While setting aside the FIR for the third time filed against Abhay Kumar, a former MLA from Bagevadi Assembly constituency in Karnataka’s Belagavi district, who is accused of accumulating disproportionate assets, the Karnataka High Court noted that even though the Trial Court had earlier directed the police twice to register FIR and on both occasions the FIRs were quashed by the High Court since no sanction had been obtained from the State Government to prosecute him, despite such facts, the Trial Court had directed the police to file FIR for the third time to investigate the matter.

A Single Judge Bench of Justice K. Natarajan observed that “Admittedly, the complainant not produced any sanction order while filing the complaint either to take cognizance by the session judge himself and for posting the matter for recording the sworn statement under section 202 of CrPC and even for referring the complaint to the police, the prior sanction under section 19 of PC Act is required”.

Senior Advocate C.H Jadhav appeared for the Petitioner, whereas Advocate B.B Patil appeared for the Respondent.

Going by the background of the case, the defacto complainant had filed a private complaint before the Trial Court for the offence punishable under Sections 13 (1) (e) read with 13(2) of Prevention of Corruption Act,1988 (PC Act), and in turn the Special Judge referred the complaint to the Lokayuktha police for investigation under Section 156 (3) of Criminal Procedure Code,1973 (CrPC). It was alleged that the accused being a sitting MLA representing the Bagevadi Assembly constituency, had amassed wealth more than the known sources of income. Thereby the accused being public servant committed the offence under the provisions of PC Act. It was referred to the Lokayukta police who registered an FIR but in 2013, the High Court had quashed the FIR and remitted the matter back to the Special Court Judge. The Trial Court once again referred the complaint to the Lokayukta police (subsequently Anti-Corruption Bureau) which had registered an FIR in 2017 but in the same year, the High Court had quashed this FIR. Once again, the Trial Court referred the matter to ACB but after it was scrapped and all its cases shifted to the Lokayukta police, the FIR was investigated by it which was challenged in 2021 before the High Court. Hence, present petition by the accused seeking quashing the order dated Sep 21, 2017 passed by the Trial Court and consequently quashing of the FIR, as being illegal and void.

After considering the submission, the Bench quashed the third FIR and observed that since sanction under Section 19 of PC Act had not been obtained from the Government to prosecute the then MLA, he was protected under Section 197 of CrPC which provided with the fact that no Court could take cognizance of alleged offence by public servants without obtaining the sanction of the Government, and therefore the private complaint was not sustainable under the law.

Placing reliance on the judgment of the Supreme Court in Priyanka Srivastava and Anr. v. State of U.P. and Ors. [(2015) 6 SCC 287], the Bench observed that a complainant could not directly file a private complaint under Section 200 CrPC for the purpose of referring the complaint to police under Section 156(3) CrPC without approaching the police.

Thus, the Bench stated that the complainant shall approach the higher officer of the police under Section 154(3) CrPC and only after exhausting the remedies before both the provisions, he should approach the Magistrate under Section 200 CrPC for the purpose of reference under Section 156(3) CrPC.

The High Court found that there was no document to show that there was a compliance of the said legal position in order to refer the complaint and to register the FIR and to investigate the matter as against the accused.

Accordingly, while allowing the petition, the High Court held that the private complaint was not sustainable in law and therefore continuing the investigation was nothing but an abuse of the process of law and was liable to be quashed.

Cause Title: Abhay Kumar v. Superintendent of Police

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Karnataka High CourtJustice K. NatarajanPrevention of Corruption Act

Pankaj Bajpai