- (1.) PRESENT writ petition under Article 226 of the Constitution of India has been preferred feeling aggrieved with the respondent Lokayukta in not permitting an Advocate to appear and contest the pending investigation under Lokayukta and Uplokayukta Act, 1975 (in short the Lokayukta Act).
(2.) SRI Anupam Mehrotra learned counsel for the petitioner submits that in view of notification dated 9.6.2011, issued by the Central Government, under Section 30 of the Advocates Act, 1961, the Advocates may appear before the Lokayukta also apart from other authorities where the evidence is recorded during the course of a proceeding. The petitioner, who is a Former Cabinet Minister of the State of U.P., is facing investigation before the Lokayukta of the State with regard to certain misconduct alleged to have been committed by him while discharging obligation as Cabinet Minister of the State of U.P. During the course of investigation, the petitioner tried to defend his cause through an Advocate but it was declined by the Lokayukta. Hence, the present writ petition has been preferred. Apart from claiming relief in the nature of mandamus to permit an Advocate to appear and defend the petitioner's cause before the Lokayukta, a prayer has also been made that the pending proceeding before the Lokayukta suffers from lack of jurisdiction hence it be set aside. So far as the petitioner's prayer to quash the proceeding before the Lokayukta is concerned, we are of the view that it is always open to petitioner to approach the Lokayukta with regard to alleged illegality on which the Lokayukta may record his finding in accordance with law. However, the argument advanced by the petitioner's counsel to the effect that an Advocate is entitled to appear before the Lokayukta, requires consideration. Accordingly, we entertain the writ petition and record our finding to the limited extent with regard to right of Advocates to appear before the Lokayukta. The Lokayukta is appointed under Section 3 of the Lokayukta Act for the purpose of conducting investigation relating to a complaint of citizen. The power conferred on the State Government to appoint the Lokayukta, has been provided under Section 3 of the Lokayukta Act which provides that the Lokayukta shall be appointed after consultation with the Chief Justice of the High Court of Judicature at Allahabad and the leader of the Opposition in the Legislative Assembly, and if there be no such Leader a person elected in this behalf by the members of the Opposition in that House in such manner as the Speaker may direct.
(3.) SECTION 7 of the Lokayukta Act deals with the matters which may be investigated by Lokayukta or Up-Lokayukta. For convenience, "SECTION 7 is reproduced as under: 7.Matters which may be investigated by Lokayukta or Up-Lokayukta-- "(1) Subject to the provisions of this Act and on a complaint involving a grievance or an allegation being made in that behalf, the Lokayukta may investigate any action which is taken by, or with the general or specific approval of,-- "(i) a Minister or a Secretary; and (ii) any public servant referred to in sub-clause (ii) or sub-clause (iv) of clause (j) of SECTION 2; or (iii) any other public servant being a public servant of a class or sub-class of public servants notified by the State Government in consultation with the Lokayukta in this behalf ". (2) Subject to the provisions of this Act and on a complaint a grievance or an allegation being made in that behalf, an Up-Lokayukta may investigate any action which is taken by or with the general or specific approval of any public servant not being a Minister, Secretary or other public servant referred to in sub-section (1). (3) Notwithstanding anything contained in sub-section (2), the Lokayukta may, for reasons to be recorded in writing, investigate any action which may be investigated by an Up-Lokayukta under that sub-section. (4) Where two or more Up-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 Up-Lokayukta under this Act and no action taken or thing done by him in respect of such investigation shall be open to question on the ground only that such investigation related to a matter which is not assigned to him by such order." A plain reading of the aforesaid provisions, reveals that subject to provisions of the Act, on a complaint involving a grievance or an allegation being made in that behalf, the Lokayukta may investigate and recommend to Government. Section 8 of the Lokayukta Act provides that Lokayukta/Up-Lokayuktas shall not conduct any investigation except on a complaint made under and in accordance with Section 9 of the Lokayukta Act. Section 9 contains to the provisions with regard to complaints. For convenience, Section 9 is reproduced as under: "9. Provisions relating to complaints - (1) Subject to the provisions of this Act, a complaint may be made under this Act to the Lokayukta or an Up-Lokayukta - (a) in the case of a grievance, by the person aggrieved; (b) in the case of an allegation, by any person other than a public servant; Provided that, where the person aggrieved is dead or is for any reason unable to act for himself, the complaint may be made by any person who in law represents his estate or, as the case may be, by any person who is authorised by him in this behalf: [Provided further that in the case of a grievance involving a complaint referred to in sub-clause (ii) of clause (d) of Section 2, the complaint may be made also by an organization recognised in that behalf by the State Government.] (2) Every complaint shall be accompanied by the complainants' own affidavit in support thereof and also affidavits of all persons from whom he claims to have received information of facts relating to the accusation, verified before a notary, together with all documents in his possession or power pertaining to the accusation. (3) Every complaint and affidavit under this section as well as any schedule or annexure thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings and affidavits respectively. (4) Not less than three copies of the complaint as well as of each of its annexures shall be submitted by the complainant. (5) A complaint which does not comply with any of the foregoing provisions shall not be entertained. (6) Notwithstanding anything, contained in sub-sections (1) to (5), or in any other enactment, any letter written to the Lokayukta or Up-Lokayukta by a person in police custody, or in a gaol or in any asylum or other place for insane persons, shall be forwarded to the addressee unopened and without delay by the Police Officer or other persons in charge of such gaol, asylum or other place, and the Lokayukta or Up-Lokayukta, as the case may be, may entertain it and treat it as a complaint, but no action in respect of such complaint shall be taken unless it is accompanied or subsequently supported by an affidavit under sub-section (2)." ;