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The Code Of Criminal Procedure, 1973
The Prevention of Corruption Act, 1988
The Indian Penal Code
Section 7 in The Prevention of Corruption Act, 1988
Section 200 in The Code Of Criminal Procedure, 1973
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Shezad Afzal Khan vs State Of Karnataka on 17 October, 2014

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Karnataka High Court
Sri B S Yeddyurappa vs Sri Sirajin Basha on 29 November, 2013
Author: Chief Justice B.V.Nagarathna
                                                 R
                          -: 1 :-



       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.)

                         *****

-: 2 :-

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. -: 3 :-

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 -: 4 :- 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 -: 5 :- 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 -: 6 :- 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 -: 7 :- 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? -: 8 :-

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 -: 9 :- 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 -: 10 :- 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 & -: 11 :- 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 -: 12 :- 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 -: 13 :- 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 -: 14 :- 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 -: 15 :- 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.

-: 16 :-

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 -: 17 :- 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 -: 18 :- 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 -: 19 :- 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. -: 20 :- 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 -: 21 :- 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 -: 22 :- 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.

-: 23 :-

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.

-: 24 :-

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- -: 25 :- 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.

-: 26 :-

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 -: 27 :- (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 -: 28 :- 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 -: 88 :- 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 -: 89 :- 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 -: 90 :- 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 -: 91 :- 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 -: 92 :- 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 -: 93 :- 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 -: 94 :- 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 -: 95 :- 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 -: 96 :- 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 -: 97 :- 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 -: 98 :- 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 -: 99 :- 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 -: 100 :- 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 -: 101 :- 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 -: 102 :- 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 -: 103 :- 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 -: 104 :- 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 -: 105 :- 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 -: 106 :- 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 -: 107 :- 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 -: 108 :- 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 -: 109 :- 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:- -: 110 :-

"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 -: 111 :- 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. -: 112 :- 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 -: 113 :- 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 -: 114 :- 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 -: 115 :- 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 -: 116 :- 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 -: 117 :- 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 -: 118 :- 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 -: 119 :- 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 -: 120 :- 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 -: 121 :- 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 -: 122 :- 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 -: 123 :- 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 -: 124 :- 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 -: 125 :- 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 -: 126 :- 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 -: 127 :- 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 -: 128 :- 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 -: 129 :- 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 -: 130 :- 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.

-: 131 :-

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 -: 132 :- 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 -: 133 :- 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 -: 134 :- '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 -: 135 :- 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 -: 136 :- 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 -: 137 :- 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 -: 139 :- 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 -: 140 :- 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 -: 143 :- 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 -: 145 :- 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 -: 146 :- 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 -: 147 :- 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. -: 148 :- 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 -: 149 :- 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 -: 150 :- 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 -: 151 :- 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 -: 152 :- 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, -: 154 :- 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 -: 155 :- 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 -: 157 :- 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 -: 159 :- 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.

-: 161 :-

(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 -: 162 :- 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 -: 163 :- 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 -: 165 :- 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*