of Cr.P.C., the Hon’ble Supreme Court

held that PC Act is a special statute and as the preamble

shows, the Act has been enacted to consolidate and amend

the law relating to the prevention of corruption and for

matters connected therewith. The principle expressed in

the maxim generalia specialibus non derogant would apply

and that if a special provision has been made on a certain

matter, that matter is excluded from the general

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provisions. Therefore, Section 19 of the PC Act would

have an overriding effect over the general provisions

contained in Section 190 of I.P.C.

64. But the controversy in these appeals is with regard

to the applicability of the provisions of the Cr.P.C. and the

P.C.Act in the face of the provisions of the K.L.Act. Having

compared the provisions of the Cr.P.C. and P.C.Act, we

now consider the appellant’s contention regarding the

applicability of the Cr.P.C. after the enforcement of K.L.Act

against a public servant.

65. Learned single Judge has held that the principle that

a special provision on a matter excluding the application of

general provision on that very matter cannot be applied

when two provisions deal with different remedies. In other

words, where there are plural remedies, even if the two

remedies happen to be inconsistent, a person can elect to

choose one of the remedies. On that premise, learned

Single Judge held that the invocation of Section 200 of the

Cr.P.C. in the instant case by the respondent is in

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accordance with law. However, learned Senior Counsel

appearing for the appellant has contended that in the face

of the specific provisions of the K.L.Act, the general

provisions of the Cr.P.C., would not be applicable. In other

words, the contention is that in the instant case, the

complaints could not have been filed under Section 200 of

the Cr.P.C. against the appellant herein as the provisions

of the K.L.Act which is a special enactment would prevail

over the provisions of Cr.P.C. In this context, he has

placed reliance upon Sections 4 and 5 of the Cr.P.C. to

contend that those sections exclude the applicability of the

Cr.P.C. as the provisions of the K.L.Act prevail over the

same as the latter is a special enactment. Before

answering this question, it would be necessary to reiterate

that the Cr.P.C. is an enactment dealing with procedure

relating to investigation, enquiry and trial of offences

either under the IPC or other laws, while the P.C.Act is an

adjectival legislation, i.e., it is both a substantive

legislation dealing with offences relating to corruption in

administration and also deals with the procedure with

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regard to the investigation, enquiry or trial of offences. As

already stated the P.C.Act being a special enactment would

prevail over Cr.P.C. In juxtaposition to these laws, the

K.L.Act would have to be considered, bearing in mind the

contention of the parties. Before considering the rival

contentions of the parties, at this stage it is necessary to

delineate the provisions of the K.L.Act.

K.L.ACT:

66. We have already narrated the background to the

enactment of the K.L.Act.

Hereinafter any reference to the expression

‘Lokayukta’ would also include the expression

‘Upalokayukta’ unless otherwise stated.

67. In the statement of objects and reasons of the

K.L.Act, it has been stated that the institution of Lokayukta

was proposed to be set up for the purpose of improving

the standards of public administration, by looking into

complaints against administrative actions, including cases

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of corruption, favouritism and official indiscipline in

administrative machinery. Where, after investigation into

a complaint, the Lokayukta considers the allegation against

a public servant is prima facie true and makes a

declaration to that effect, and the declaration is accepted

by the competent authority, the public servant concerned,

if he is a Chief Minister or any other Minister or Member of

State Legislature shall resign from his office and if he is

any other non-official, he shall be deemed to have vacated

his office, and, if an official, he shall be deemed to have

been kept under suspension, with effect from the date of

acceptance of the declaration. If after investigation, the

Lokayukta is satisfied that the public servant has

committed any criminal offence, he may initiate

prosecution without reference to any other authority. Any

prior sanction required under any law for such prosecution

shall be deemed to have been granted. By the said Act,

the Vigilance Commission in the state was abolished. The

Act has come into effect from 15/01/1986 and there have

been subsequent amendments made to the Act. The

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preamble to the Act states that the Act makes provision for

the appointment and functions of certain authorities for

making enquiries into administrative action relatable to

matters in List II or List III of the Seventh Schedule to the

Constitution, taken by or on behalf of the Government of

Karnataka or certain public authorities in the State

including any omission or commission in connection with or

arising out of such action in certain cases and for matters

connected therewith or ancillary thereto.

68. Section 7(1) deals with matters which may be

investigated by the Lokayukta and an Upa-lokayukta. It

states that subject to the other provisions of the Act, the

Lokayukta may investigate any action which is taken by or

with the general or special approval of (a) (i) the Chief

Minister; (ii) a Minister; (iii) a member of the State

Legislature; (iv) the Chairman and the Vice-Chairman (by

whatever name called) or a member of an authority, board

or a corporation established by or under any law of the

State Legislature including a society, co-operative society

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or a Government company within the meaning of Section

617 of the Companies Act, 1956, nominated by the State

Government in any case where a complaint involving a

grievance or an allegation is made in respect of such an

action, (b) any other public servant holding a post or office

carrying either a fixed pay, salary or remuneration of more

than rupees twenty thousand per month or a pay scale,

the minimum of which is more than rupees twenty

thousand, as may be revised, from time to time, in any

case where a complaint involving a grievance or an

allegation is made in respect of such action or such action

can be or could have been, in the opinion of the

Lokayukta, recorded in writing, the subject of a grievance

or an allegation.

69. Sub-section(2) states that subject to the provisions

of the Act, an Upa-lokayukta may investigate any action

which is taken by or with the general or specific approval

of, any public servant not being the Chief Minister,

Minister, Member of the Legislature, Secretary or other

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public servant referred to in sub-section (1), in any case

where a complaint involving a grievance or an allegation is

made in respect of such action or such action can be or

could have been, in the opinion of the Upa-lokayukta,

recorded in writing, the subject of a grievance or an

allegation. Sub-section (2-A) has been inserted by Act

No.31/1986 by an amendment and is deemed to have

come into force with effect from 16/06/1986. It states that

notwithstanding anything contained in sub-sections(1) and

(2), the Lokayukta or an Upa-lokayukta may investigate

any action taken by or with the general or specific approval

of a public servant, if it is referred to him by the State

Government. Sub-sections (3) and (4) of Section 7 are

not relevant for the purpose this case.

70. Section 8 deals with the matters which cannot be

investigated by the Lokayukta or Upa-lokayukta.

Sub-section (1) states that except as hereinafter provided,

the Lokyukta or an Upa-lokayukta shall not conduct any

investigation under the Act in the case of a complaint

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involving a grievance in respect of any action (a) if such

action relates to any matter specified in the Second

Schedule; or (b) if the complainant has or had, any

remedy by way of appeal, revision, review or other

proceedings before any Tribunal, Court or other authority

and has not availed of the same. Sub-section (2) of

Section 8 states that the Lokayukta or an Upa-lokayukta

shall not investigate (a) any action in respect of which a

formal and public inquiry has been ordered with the prior

concurrence of the Lokayukta or an Upa-lokayukta; (b)any

action in respect of a matter which has been referred for

inquiry, under the Commission of Inquiry Act, 1952 with

the prior concurrence of the Lokayukta or an

Upa-lokayukta; (c) any complaint involving a grievance

made after the expiry of a period of six months from the

date on which the action complained against becomes

known to the complainant; or (d) any complaint involving

an allegation made after the expiry of five years from the

date on which the action complained against is alleged to

have taken place. The proviso says that the Lokayukta or

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Upa-lokayukta may entertain a complaint referred to in

clauses (c) and (d) if the complainant satisfies that he had

sufficient cause for not making the complaint within the

period specified in those clauses. Sub-section (3) states

that in a case of a complaint involving a grievance, nothing

in the Act shall be construed as empowering the Lokayukta

or Upa-lokayukta to question any administrative action

involving the exercise of discretion except where he is

satisfied that the elements involved in the exercise of the

discretion are absent to such an extent that the discretion

can prima facie be regarded as having been improperly

exercised.

71. Section 9 deals with provisions relating to complaints

and investigations. Sub-section (1) states that subject to

the provisions of the Act, any person may make a

complaint under the Act to the Lokayukta or an Upa-

lokayukta. The proviso states that in case of a grievance,

if the person aggrieved is dead or for any reason, unable

to act for himself, the complaint may be made or if it is

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already made, may be prosecuted by his legal

representatives or by any other person who is authorized

by him in writing in this behalf. Sub-section (2) states

that the complaint must be in the form of a statement

supported by an affidavit and in such form and in such

manner as may be prescribed. Sub-section (3) states that

where the Lokayukta or an Upa-lokayukta proposes, after

making such preliminary inquiry as he deemed fit, to

conduct any investigation under this Act, he- (a) shall

forward a copy of the complaint and in the case of an

investigation initiated suo motu by him, the opinion

recorded by him to initiate the investigation under sub-

section (1) or (2), as the case may be, of Section 7, to the

public servant and the Competent Authority concerned;

and (b) shall afford to such public servant an opportunity

to offer his comments on such complaint or opinion

recorded under sub-section (1) and (2) of Section 7 as the

case may be; and (c) may make such order as to the safe

custody of documents relevant to the investigation, as he

may deem fit. Sub-section (4) speaks about the procedure

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for conducting any such investigation. It states that save

as aforesaid, the procedure for conducting any

investigation shall be such, and may be held either in

public or in camera, as the Lokayukta or the Upa-

lokayukta, as the case may be, considers appropriate in

the circumstances of the case.

72. Sub-section (5) states that the Lokayukta or the

Upa-lokayukta may in his discretion, refuse to investigate

or cease to investigate any complaint involving a grievance

or an allegation, if in his opinion- (a) the complaint is

frivolous or vexatious or is not made in good faith; (b)

there are no sufficient grounds for investigating or, for

continuing the investigation; or (c) other remedies are

available to the complainant and in the circumstances of

the case it would be more appropriate for the complainant

to avail such remedies. Sub-section (6) states that where

the Lokayukta or an Upa-lokayukta decides not to

entertain a complaint or to discontinue any investigation in

respect of a complaint he shall record his reasons therefore

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and communicate the same to the complainant and the

public servant concerned. Sub-section (7) states that the

conduct of an investigation under the Act against a public

servant in respect of any action shall not affect such

action, or any power or duty of any other public servant to

take further action with respect to any matter subject to

the investigation.

73. Section 12 states that if, after investigation of any

action involving a grievance has been made, the Lokayukta

or an Upa-lokayukta is satisfied that such action has

resulted in injustice or undue hardship to the complainant

or to any other person, the Lokayukta or an Upa-

lokayukta, as the case may be, shall, by a report in

writing, recommend to the Competent Authority concerned

that such injustice or hardship shall be remedied or

redressed in such manner and within such time as may be

specified in the report. Sub-section (2) states that the

competent authority to whom a report is sent under sub-

section(1) should intimate or cause to be intimated to the

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Lokayukta or the Upa-lokayukta the action taken on the

report within one month of the expiry of the period

specified in the report. If after investigation of any action,

involving an allegation has been made, the Lokayukta or

an Upa-lokayukta is satisfied that such allegation is

substantiated either wholly or partly, he must send a

report in writing communicating his findings and

recommendations along with the relevant documents and

other evidence to the competent authority. The competent

authority has to then examine the report and within three

months of the date of receipt of the report, intimate or

cause to be intimated to the Lokayukta or the Upa-

lokayukta the action taken or proposed to be taken on the

basis of the report. If the Lokayukta or the Upa-lokayukta

is satisfied with the action taken or proposed to be taken

on the recommendations and findings referred to above,

he shall close the case under information to the

complainant, the public servant and the competent

authority concerned, but where he is not satisfied and he

considers that the case so deserves, he may make a

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special report upon the case to the Governor and inform

the competent authority concerned and the complainant.

Under sub-section (6) Section 12, the Lokayukta has to

present annually a consolidated report on the performance

of his functions and that of the Upa-lokayukta, under the

Act, to the Governor. On receipt of the special report or

the annual report under sub-sections (5) and (6)

respectively, the Governor shall cause a copy thereof

together with an explanatory memorandum to be laid

before each House of the State Legislature. Sub-section

(8) of Section 12 states that the Lokayukta or an Upa-

lokayukta may at his discretion make available, from time

to time, the substance of cases closed or otherwise

disposed of by him which may appear to him to be of

general, public, academic or professional interest in such

manner and to such persons as he may deem appropriate.

74. Section 13 states that where after investigation into

a complaint, the Lokayukta or an Upa-lokayukta is

satisfied, that the complaint involving an allegation against

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the public servant is substantiated and that the public

servant should not continue to hold the post held by him,

the Lokayukta or the Upa-lokayukta shall make a

declaration to that effect in his report under sub-section

(3) of Section 12. Where the competent authority is the

Governor, State Government or the Chief Minister, it may

either accept or reject the declaration after giving an

opportunity of being heard. In other cases, the competent

authority shall send a copy of such report to the State

Government which may either accept or reject the

declaration after giving an opportunity of being heard. If it

is not rejected within a period of three months from the

date of receipt of the report or the copy of the report, as

the case may be, it shall be deemed to have been

accepted on the expiry of the said period of three months.

Sub-section (2) states that if the declaration so made is

accepted or is deemed to have been accepted, the same

shall be intimated by registered post by the Governor, the

State Government or the Chief Minister, if any of them is

the competent authority. Then notwithstanding anything

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contained in any law, order, notification, rule or contract of

appointment, the public servant concerned shall, with

effect from the date of intimation of such acceptance of the

declaration:- (i) if the Chief Minister or a Minister, resign

his office of Chief Minister, or Minister, as the case may

be; (ii) if a public servant falling under items (e) and (f), of

clause (12) of Section 2, be deemed to have vacated his

office; and (iii) if a public servant falling under items (d)

and (g) of clause (12) of Section 2 be deemed to have

been placed under suspension by an order of the

Appointing Authority. The proviso states that if the public

servant is a Member of an All India Service as defined in

Section 2 of the All India Services Act, 1951 (Central Act

61 of 1951) the State Government shall take action to

keep him under suspension in accordance with the rules or

regulations applicable to his service.

75. Section 14 states that if after investigation in to any

complaint, the Lokayukta or an Upa-lokayukta, as the case

may be, is satisfied that if the public servant has

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committed any criminal offence and should be prosecuted

in the Court of law for such offence, then, he may pass an

order to that effect and initiate prosecution of the public

servant concerned and if prior sanction of any authority is

required for such prosecution, then notwithstanding

anything contained in any law, such sanction shall be

deemed to have been granted by the appropriate authority

on the date of such order.

76. Sub-section (2) of Section 24 states that the

provisions of the Act are in addition to the provisions of

any other enactment or any rule or law under which any

remedy by way of appeal, revision, review or in any other

manner is available to a person making a complaint under

this Act in respect of any action and nothing in the Act

shall limit or affect the right of such person to avail of such

remedy.

77. In the provisions referred to above, the expression

action, allegation, corruption, grievance, public servant

and maladministration have been repeatedly used. They

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are defined in Section 2 of the Act. Action means, an

administrative action taken by way of decision,

recommendation or finding or in any other manner and

includes willful failure or omission to act and all other

expressions relating to such action to be considered

accordingly. Allegation in relation to a public servant

means any affirmation that such public servant: (a) has

abused his position as such public servant to obtain any

gain or favour to himself or to any other person or to

cause undue harm or hardship to any other person; (b)

was actuated in the discharge of his functions as such

public servant by personal interest or improper or corrupt

motives; (c) is guilty of corruption, favouritism, nepotism

or lack of integrity in his capacity as such public servant;

or (d) has failed to act in accordance with the norms of

integrity and conduct which ought to be followed by public

servants of the class to which he belongs.

78. Clause (c) of sub-section (2) of Section 2 of the

K.L.Act defines the expression ‘corruption’. Corruption

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includes anything made punishable under Chapter IX of

the Indian Penal Code or under the Prevention of

Corruption Act, 1947, which has since been repealed by

the Prevention of Corruption Act, 1988. The Prevention of

Corruption Act, 1947 (“P.C.Act 1947”, for short) was in

force when the K.L.Act, 1984 was enforced but by the

P.C.Act, 1988, the P.C.Act 1947 was repealed. Thus,

where the P.C.Act, 1947 has been repealed by the P.C.Act

1988, it is a case of re-enactment. In such a situation,

unless any contrary intention appears, any reference to the

repealed Act is to be construed as a reference to the

provisions re-enacted, [vide Section 91 – “Statutory

Interpretation” (4th Edition) by Francis Bennion]. Thus, the

reference to the P.C.Act, 1947 must now imply a reference

to the P.C.Act, 1988 which is an instance of an

incorporation by reference made under the provisions of

the K.L.Act. In the case of Legislation by reference,

Section 8(1) of the Karnataka General Clauses Act, would

be applicable and the same reads as follows:-

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“8(1) Where this Act, or any Central Act or

Regulation made after the commencement of

this Act, repeals and re-enacts, with or without

modification, any provision of a former

enactment, then references in any other

enactment or in any instrument to the provision

so repealed shall, unless a different intention

appears, be construed as reference to the

provision so re-enacted”

79. In other words, where a statute is incorporated, by

reference, into a second statute, the repeal of the first

statute by a third does not affect the second. In Agarwal

Trading Corporation v. Assistant Collector, Customs

[1972 (2) SCC 553], the Hon’ble Supreme Court has

observed that “it is a well accepted legislation practice to

incorporate by reference, if the legislature so chooses, the

provisions of some other Act insofar as they are relevant

for the purposes of and in furtherance of the scheme and

objects of that Act”.

80. Further ‘Maladministration’ means action taken or

purporting to be taken in the administrative functions in

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any case where:- (a) such action or the administrative

procedure or practice governing such action is

unreasonable, unjust, oppressive or improperly

discriminatory; or (b) there has been willful negligence or

undue delay in taking such action or the administrative

procedure or practice governing such action involves

undue delay; ‘Grievance’ means a claim by a person that

he sustained injustice or undue hardship in consequence of

maladministration. “Public servant” is defined in Section 2

of sub-section (12).

81. At this stage, it is necessary to make a comparative

narration of the P.C.Act and K.L.Act as it is under the

former Act that the complaints have been filed against the

appellant herein and it is the contention of the appellant

that it is only the latter Act that would be applicable.

COMPARISON OF P.C.ACT AND K.L.ACT:

82. Initially, the provisions of the IPC were considered

to be adequate to meet the exigencies of the time with

regard to bribery and corruption among public servants.

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But as the spectrum of administration widened, it was felt

imperative to introduce a special legislation with a view to

eradicate corruption and thus the prevention of corruption

Act, 1947 was enacted and subsequently amended on the

recommendations of the Santhanam Committee. With the

passage of time it was found that corruption in

administration had deepened and a need was felt to widen

the scope of the definition of public servant so as to make

the anti-corruption law more effective. Thus, the P.C. Act,

1988 was enacted to consolidate and amend the law

relating to prevention of corruption and for matters

connected therewith. On the other hand, in order to

improve the standard of public administration by looking

into the complaints against administrative actions including

cases of corruption and official indiscipline in

administrative machinery, the K.L.Act was enacted by the

State Government to investigate into administrative

actions taken by or on behalf of the State Government or

certain public authorities or by a public servant. Though

there may be an overlapping in the objects of the two

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Acts, yet, we find that the scheme of the two Acts are

quite distinct. Under the P.C. Act, a special Judge is

constituted to try the offences punishable under the Act, in

accordance with the provisions of the Cr.P.C. or in

accordance with the provisions of the P.C. Act, as the case

may be and as specifically stated in the latter Act. The

punishment for the offences is imprisonment, which is not

less than six months, but it may extend upto seven years

and also imposition of fine. The expression gratification is

not restricted to pecuniary gratification or to gratification

estimable in money.

83. Section 7 deals with an offence where a public

servant takes a gratification other than legal remuneration

in respect of an official act as a motive or reward for doing

or forbearing to do any official act or for showing or

forbearing to show, in the exercise of his official functions,

favour or disfavour to any person or for rendering or

attempting to render any service or disservice to any

person, with the Government or any other authority or

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with any public servant in exercise of his official functions,

which is punishable with imprisonment, which shall not be

less than six months but which may extend to five years

and shall also be liable to fine.

84. Section 8 of P.C. Act deals with accepting

gratification, in order to influence a public servant by

corrupt or illegal means. It applies to any person who with

a corrupt or illegal means influences a public servant, to do

or to forbear to do any official act, or in the exercise of the

official functions of such public servant to show favour or

disfavour to any person, or to render or attempt to render

any service or disservice to any person with the Central

Government or any State Government or Parliament or the

Legislature of the State or with any local authority,

corporation or Government company or with any public

servant. The punishment in such a case is imprisonment

for a term which shall not be less than six months but

which may extend upto five years and also liable to fine.

Section 9 deals with a person taking gratification, for

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exercise of personal influence on a public servant. Section

10 deals with punishment for abetment by a public servant

of offences defined in Section 7. While Section 7 deals

with a person who is a public servant or expecting to be a

public servant, sections 8 and 9 pertain to any other

person. Under Section 10, the punishment to a public

servant in respect of whom either of the offences under

Section 8 or 9 is committed is similar. Section 11 deals

with a public servant obtaining a valuable thing, without

consideration, from any person concerned in any

proceeding or business transacted by such public servant

and a similar punishment is provided. Section 12 pertains

to abetment of offences of a person vis-à-vis any offence

punishable under Section 7 or 11 of the Act and a similar

punishment is provided. Section 13 defines a criminal

misconduct by a public servant. The punishment to any

public servant who commits criminal misconduct shall be

punishable with imprisonment for a term not less than one

year but which may extend to seven years and shall also

be liable to fine. Any attempt to commit an offence under

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clause (c) or clause (d) of sub-section (1) of section 13

shall be punishable with imprisonment for a term which

may extend to three years and with fine. The manner in

which the fine has to be imposed under sub-section (2) of

Section 13 or Section 14 is provided in Section 16 of the

Act.

85. As far as the K.L.Act is concerned, it does not deal

with any penal offence as such. In fact, it does not contain

the definition of any penal offence. Also no punishment is

prescribed under the K.L.Act for the simple reason that the

K.L.Act does not deal with trial of any offence. The Act

essentially deals with investigation into complaints made

under the Act to the Lokayukta or Upalokayukta involving

a grievance or an allegation in respect of an action taken

by a public servant during the course of his official duty.

Thus, while the P.C.Act contains provisions for the trial as

well as punishment of offences and has also prescribed a

specific procedure in certain circumstances while adopting

the procedure of the Cr.P.C. in other circumstances, the

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K.L.Act does not deal with any penal offence. In other

words, the P.C. Act is an adjectival statute dealing with

both substantive and procedural law, which is penal in

nature whereas, the K.L.Act cannot be considered as a

penal statue. This becomes more clear while examining

the functions of the Lokayukta as well as Upalokayukta.

86. While under the P.C. Act, Section 17 deals with the

investigation into cases by the Police Officers above a

particular rank under the Act and the officers who are

empowered to do so, the nature of investigation by the

Lokayukta or Upalokayukta under the K.L.Act is quite

distinct. To reiterate, under Section 7 of the K.L.Act, the

Lokayukta or Uplokayukta may investigate any action in

any case where a complaint involving a grievance or an

allegation is made in respect of such action or with the

general or specific approval of a public servant that is

referred to him by the State Government. Section 8 of the

K.L.Act deals with matters which cannot be subject to

investigation. Section 9 deals with the manner in which a

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complaint has to be made and the procedure to be adopted

on receipt of the complaint.

87. On a conjoint reading of sub-clause (b) of sub-

section (1) of Section 8 with sub-clauses (b) and (c) of

sub-section (5) of Section 9 read with sub-section (7) of

Section 9, what emerges is that if the complainant has or

had any other remedy by way of appeal, revision, review

or other proceeding before any other Tribunal, Court or

other authority and has not availed of the same, it cannot

be subjected to investigation. In fact under sub-clause (c)

of sub-section (5) of Section 9, the Lokayukta can exercise

his discretion and refuse to investigate or cease to

investigate any complaint involving a grievance or an

allegation, if in his opinion other remedies are available to

the complainant and in the circumstances of the case it

would be more appropriate for the complainant to avail of

such remedies. But irrespective of the discretion to be

exercised by the Lokayukta to refuse to investigate or to

cease to investigate or to conduct an investigation under

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the Act, the provisions would not come in the way of any

other public servant to take further action with respect to

any matter subject to investigation. On a conjoint reading

of sub-clause (b) of sub-section (1) of Section 8 with sub-

clause (c) of sub-section (5) of Section 9 and sub-section

(7) of Section 9 of the K.L.Act and in juxtaposition with the

relevant provisions of the IPC or the P.C. Act, it would

imply that as against a public servant even if an

investigation is conducted by the Lokayukta in respect of

an action, that would not be an impediment to any other

public servant to take further action against that very

public servant under the IPC or P.C.Act or under any other

law. If sub-clause (b) of sub-section(1) of Section 8 is

read with sub-clause(c) of sub-section(5) of Section 9,

then it emerges that if the complainant has or had any

remedy by way of an appeal, revision, review or other

proceeding before any court or other authority and has not

availed of the same, then in such a case, the Lokayukta

can exercise his discretion to refuse to investigate if in his

opinion any other remedy are available to the complainant

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and in the circumstances of the case, it would be more

appropriate for the complainant to avail such other

remedy.

88. But if the complainant has availed of any other

remedy before a Court or other authority, then can the

Lokayukta also investigate into the complaint involving a

grievance or action. Conversely, if a complaint is pending

before the Lokayukta, can a complaint on the same subject

matter be filed before any court or other authority. In

such a situation can two parallel remedies be availed by

the complainant, one before the Court or other authority

and the other before the Lokayukta. According to the

appellant, if a complaint is pending investigation before the

Lokayukta, then a complaint before any other Court or

authority is not maintainable on the same subject matter

of the complaint. Then in such a case should the

Lokayukta exercise his discretion to refuse to investigate

or to cease to investigate any complaint involving the

same grievance or an allegation which is a subject matter

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of a proceeding before a court or the other authority, in

order to avoid contradictory orders being made by the

Court or the other authority as well as the Lokayukta. In

such a case, if discretion is exercised by the Lokayukta to

cease to investigate any complaint involving a grievance or

an allegation it would result in the court or other authority

being the only authority to deal with the complaint filed

before it in accordance with the relevant statute resulting

in the consequences prescribed thereunder. But, on the

other hand, sub-section (7) of Section 9 of the K.L.Act

states that conduct of an investigation in respect of any

action would not come in the way of any other public

servant taking further action with respect to any matter

subject to the investigation. This sub-section in fact,

enables a public servant to initiate action against any other

public servant even though the investigation is being

conducted by the Lokayukta. Under sub-section (7) of

Section 9, action may be initiated against a public servant

by any other public servant under the relevant provisions

of the IPC or the P.C.Act apart from initiating disciplinary

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proceedings. Then the conduct of an investigation by the

Lokayukta would not bar initiation of a proceeding under

the IPC or the P.C.Act.

89. But in the instant case, the argument of the appellant

is that since there were already complaints pending before

the Lokayukta on the very same subject matter, the

respondent-complainant herein could not have filed a

private complaint before the Court under Section 200 of

the Cr.P.C. invoking the provisions of the IPC as well as

the P.C.Act. In other words, the argument is that, when

once the Lokayukta or Upalokayukta, as the case may be,

is seized of any complaint, then no other court or authority

can exercise its jurisdiction on the very same subject

matter of complaint, whether filed by the same

complainant or any other person. We do not think that

such an interpretation could be given to the provisions of

the K.L.Act as those very provisions do not exclude the

operation of other laws in the matter of dealing with

complaints against public servants due to the following

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reasons:- Firstly, under sub-clause (b) of sub-section(1)

of Section 8, the Lokayukta shall not conduct any

investigation if the complainant has any other remedy and

has not availed of the same. Secondly, the Lokayukta, in

his discretion can refuse to investigate or cease to

investigate any complaint if there are other remedies

available to the complainant and in the circumstances of

the case, it would be more appropriate for the complainant

to avail such remedies. Thirdly, even if an investigation is

conducted by the Lokayukta, that would not come in the

way of any other public servant initiating action against a

public servant in respect of whom an investigation is being

conducted by the Lokayukta. Fourthly, while a public

servant is specifically empowered to initiate action against

another public servant in respect of whom an investigation

is being conducted, there is no bar, either express or by

necessary implication, on any other person to take action

under any other law even if an investigation is being

conducted against any public servant under the provisions

of the K.L.Act. Fifthly, sub-section(2) of Section 24 has

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stated that the provisions of K.L. Act are in addition to the

provisions of any other enactment or law under which any

remedy in any other manner is available to a person

making a complaint under this Act in respect of any action

and nothing in the K.L. Act would limit or affect the right of

such person to avail of such remedy. Thus, the provisions

of the Act recognise other remedies being available to a

complainant which could be availed of by him. Therefore,

the contention of the appellant that when once the

Lokayukta is seized of a complaint there can be no

initiation of action under any other law or enactment either

by the same complainant or by any other complainant

cannot be accepted. The discretion given to the Lokayukta

to refuse to investigate a complaint where other remedies

are available to the complainant and also the remedy

available to any other public servant to initiate a

proceeding against a public servant in respect of whom an

investigation is being conducted would make it amply clear

that the conduct of investigation under the K.L.Act is

independent of any other proceeding before any other

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court or other authority on the same grievance or

allegation initiated by the same complainant or by any

other complainant.

90. In fact, learned single Judge has adverted to the

doctrine of election to hold that a complainant

can either resort to filing a complaint under the provisions

of the K.L.Act or file a complaint before the

Court invoking the provisions of the IPC as well

as the P.C.Act and has observed that a complainant can

elect either of the two remedies. If these observations

are considered in the light of sub-clause(b) of sub-section

(1) of Section 8 and sub-clause (c) of sub-section (5) of

Section 9, it becomes clear that the Lokayukta has

discretion to refuse to investigate or cease to investigate

any complaint involving any grievance or an

allegation where there are other remedies available to the

complaint and where he has not availed of the same. So

also if the Lokayukta thinks that proceeding under any

other law other than the K.L.Act is more appropriate and is

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a suitable remedy, then he could refuse or cease to

investigate. Thus, even if a complainant chooses to file a

complaint under the provisions of K.L.Act for investigation

by the Lokayukta, instead of choosing an alternative forum

or an alternative remedy, then in such a case Lokayukta

can exercise his discretion to refuse to investigate the

complaint. Therefore, the provisions of the K.L.Act clearly

contemplate availing a remedy under any other law or

before any other forum by a complainant. Thus, the

K.L.Act recognizes availability of multiple remedies to a

complainant and the Lokayukta, in his discretion can

refuse to investigate a complaint if an alternative remedy

is proper for the complainant to avail before another

forum. Therefore, it cannot be argued that the provisions

of the K.L.Act substitute the provisions of the IPC or the

P.L.Act with regard to any complaint involving a grievance

or an allegation against a public servant.

91. Thus, if a complaint involves a grievance or an

allegation which falls within the scope of the provisions of

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the IPC of P.C.Act or both, then those Acts could be

invoked for seeking a remedy by a complainant. It is not

incumbent upon the complainant to proceed only under the

K.L.Act by filing a complaint against a public servant and

seek investigation of the same. The provisions of the IPC,

P.C.Act as well as the provisions of the K.L.Act operate in

their respective fields and one enactment cannot substitute

or supplant another enactment. This position becomes

clearer on a reading of sub-section(2) of Section 24 of the

K.L.Act. Of course, before availing a remedy under the

other enactment, the mandatory requirement under those

enactments would have to be complied with by the

complainant. For instance, under Section 19 of the P.C.Act

no court can take cognizance of offences punishable under

Sections 7, 10, 11, 13 and 15 alleged to have been

committed by a public servant without the previous

sanction of the authority mentioned under the said section.

Therefore, if a complaint is filed under Section 200 of the

Cr.P.C. before the Special Judge constituted under the

P.C.Act, then unless there is a previous sanction for

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prosecution, the Court cannot take cognizance of an

offence punishable under Sections 7, 10, 11, 13 and 15 of

the P.C. Act. In the result, in the instant case, when after

obtaining a sanction from the Governor of the State a

complaint is filed by the respondent before the special

Judge constituted under the provisions of the P.C.Act.

invoking certain provisions of the P.C.Act as also the IPC,

the said proceeding cannot be quashed because there is a

complaint filed by some other complainant before the

Lokayukta in respect of same allegations or actions.

92. Continuing further, one word about the grant of

sanction for prosecution under the provisions of the

P.C.Act. The grant of sanction for prosecution in respect of

certain offences punishable under P.C.Act is a mandatory

condition precedent before a court can take cognizance of

an offence. But under Section 14 of the K.L.Act if after

investigation into a complaint, the Lokayukta is satisfied

that the public servant has committed any criminal offence

and should be prosecuted before a court of law for such an

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offence, then he may pass an order to that effect and

initiate action against a public servant concerned. If prior

sanction of any authority is required for prosecution, then

notwithstanding anything contained in any law such

sanction shall be deemed to have been granted by the

appropriate authority on the date of such order.

Therefore, if after an investigation, the Lokayukta passes

an order to initiate prosecution of the public servant

concerned, then such an order would be a deemed

sanction. In such a situation it is not necessary to once

again obtain a sanction of the competent authority under

the provisions of the P.C.Act if prosecution has to be

launched under the provisions of the P.C.Act. Thus, the

application of mind by the Lokayukta to initiate prosecution

after conducting an investigation and an order being

passed in that regard itself is a sanction by the competent

authority under the provisions of the P.C.Act. This makes

it clear that the nature of investigation conducted by

Lokayukta or Upalokayukta under the K.L.Act is quite

distinct from a criminal proceeding initiated before the

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special Judge under the P.L.Act which is essentially a

prosecution and not an investigation.

93. In fact, Section 11 of the K.L.Act states that for the

purpose of investigation under the Act, the Lokayukta may

require any public servant or any other person who in his

opinion is able to furnish information or produce

documents relevant to the investigation to furnish such

information or produce such document. Sub-section(2)

states that for the purpose of any such investigation, the

Lokayukta shall have the power of the Civil Court while

trying a suit under the Code of Civil Procedure 1908 in

respect of certain matters. The proceeding before the

Lokayukta during the investigation is deemed to be a

judicial proceeding within the meaning of Section 193 of

the IPC. Thus the procedure contemplated with regard to

an investigation by the Lokayukta is distinct from the

procedure contemplated under the provisions of the

P.C.Act before a special Judge.

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94. That apart under the provisions of the P.C.Act after

the special Judge takes cognizance of a complaint filed

before him and issues a process to the accused and

conducts a trial, it would result either in conviction of the

accused or an acquittal. A conviction would result in a

sentence of punishment as contemplated under the

provisions of the P.C.Act. However, under the provisions

of the K.L.Act, Sections 12, 13 and 14 provide for

different consequence as a result of an investigation

conducted by a Lokayukta. Under Section 12 of the

K.L.Act, if, after conducting an investigation, the

Lokayukta is satisfied that such an action has resulted in

injustice or undue hardship to the complainant, then a

report is sent to the competent authority in writing

recommending that such injustice or hardship be remedied

or redressed in such a manner and within such time as

may be specified in the report. But if after investigation of

an action involving an allegation has been made and the

Lokayukta is satisfied that such allegation is substantiated

either in whole or partly, then the report is sent in writing

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communicating the findings and recommendations along

with the relevant materials, documents and other evidence

to the competent authority. The competent authority to

whom the report is sent must intimate or caused to be

intimated to the Lokayukta action taken on the report or

proposed to be taken on the basis of the report. If the

Lokayukta is satisfied with the action taken on its

recommendations or findings, then he shall close the case

under information to the complainant, the public servant

and the competent authority concerned. But if he is not

satisfied and he considered that the case so deserves, he

shall make a special report of the case to the Governor and

inform the competent authority concerned as well as the

complainant. On receipt of the special report, the

Governor shall cause a copy together with an explanatory

memorandum to be laid before each House of the State

Legislature.

95. Under Section 13, it is stated that where after an

investigation into a complaint the Lokayukta is satisfied

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that the complaint involving an allegation against the

public servant is substantiated and that the public servant

concerned should not continue to hold the post held by

him, the Lokayukta shall make a declaration to that effect

in his report under sub-section(3) of Section 12. The

competent authority either may accept or reject the

declaration after giving an opportunity of being heard

where the competent authority is the State Government or

the Chief Minister. In other cases, the competent

authority shall send a copy to the State Government who

may either accept or reject the declaration after giving an

opportunity of being heard. If the rejection is not made

within three months from the date of receipt of the report,

it shall be deemed to have been accepted on the expiry of

the said period of three months. If the declaration is

accepted or deemed to have been accepted by the

competent authority, then from the date of intimation of

the same to the public servant concerned, he shall in the

case of a Chief Minister or a Minister, resign his office; in

the case of a public servant under clause ‘e’ and

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‘f’ of clause 12 of Section 2 be deemed to have vacated his

office and in the case of a public servant falling under

clause ‘d’ and ‘g’ of clause (12) of Section 2 deemed to

have been placed under suspension by an order of the

Appointing Authority. As already stated, after an

investigation into any complaint, if the Lokayukta is

satisfied that the public servant has committed any

criminal offence, then he may pass an order to initiate a

prosecution of the public servant and if prior sanction of

any authority is required for such prosecution, then such

sanction shall be deemed to have been granted by the

appropriate authority on the date of such order passed by

the Lokayukta.

96. Therefore, comparison of the of the provisions of the

P.C.Act and the K.L.Act would reveal that the object of the

two Acts are distinct in nature and scope of the actions

initiated thereunder are also different and the

consequences of the actions are also not the same. As

already stated above, these two Acts operate with distinct

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objects and result in totally different consequences upon a

complaint being filed before the special Judge or the

Lokayukta.

97. Having made a comparison of the aforesaid

enactments it is clear that the K.L.Act cannot be a special

enactment vis-à-vis the P.C.Act, 1947 which is succeeded

by the P.C.Act, 1988. The K.L.Act in our view, is a general

act which deals with investigation into complaints involving

grievance or “allegation in respect of an action”. It is

reiterated that “action” as defined in sub-section (1) of

Section (2) reads as under:-

“action”, means administrative action taken

by way of decision, recommendation or finding or

in any other manner and includes willful failure or

omission to act and all other expressions relating

to such action shall be construed accordingly.”

98. A reading of this definition in juxtaposition to an

offence under the P.C.Act, would make it apparent that

P.C.Act 1988 deals only with corruption as defined under

the provisions of Sections 7 - 13 of that Act, whereas

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K.L.Act, deals with various kinds of allegations, one of

which is an allegation of corruption. To elaborate, under

the provisions of the P.C.Act, the offences relate to

acceptance or agreeing to accept an illegal gratification for

doing or forbearing to do any official act or to show favour

or to disfavour any party or to render or attempt to render

any service to any person by accepting illegal gratification

or inducing, by corrupt or illegal means, any act, or in the

exercise of the official functions of such public servant, to

do or to forbear to do any official act, or in the exercise of

the official functions of such public servant to show favour

or disfavour to any person, or to render or attempt to

render any service or disservice to any person with the

Central Government or any State Government or

Parliament or the Legislature of any State or with any local

authority, or to do the aforesaid act. It deals with taking

gratification, for exercise of personal influence with public

servant and punishment for abetment of the aforesaid

offences, public servant obtaining valuable thing, without

consideration from person concerned in proceeding or

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business transacted by such public servant and criminal

misconduct by a public servant.

99. On the other hand, the expression allegation under the

K.L.Act in relation to a public servant means any affirmation

that such public servant:- (a) has abused his position as such

public servant to obtain any gain or favour to himself or to

any other person or to cause undue harm or hardship to any

other person; (b) was actuated in the discharge of his

functions as such public servant by personal interest or

improper or corrupt motives; (c) is guilty of corruption,

favouritism, nepotism, or lack of integrity in his capacity as

such public servant; or (d) has failed to act in accordance

with the norms of integrity and conduct which ought to be

followed by public servants of the class to which he

belongs.

100. Thus, on a conjoint consideration of the provisions

of the two acts namely, P.C.Act and the K.L.Act, in the

context of Section 7 of K.L.Act, it becomes crystal clear

that the provisions of the K.L.Act are general in nature and

-: 138 :-

that K.L.Act is a general enactment which is passed

subsequently by the State legislature and therefore, the

provisions of the K.L.Act cannot obliterate or exclude the

operation of the P.C.Act, which is a special enactment.

Thus, the general enactment does not derogate from the

special enactment.

101. It is in this context, that sub-section (2) of Section

24 of the K.L.Act assumes significance. Sub-section (2) of

Section 24 of the K.L.Act states that the provisions of the

Act shall be in addition to the provisions of any other

enactment or any rule or law under which any remedy by

way of appeal, revision, review or in any other manner is

available to a person making a complaint under this Act in

respect of any action and nothing in this Act shall limit or

affect the right of such person to avail of such remedy. In

fact Section 28 of the P.C.Act also states that it is in

addition to and not in derogation of any other law for the

time being in force and nothing contained in the Act shall

exempt any public servant from any proceeding which

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might, apart from the Act, shall be instituted against him.

Thus both the Acts enable other enactments or law to

operate simultaneously. The P.C. Act which is a Central

Act does not supplant the K.L.Act which a State law and

vice versa. In fact, a State law cannot obliterate or

substitute a Central law even on the same subject unless it

has received the assent of the President as required under

Article 254 of the Constitution as far as List III is

concerned. As far as a law falling in List I and List II is

concerned. Article 246 enunciates the matter in which

conflict in such laws could be resolved.

102. The precedents cited at the Bar under the

provisions of K.L.Act could be referred to as under:

(a) In Institution of Andhra Pradesh

Lokayukta/Upa-Lokayukta, A.P. & others V.

T.Ramasubba Reddy & another (1997 (9) SC C 42),

the Hon’ble Supreme Court opined that the legislative

intent behind the enactment is to see that the public

servants covered by the sweep of the Act should be

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answerable for their actions, so that the authorities under

the Lokayukta worked as real Ombudsman for ensuring

that the people’s faith in working as public servant is not

shaken. The authorities under the Lokayukta are meant to

cater to the needs of the people at large with a view to see

that public confidence in the working of the public bodies

remains intact.

(b) In C.Rangaswamaiah & others V. Karnataka

Lokayukta & others (AIR 1998 SC 2496), the

petitioners had contended that the police officers on

deputation in the Lokayukta could not have been entrusted

with the investigation under Section 17 of the P.C.Act and

that Section 15 of the K.L.Act had to be harmonized.

While answering the said question, the Hon’ble Supreme

Court noted that under First Schedule of the Karnataka

Lokayukta (Cadre, Recruitment and Conditions of Service

of the Officers and Employees) Rules, 1988 the staff of the

Lokayukta is divided into three wings viz., (a)

Administration and Enquiry Wing (b) Police Wing and (c)

-: 141 :-

General Wing. The number of posts in each wing is also

specified. The Second Schedule to the Rules provides for

the method of recruitment, according to which so far as

staff in the Police Wing of the Lokayukta is concerned, it

has to be appointed by deputation from the Karnataka

State Police Service. The Police Officers of the State who

are on deputation to the Police Wing of the Lokayukta

continue to remain as public servants in the service of the

State Government as long as they are not absorbed in the

Lokayukta. It was also held that the State Government

could entrust such extra work to the officers on deputation

to the Lokayukta by informing the Lokayukta of its desire

to do so, such as carrying out investigation under Section

17 of the P.C. Act.

(c) In M.Maheshan V/s. State of Karnataka

(1999 (4) KLJ 500), it has been held that the Bureau of

Investigation functioning under Karnataka Lokayukta is not

competent to investigate into a complaint of an offence

under the P.C.Act. Such investigation ought to be done in

terms of Section 17 of the P.C. Act, which prescribes that

-: 142 :-

no officer other than those mentioned in Clauses a-c

thereof shall investigate any offence under that Act. Also

the Police Officers deputed to Lokayukta cannot claim

general police powers to discharge police functions like

registering cognizable offences or taking up investigation

into them independently. The Police Officers deputed to

Karnataka Lokayukta have to exercise powers only for the

purpose of assisting the Lokayukta or the Upalokayukta in

the discharge of their statutory functions.

(d) In the State of Karnataka, by Chief Secretary,

Bangalore & others V. Basavaraj Guddappa (ILR

2003 Kar. 3589), following the dictum in Rangaswamiah,

a Division Bench of this court held that the investigation

carried out by the police wing in that case was in

conformity with the pronouncement of the Hon’ble

Supreme Court in that case.

(e) In Pandurang @ Sathyabodh V/s. State by

Police Inspector, Police Wing, Karnataka Lokayukta

Police Station, Dharwad (2008(5) KLJ 34), this Court

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following Basavaraj Guddappa Maliger (supra) held that

the Police Wing of the Lokayukta acts independently and

not under the directions from the Lokayukta while

exercising power under Section 17 of the P.C.Act.

103. Finally, the provisions and the scheme of the K.L.Act

could be considered in juxtaposition to the provisions of

the Cr.P.C. as the main contention of the appellant’s

counsel is that the former Act has impliedly repealed the

latter Act as far as Karnataka is concerned.

Comparison of Cr.P.C. and K.L. Act:

104. While the object and scheme of the Cr.P.C. is in the

realm of procedure with regard to investigation, enquiry,

trial and otherwise dealing with offences under IPC or

other laws, the object and scheme of the K.L.Act is only

with regard to investigation into any action taken by a

public servant on a complaint involving a grievance or

allegation under the provisions of the K.L.Act. The

investigation under K.L.Act is not necessarily in respect of

-: 144 :-

any offence under the provisions of the IPC or any other

penal law. The complaint involving a grievance or an

allegation is essentially against an allegation as defined in

sub-section(2) of Section 2 of the K.L.Act. The

consequence of an investigation made by the Lokayukta is

as envisaged under Sections 12 to 14 of the K.L.Act. An

investigation conducted by the Lokayukta does not by itself

result in any punishment of the public servant.

105. In fact, under Section 14 of the K.L.Act, if after

investigation into any complaint, the Lokayukta is satisfied

that the public servant has committed any offence and is

to be prosecuted in a Court of law for any offence, he may

pass an order to that effect and initiate prosecution of the

public servant concerned, the prosecution thus, would be

under the provisions of the Cr.P.C. or any other special law

as the case may be. Thus under the provisions of the

K.L.Act there is no bar for the invocation of any other

enactment in respect of any offence. Moreover, under

Section 8 deals with matters which cannot be investigated

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by the Lokayukta and sub-clause (c) of sub-section (5) of

Section 9 states that the Lokayukta in its discretion can

refuse to investigate or cease to investigate any complaint

involving a grievance or an allegation, if in his opinion

other remedies are available to the complainant and in the

circumstances of the case, it would be more proper to the

complainant to avail of such remedies. Also sub-section(2)

of Section 24 categorically states that the provisions of the

K.L.Act are in addition to the provisions of any other

enactment or any other rule or law under which any

remedy by way of appeal, revision review or in any other

manner is available to a person making a complaint under

this Act in respect of any action and nothing in this Act

shall limit or affect the right of such person to avail of such

remedy. These provisions make it clear that investigation

under any other enactment including the Cr.P.C. or P.C.Act

is not excluded.

106. Thus, what emerges from the aforesaid analysis is

that Cr.P.C. is essentially a procedural law which deals

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with investigation, enquiry and trial of penal offences. It is

a general code providing for a procedure to deal with

offences under the IPC as well as other penal laws. The

P.C.Act is a special enactment consolidating and amending

the law relating to prevention as well as punishment for

offences in the realm of corruption. This Act not only

defines the offences punishable under the Act but the trial

and punishment of such offences. The P.C.Act is not only

a substantive piece of legislation but being a special

statute, a distinct procedure from the general procedure as

prescribed under the Cr.P.C. for the trial of offences is

prescribed under the P.C.Act.

107. As stated earlier, while there is ample reference to

the applicability of the provisions of the Cr.P.C. for the trial

of offences under the provisions of the P.C.Act,

nevertheless, in the latter Act, special provisions have

been made with regard to certain procedures and stages of

the trial of offences, which is quite distinct from the

provisions of the Cr.P.C. Certain provisions of the P.C.Act

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have a non-obstante clause, so as to make the said

provisions over-ride the provisions of the Cr.P.C, while

certain other provisions of the Cr.P.C. are expressly

applicable to the P.C.Act. There are also instances of

certain provisions of the Cr.P.C. applied to the P.C.Act with

modifications. Therefore, when the provisions of the

Cr.P.C. when read in juxtaposition of the provisions with

the P.C.Act, what emerges is that the latter Act being a

special statute would over-ride the provisions of the

Cr.P.C. to the extent mentioned under the various

provisions of the P.C.Act.

108. When we consider the provisions of the P.C.Act with

the provisions of the K.L.Act, what emerges is that the

latter Act is a general enactment dealing inter alia with

complaints involving grievances or allegations made

against an action taken by a public servant. As stated

supra, under the K.L.Act, the expression ‘allegation’ does

not merely refer to an allegation of corruption as

punishable under the provisions of the IPC or the P.C.Act.

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The allegation may be in relation to so many other forms

of abuse of public office, such as lack of integrity,

favouritism etc. Therefore, the Lokayukta has the

jurisdiction to enquire into complaints not only involving

allegations of corruption as defined under the provisions of

the P.C.Act but also allegations involving other types of

misconduct. It is reiterated that the object and scope of

the K.L.Act is to uphold purity in administration by making

enquiry into complaints involving a grievance or an

allegation in respect of an administrative action against

public servants. The Lokayukta has no jurisdiction to

either try any of the allegations which amount to a criminal

offence nor punish a public servant for the same. But the

main argument of the appellant is that as far as

investigation into allegations against public servants are

concerned, it can only be under the provisions of the

K.L.Act and the provisions of the Cr.P.C. would not apply.

In other words, the Cr.P.C. is impliedly repealed with the

enforcement of the K.L.Act. A fallacy in such an argument

is that the provisions of the P.C.Act or any other penal law

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are totally ignored. Infact, the entire structure of the

appellant’s argument focuses only on the provisions of the

Cr.P.C. more particularly, Sections 4 and 5 and the

provisions of the K.L.Act, more particularly, Sections 7 to

9. But in the instant case, action has been initiated by the

respondent by filing a complaint under the provisions of

the Cr.P.C., which is a procedural law pertaining to

offences allegedly committed by the appellant under the

provisions of IPC as well as P.C.Act as applicable to the

latter Act. Nevertheless, the principle of implied repeal

has been invoked by the appellant’s counsel to contend

that with the enforcement of the K.L.Act, which is a State

enactment, the Cr.P.C. which is a Central enactment is

impliedly repealed and hence, the respondent could not

have filed any complaint before the Special Judge under

Section 200 of Cr.P.C. for an offence punishable under the

provisions of the IPC as well as the P.C.Act. In view of the

decision of the Hon’ble Supreme Court in Antulay, there

can be no further doubt about the applicability of Section

200 and its allied provisions for filing a complaint against a

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public servant for an offence punishable under the

provisions of the P.C.Act. Though that is indeed the factual

situation in these cases, the matter does not rest here.

The argument advanced is that the K.L.Act impliedly

repeals the provisions of Cr.P.C., which would mean that in

so far as the enquiry against the public servant is

concerned, it could only be under the provisions of the

K.L.Act and that the Cr.P.C. would not be applicable. The

analysis of the various enactments made supra and their

interplay would not countenance such an argument.

109. Another fallacy in this argument is that in these

cases the respondent has not filed merely complaints

before the Special Judge so as to seek investigation into

those complaints. The complaints are filed under Section

200 of Cr.P.C. for launching a prosecution against the

appellant and others for various offences alleged to have

been committed by them under the provisions of IPC as

well as the P.C.Act after obtaining sanction under Section

19 of the P.C.Act. The complaints have been filed before

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the Special Judge invoking Section 200 of Cr.P.C. having

regard to Section 5 of P.C.Act. Prior to filing of the

complaints, sanction has been obtained under Section 19

of the P.C.Act. which is for launching a prosecution and not

merely for an investigation into the complaints.

Even under the provisions of the K.L.Act, prior to launching

of a prosecution by the Lokayukta, which may be under

the provisions of the P.C.Act or IPC, deemed sanction is

contemplated. Subsequently, the provisions of the Cr.P.C.

would apply for the trial of the public servant.

110. Thus, in the light of the applicability of the provisions

of the Cr.P.C. to the extent mentioned in the P.C.Act, the

only question which still lingers in the light of the

argument of the appellant’s counsel is whether a

complainant is wholly barred from invoking the provisions

of the Cr.P.C. vis-à-vis the offence against a public servant

under the provisions of the IPC as well as the P.C.Act,

subsequent to the enforcement of the K.L.Act. In this

context, we have to consider the fact that the Cr.P.C. is a

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Central enactment and the K.L.Act is a State enactment

and that both are in List-III of Schedule-VII of the

Constitution.

111. Article 254 of the Constitution deals with

inconsistency between laws made by Parliament and laws

made by the Legislatures of States on matters enumerated

in List III of Schedule VII of the Constitution. The said

Article deals with repugnancy between a Central law and a

State law in the concurrent sphere. The doctrine of

repugnancy applies when in a subject enumerated in the

concurrent list, there is a direct conflict between the

provisions of the Central law and the State law. Direct

conflict can arise when one law cannot be obeyed without

disobeying the other, Zaverbhai Amaidas v. State of

Bombay (AIR 1954 SC 752). But two enactments may

be inconsistent although it is possible to obey both the

enactments without disobeying the other where the

Central as well as the State enactments confer rights.

Then option is given to a citizen to invoke either of the

-: 153 :-

statutes. But more direct conflict would arise when the two

statutes i.e., the Central enactment and the State

enactment operate in the same field and cannot stand

together. In such a case, having regard to Clause 2 of

Article 254, the law made by the Parliament would prevail

over the State Law. Another instance of direct conflict

between the two provisions is when the principle of implied

repeal applies also known as repeal by necessary

implication.

112. The Hon’ble Supreme Court has enumerated the

test applicable for determining repugnancy under Article

254 of the Constitution while solving the question of

implied repeal. In Municipal Council, Palai through the

Commissioner of Municipal Council, Palai v.

T.J.Joseph (AIR 1963 SC 1561), it has been stated that

what has to be seen is “1) Whether there is direct conflict

between the two provisions; 2) Whether the Legislature

intended to lay down an exhaustive code in respect of the

subject matter replacing the earlier law; 3) Whether two

laws occupy the same filed”. While applying these tests,

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the Court is in effect trying to find out the intention of the

Legislature by examining the scope and object of the two

enactments by a comparison of the provisions. That is

exactly what has been done by us in this case.

113. On a comparison of the two statutes namely, Cr.P.C

and K.L.Act whether an inference of mutual irreconcilability

emerges has to be seen by the Court. While applying the

aforesaid principles and in the context of special and

general laws, it is noted that a prior special law cannot be

held to be impliedly repealed by a later general enactment.

As the special law deals only with a particular facet of the

subject covered by the general law and therefore, a

reconciliation is normally possible between a prior special

law and a later general law, in that the special law is

construed as carving out an exception in the general law of

enactment. Also, if the general law recognizes the

existence or continuance of a special law on the subject,

no question of inconsistency or repeal of the special law

can arise. Thus, it has been held that Sections 4 and 5 of

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the Cr.P.C. recognizes the continuance of special form of

procedure under any law for the time being in force and

hence, it has been held that the Haryana Children Act,

1974, which came into force on 01/03/1974 was not

repealed by the Cr.P.C. which came into force on

01/04/1974, in Rothas v. State of Haryana and

another [AIR 1979 SC 1839] (supra).

114. But if the intention of the later general law is clearly

to repeal or modify, a prior particular law, the general law

would prevail over the particular law. In other words,

where the intention to supersede the special law is clearly

evinced, the later general law would prevail over the

particular law. Thus, a general law may repeal the

provisions of a prior special law by express repeal or by

making provisions which are inconsistent with it, which

then can also be a case of implied repeal.

115. Another principle in this context is that a prior

general law may be affected by a subsequent special law.

If the subject matter of the special law prior to its

-: 156 :-

enforcement was being governed by the provisions of the

earlier Act i.e., general law, in such a case, the operation

of the special law would have the effect of repealing the

prior general law or curtailing its operation or adding

conditions to its particular cases (Ratan Lal Adukia V/s.

Union of India (1989) 3 SCC 537). Such a principle

would have to be applied as the Cr.P.C. being a prior

general enactment is impliedly repealed by a subsequent

special enactment, such as the P.C.Act. Infact, that

position is buttressed by Section 5 of the Cr.P.C. Also the

aforesaid principle has been applied and followed by

holding that the Sick Industrial Companies (Special

Provisions of the Act), 1985 (SICA), is a special Act and

would prevail over the Companies Act, 1956, which is a

general Act, wherever any inconsistency is seen in the

provisions of the two Acts, in NGEF Limited v. Chandra

Developers (P) Ltd., & another [2005 (8) SCC 219].

116. Continuing on the aspect of the implied repeal, it

has been stated that where two enactments are entirely

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affirmative and identical, no question of inconsistency

would arise [Source G.P.Singh - Interpretation of

Statutes –13th Edition of 2012]. In other words, where

the operative terms of the two enactments are identical

and the enactment are parallel to each other, there would

be no scope for the principles of doctrine of implied repeal.

Trust Mai Lachhmi Sialkoti Bradari v. Chairman,

Amritsar Improvement Trust and Others [AIR 1963

SC 976].

117. Similarly, when similar powers are conferred under

two enactments at different levels, it would not result in

implied repeal of the prior enactment. There is also no

legal bar for creating two sources of power to achieve the

same purpose but if the earlier affirmative enactment

conferring power of ‘A’ for the benefit of ‘B’ was intended

to last, only till the same was exercised by ‘B’ under a later

enactment, the assumption of that power by ‘B’ will result

in implied repeal by the earlier enactment.

-: 158 :-

118. In the same vein if a later statute describes an

offence created by an earlier statute and imposes a

different punishment or varies the procedure, the earlier

statute is repealed by implication. That principle however

has no application where the offence described in the later

Act is not the same as described in the earlier Act i.e.,

when the essential ingredient of the two offences are

different. M.Karunanidhi v. Union of India [AIR 1979

SC 898] and T.Barai v. Henry Ah Hoe and Others

[AIR 83 SC 150].

119. Under Article 20(2) of the Constitution, it is

mandated that no person shall be prosecuted and punished

for the same offence more than once. This would apply

when the two offences which form, the subject of

prosecution are the same i.e., the ingredients which

constitute that two offences are the same. If the offences

under the two enactments are different then Article 20(2)

would not apply. Also, Section 26 of the General Clauses

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Act would apply only when the offences described in the

two enactments are identical.

120. In the instant case, we have analyzed the provisions

of the Cr.P.C. and the K.L.Act and we have concluded that

the scope and effect of the two provisions are distinct. The

Cr.P.C. being a procedural law is a general enactment.

Similarly, the K.L.Act is a general enactment for the

purpose of achieving altogether a different object. The

jurisdiction of the criminal Courts or the Special Judge

under the provisions of the P.C.Act in the instant case is

neither whittled down nor fettered on account of the

provisions of the K.L.Act. In fact the Special Judge under

the P.C.Act does not act under the provisions of K.L.Act.

By a misnomer the special Judge is called as “Lokayukta

Judge”. The two enactments operate in two distinct fields.

There is no overlapping of the two enactments even

though both of them are general statutes. Thus, Sections

4 and 5 of the Cr.P.C. cannot be pressed into service to

contend that the provisions of the Cr.P.C. are impliedly

-: 160 :-

repealed on the enforcement of the K.L.Act in the matter

of investigation of complaints or that it is only the K.L.Act

which would be applicable vis-à-vis public servants and

that the provisions of Cr.P.C. cannot be invoked at all.

121. The decision of the Hon’ble Supreme Court in

Maganlal Chaganlal Pvt. Ltd., V/s. Municipal

Corporation of Greater Bombay (AIR 1974 SC 2009)

is also not applicable to the present controversy.

Thus, our conclusions on Point No.2 are as follows:-

(1) That Cr.P.C. is a procedural code and is a

general enactment made under List III of VII

Schedule of the Constitution.

(2) The P.C. Act combines in itself both procedural

as well as substantive law. It is an adjectival

statute and a special statute when read in

juxtaposition with the Cr.P.C. Both are Central

enactments and by virtue of Article 246 of the

Constitution, operate through out the territory

of India.

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(3) The K.L. Act is a State enactment and is a

general enactment whose operation cannot be

curtailed by another general enactment such

as the P.C. Act which is a Central Law,

particularly having regard to Section 24(2) of

the K.L.Act.

(4) That there is no repugnancy between the

provisions of the Cr.P.C. as well as the

provisions of the K.L.Act as both are general

enactments and operate in distinct fields. In

view of sub-section (2) of Section 24, the

remedies available to a complainant under the

provisions of the K.L.Act are in addition to the

remedies available to a complainant under any

other law, State or Central.

(5) Thus, the provisions of the K.L.Act do not

impliedly repeal the provisions of the Cr.P.C.

(6) Therefore, the launch of prosecution by the

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respondent, invoking the provisions of the

P.C.Act r/w Cr.P.C. is not curtailed by the

enforcement of the K.L.Act.

Point No.2 is accordingly answered against the

appellant.

POINT No.3:-

122. Learned Single Judge has stated, on a conjoint

reading of Sections 4 and 5 of Cr.P.C. with Sections 9, 12

and 14 of the K.L.Act that it is not evident that there is any

express exclusion of the operation of any alternative

measure available to set the Criminal Law in motion. That

when two or more remedies are available, the doctrine of

election would apply. Even if the two remedies happen to

be inconsistent, the person could choose or elect one of

them and commence an action accordingly. We do not

think that the doctrine of election would apply in relation to

the P.C.Act and the K.L.Act, because sub-section (2) of

Section 24 of the K.L.Act, which has received the assent of

the President, categorically states that the provisions of

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that Act are in addition to the provisions of any other

enactment or any rule or law under which any remedy in

any other manner is available to a person making a

complaint under that Act in respect of any action and

nothing in the K.L.Act shall limit or evade the right of such

person to avail of such remedy. Section 28 of P.C. Act is

also to a similar effect.

123. However, under sub-section (5) of Section 9 of the

K.L.Act, the Lokayukta can exercise discretion to refuse to

investigate or cease to investigate any complaint involving

any allegation concerning an action after a remedy under

any other law has been availed by the complainant and in

the circumstances of the case, it would be more

appropriate for the complainant to avail such a remedy. In

such an event, the complainant would have to disclose

before the Lokayukta any action initiated by him under any

other law when the complaint is filed under the K.L.Act.

All the three enactments, viz. Cr.P.C., P.C.Act and K.L.Act

could in fact be read harmoniously and their provisions

-: 164 :-

appear to be complementary in subserving the object of

each other, without any overlapping of power or procedure

and could be pressed into service for, inter alia, achieving

the object of investigation, trial and punishment of the

offence of corruption.

124. Similarly, filing of a complaint under the provisions

of the K.L.Act would not come in the way of the very same

complainant or any other person initiating action against

the very same public servant on similar allegations under

any other law. The availability of plural remedies under

distinct enactments such as the P.C.Act and the K.L.Act

would not mean that complainant would have to choose his

remedy under one of the enactments. A complainant may

avail of the remedies under both the Acts but he must

bring it to the notice of the authorities before whom the

action is initiated, if a remedy under any other enactment

has been availed, so that the authority before whom the

second action is initiated on the same subject matter could

at the outset decide as to whether it should proceed with

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the said complaint. Therefore, while affirming the order of

the learned Single Judge in all other respects, we would

only differ with regard to the observations made on the

doctrine of election stated by the learned Single Judge in

Para No.5 of the impugned order. Accordingly, Point No.3

is answered.

125. In the result, the Writ Appeals are dismissed

without any order as to costs.

Sd/- CHIEF JUSTICE

Sd/-

JUDGE

S/mvs*