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Synopsis

The Karnataka High Court has said that private complaints filed before a special court against public servants cannot be entertained unless those are accompanied with prior permission to register FIR, as per the amended provision of Section 17A of the Prevention of Corruption Act.

A single judge bench of Justice M Nagaprasanna said if this practice of filing of complaints under Section 200 Criminal Procedure Code is permitted, it would only open gates for frivolous and vexatious litigation by the complainants against the public servants.

The court issued directions for Sessions Judges/ Special Court to entertain complaints against public servants filed by private persons alleging offences punishable under the provisions of the Prevention of Corruption Act, 1988 along with an amalgam with other offences under the Indian Penal Code.

"Such approval being appended to the private complaint is sine qua non for maintainability of the complaint," the court held.

The court quashed an FIR registered against Dr Ashok V, a district officer in the Social Welfare Department after finding glaring lacunae in the manner in which the complaint was entertained.

"Permitting further proceedings to continue against the petitioner would become an abuse of the process of the law and result in miscarriage of justice," it said. 

The court said that once the private complaint is referred for investigation, the police/Lokayukta would have no choice but to register a crime. 

“What happens in this process is the protective filter for vexatious, frivolous or malicious prosecution against the public servants created by the Parliament by the amendment in the year 2018 bringing in Section 17A to the Act is rendered illusory. Therefore, such complaints, which do not accompany prior approval under section 17A with the private complaint or before referring the matter for investigation, should not be entertained by the Magistrate/Sessions Judge, as the case would be,” the court said.

According to Section 17A, when the offence alleged is related to any recommendation made or decisions taken by a public servant in the discharge of his official functions or duties, no enquiry, inquiry or investigation shall be conducted without the prior approval of the competent authority.

In the instant case, the petitioner challenged the order passed by a special court at Chikkaballapur in December 7, 2021, referring the complaint filed by one Syed Malik Pasha, an RTI activist, for lodging the FIR on allegations of irregularities in the procurement of essential items for the hostels run by the Social Welfare Department.

Having noted several instances of misuse of private complaints, the court issued directions to the special courts not to entertain such complaints if they do not comply with the guidelines contained in the order.

The court relied upon the case of Priyanka Srivastava Vs State of UP (2015), in which the Supreme Court had stressed the fact that private complaints without accompanying an affidavit should not be entertained.

"In the light of Section 17A creating a protective filter for vexatious and frivolous prosecution and complaints to pass muster to the rigors of Section 17A, I am of the considered view that it must be observed with complete strictness bearing in mind public interest, and protection available to such officers against whom offences are alleged, failing which many a time it would result in a vexatious prosecution. This cannot however, be considered as a protective shield for the guilty, but a safeguard for the innocent," the judge said.

The court laid down the guidelines:

(1) The complaint should narrate that the complainant has made his efforts to register a crime before the Karnataka Lokayukta and no action is taken by the police on the complaint. Mere statement in the complaint would not suffice but documentary evidence to demonstrate such fact should be appended to the private complaint. 

(2) The private complaint should also append prior approval granted by the competent authority to register a private complaint, akin to a prior approval for an FIR to be registered by the Investigating Agency as obtaining under Section 17A of the Act. This would become a prerequisite to the concerned Court to refer the matter for investigation under Section 156(3) of the CrPC.

(3) The aforesaid direction (2) would be applicable only if the offences alleged would be the ones punishable under the Prevention of Corruption Act or the allegation would be an amalgam of offences both under the Prevention of Corruption Act and the Indian Penal Code. This direction at (2) will not be applicable if the alleged offences are only of the Indian Penal Code.

Case Title: Dr. Ashok V. Vs. The state and anr.