Karnataka High Court
Mr B Arun vs Karnataka State Police on 14 December, 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14 T H DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
WRIT PETITION NO.20194 OF 2021(GM-RES)
BETWEEN:
1. Mr. B Arun
Aged about 34 years,
Income Tax Officer,
Income Tax Office,
C.R.Building, Queens Road ,
Beng aluru-560001
Presently Working as
Dep uty Commissioner
Of Income Tax-TDS,
Circle-1(1).
2. Mr. S Arun Kumar
Income Tax Officer,
Income Tax Office,
C.R.Building, Queens Road ,
Beng aluru-560001
Presently Working as
Dep uty Director
Of Income Tax-Inv,
Unit-1(1).
3. Mr. Rohit Sharma
Income Tax Officer,
Income Tax Office,
C.R.Building, Queens Road ,
Beng aluru-560001
:: 2 ::
Presently Working as
Income Tax Inspector-Inv
Unit-3(2) ...Petitioners
(By Sri M.B.Naragund, Addl. Solicitor General, for
Sri K.V.Aravind, Advocate)
AND:
1. Karnataka State Police,
Kodig ehalli Police Station,
3H5M+C5F,
BB Nag ar, Koti Hosahalli,
Beng aluru-560092.
2. Mr. Pawan Kumar Sachdeva
S/o Late Buta Ram
Aged about 49 years,
Residing at
No.2, Anand a Extension,
Vidyaranyapuram (P.O),
Beng aluru-560097.
...Respondents
(By Sri B.J.Rohith, HCGP for R1;
Sri K.Diwakara, Advocate for R2)
This Writ Petition is filed under Article 226 of the
Constitution of India read with Section 482 of Criminal
Procedure Cod e, praying to quash the PCR
No.10270/2019, Annexure-W and consequential FIR
filed by the R1 in Cr.No.59/2021 dated 20.04.2021
pend ing on the file of VII ACMM, Bengaluru produced
as Annexure-T to the Writ Petition and etc.
This Writ Petition coming on for preliminary
hearing this day, the Court made the following:
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ORDER
In this writ petition the petitioners have sought a certiorari to quash the proceedings in PCR 10270/2019 on the file of VII ACMM, Bengaluru and the consequent FIR in Crime No. 59/2021 registered at Kodigehalli Police Station. The facts necessary for disposal of this writ petition are as follows:
2. The petitioners are all income tax officers.
In between the dates 7.8.2019 and 10.8.2019, a raid was conducted by the office of the income tax department at more than 20 places on the premises of an industrial establishment namely A- One Steels India Private Limited. In relation to one such raid conducted in a premises situated at Sahakarnagar, Bengaluru, the second respondent herein made a complaint to the police alleging excesses committed by the petitioners while conducting the raid. The police did not take any :: 4 ::
action, rather issued non-cognizable offence report (NCR). This prompted the second respondent to approach the court of Magistrate with a complaint under section 200 Cr.P.C to prosecute them in relation to offences punishable under sections 324, 503, 506, 166, 120B read with 34 of IPC. The learned Magistrate referred the matter to the police for investigation under section 156(3) Cr.P.C. Consequently, FIR in Crime No. 59/2021 came to be registered and the police issued notices to the petitioners to appear for investigation. Hence, this petition.
3. All the three petitioners herein along with one Mr.Anand, Assistant Director of Income Tax, on earlier occasion approached this court by filing W.P.No.14567/2021. It was dismissed on 26.10.2021 as the writ petition was not verified by the aggrieved party. Liberty was given to file a :: 5 ::
fresh writ petition and hence the petitioners are again before this court.
4. I have heard Sri M.B.Nargund, learned Additional Solicitor General, Sri K.Diwakara for respondent No.2 and the Government Pleader for respondent No.1.
5. Sri Nargund raised the following contentions: -
(i) The raid was conducted at various places by the officers of income tax department in between 7.8.2019 and 10.8.2019. The petitioners exercised their official duty being the officers of the income tax department. Section 132 (4) of Income Tax Act empowers the authorized officer to record statement of any person who is found to be in possession of books of :: 6 ::
accounts, money, bullion, etc., The statement thus recorded during search may be used during investigation. The petitioners have produced copies of the statements that they recorded after examining the second respondent at the time of search. Therefore this shows that the petitioners did nothing more than conducting a search in the premises of the second respondent. They exercised their official duty.
(ii) The second respondent approached the Magistrate with a mala fide intention to get over the information that the petitioners extracted from him while examining under section 132 of the Income Tax Act.
(iii) The second respondent complains of certain excesses committed by the petitioners. He has stated that he was :: 7 ::
assaulted by the first petitioner and as a result there was damage to his left ear. It is found in the complaint that he went to Bowring Hospital for treatment, and if really the second respondent had sustained such a kind of injury as he has stated in the complaint, the doctor who treated him would have registered a medico-legal case at that point of time. But, the second respondent then went to K.C.General Hospital for treatment and thereafter went to the police station. This itself is enough to show that if really the second respondent had suffered injury, in the first instance the doctor at Bowring Hospital would have passed on the information to the police. Very interestingly the second respondent went to Kodigehalli Police :: 8 ::
Station on 14.8.2019 and that the police issued NCR opining that there was no case for investigation. This itself is enough to demonstrate falsehood in the case of the second respondent.
(iv) The complaint dated 13.8.2019 addressed to the Inspector of Police, Kodigehalli Police Station, very clearly shows that the other three persons namely Pawan Kumar Jindal, Pankaj Kumar Gidra and Sachin Dhanuka have not signed it though their names are typed. Only the second respondent had signed it. That means the others did not join for the reason that the contents of the said complaint are not correct. If it is read, there are averments which show that Pawan Kumar Jindal, Sachin Dhanuka were :: 9 ::
also tortured by the income tax officers. The very fact that the others did not come forward to sign is itself sufficient to doubt the veracity of the allegations made by the second respondent in his private complaint made before the court.
(v) One of the Directors of A-One Steel and Alloys Limited made a report to the police on 13.8.2019 alleging that income tax officer by name Suresh subjected Chand Pasha, Shamshuddin, Ashif, Naveen Kumar to harassment while conducting raid at Munirabad.
But the police filed 'B' report on that FIR. This shows that the Directors of A-One Steel and Alloys Limited instigated their employees to make false complaints against the officers of the income tax department, in order to :: 10 ::
get over the information that the officers collected while conducting raid. This shows malafide intention.
(vi) When the complaint was filed before the Magistrate, the affidavit required to be filed in accordance with the ratio in Priyanka Srivastava and Another vs State of Uttar Pradesh and others [(2015) 6 SCC 287], had not been filed. According to the respondent No.2, the affidavit has been now submitted, but it does not cure the legal requirement. The proceedings do not get ratified.
(vii) Section 293 of the Income Tax Act bars any proceedings either Civil or Criminal against the officers of the income tax department. In this view, private complaint is not maintainable.
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(viii) The complaint has been filed without obtaining sanction as required under Section 197 of Cr.P.C. Sanction is a must because all the allegations aspersed against the petitioners are in connection with their discharging official duties. Since now sanction was obtained, the complaint should have been dismissed by the Magistrate, without taking cognizance.
6. Learned counsel for respondent No.2, Sri Diwakara K, made the following submissions:
(i) Sanction is not necessary, because, in the private complaint, one of the offences alleged is under Section 166 of IPC which deals with excesses committed by the public servants while discharging their official duty. If Section 353 IPC deals with taking action against the :: 12 ::
persons who cause obstruction to the performance of official duty by the public servants, section 166 of IPC provides for taking action against the public servants. In this view, sanction is not necessary.
(ii) The petitioners have been issued with notice under Section 41A of Cr.P.C., to appear for interrogation. It is the duty of everyone to appear for investigation whenever the police issues notice. It cannot be called harassment. The petitioners have challenged this notice and in this view, writ of certiorari cannot be issued.
(iii) Even if sanction is necessary, it can be obtained at any time, in accordance with Section 173(8) of Cr.P.C.
(iv) The petitioners were under the wrong impression that a verifying affidavit filed along with the complaint would meet the :: 13 ::
requirement of the dictum of the Supreme Court in Priyanka Srivastava. Now that an affidavit has been filed, it cures the defect. If according to the petitioners, the Magistrate should not have accepted the affidavit, the petitioners should have challenged it before this Court and that issue cannot be raised now.
(v) The incident that has been complained of in the complaint cannot be co-related with the raid conducted at Munirabad.
The allegations made in the complaint clearly show as to how the second respondent was brutally harassed by the petitioners. There is damage to the left ear of the second respondent. This shows that the petitioners exceeded their limits in the guise of conducting raid. In this view, the investigation has to go on :: 14 ::
and there cannot be interference by this Court with the investigation process. Hence this writ petition is to be dismissed.
7. I have considered the arguments. Before dealing with the main issues, one argument of Sri Naragund in regard to non- compliance of the mandate of Supreme Court in the case of Priyanka Srivastava may be considered. It is submitted by Sri Diwakara that affidavit has been filed now. According to Sri Naragund subsequent filing of affidavit does not cure the requirement. What is held in the case of Priyanka Srivastava is that if an affidavit is filed along with the complaint in which a reference to police under section 156(3) Cr.P.C is sought, it makes the complainant more responsible. It has been observed by the Supreme Court that since the complaints are :: 15 ::
being filed in a routine manner without taking any responsibility whatsoever in order to harass certain persons, if the contents of the affidavit are found to be false, the complainant can be prosecuted for swearing to a false affidavit. It is also necessary that the complainant must state in the affidavit that before approaching the court, he approached the police station and then the Superintendent of Police. If these ingredients are found in the complaint as also in the affidavit, it enables the Magistrate to take cognizance. Therefore though filing of affidavit is made mandatory, in case it is not filed, it may be cured by filing an affidavit at a subsequent stage. It is a curable mandatory requirement. Now, in this case it is stated that it is filed. The procedural mandate appears to have been complied with and therefore the argument of Sri Naragund on this score is not sustainable.
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8. Now coming to the main point, the petitioners have sought to quash the proceedings against them on the ground that they have been falsely implicated to wreak vengeance as they conducted search in the premises of the company in which the respondent No.2 is employed. Even if the allegations made in the complaint are taken to be true on their face value, so far as sanction is concerned, what section 197 Cr.P.C. envisages is that the court cannot take cognizance without obtaining sanction. Sanction is absolutely essential if the act amounting to an offence has reasonable nexus with performance or discharge of official duty. In D.Devaraja Vs. Owais Sabeer Hussain - (2020) 7 SCC 695, the position is made clear in the following paragraphs.
"68. If in doing an official duty a policeman has acted in excess of :: 17 ::
duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government sanction for initiation of criminal action against him.
69. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority."
(underlining by me)
9. Explanation to section 197 Cr.P.C. states that sanction is not necessary if a public servant is accused of committing offences under section :: 18 ::
166A, section 166B, section 354, sections 354A to 354D, section 370, section 375, section 376, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB and section
509. Section 166 IPC is not there in the explanation part, that means sanction is necessary for the offence under section 166 IPC. Question is at what stage sanction is to be obtained. The answer to this question is found in the judgment of the Supreme Court in the case of D.T.Virupakshappa Vs. C. Subash (2015) 12 SCC 231. It is held "5. The question, whether sanction is necessary or not, may arise at any stage of the proceedings, and in a given case, it may arise at the stage of inception as held by this Court in Om Prakash and others v.
State of Jharkhand [(2012) 12 SCC 72]. To quote:
"41. The upshot of this discussion is that whether sanction is :: 19 ::
necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his official duty and is entitled to protection given under Section 197 of the Code. It is not possible for us to hold that in such a case, the court cannot look into any documents produced by the accused or the public servant concerned at the inception. The nature of the complaint may have to be kept in mind. It must be remembered that previous sanction is a precondition for taking cognizance of the offence and, therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea. ..."
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10. Therefore, the question of obtaining sanction may arise at any stage, and moreover, it is for taking cognizance only. Production of sanction is not necessary when a reference to police under section 156(3) Cr.P.C. is sought. The complainant's only grievance in his application under section 156(3) Cr.P.C. is that the police did not initiate any action when he approached the police, and therefore seeks intervention of court for the purpose of investigation. If the Magistrate or the court decides to refer the case for investigation under section 156(3) Cr.P.C., it does not amount to taking cognizance; and only if the investigating officer is able to collect evidence showing commission of offence, he must apply for sanction and obtain it for the purpose of submitting charge sheet to the court. That means, at the stage of taking cognizance sanction order from the concerned government as envisaged in :: 21 ::
clauses (a) and (b) of Section 197(1) of Cr.P.C. must be made available.
11. In the case on hand, cognizance is not yet taken; the Magistrate has just ordered for investigation under section 156(3) Cr.P.C. It is too early to expect production of sanction order. It may be seen that in the case of D.T.Virupakshappa, the issue as regards sanction emerged after the Magistrate took cognizance.
12. Then with regard to section 293 of Income Tax Act, what is to be stated is that, though this section bars suits or prosecution against the government or any officer of the government, it applies when anything is done in good faith. This is a question of fact; it is not possible to draw any inference at the inception whether act alleged against the petitioners were done in good faith or not. As of now, the petitioners have received notice under section 41A Cr.P.C., that means they :: 22 ::
can explain the situation to the investigating officer, and also produce all the materials available with them, so that the investigating officer can take a proper decision for preparing final report. Though the jurisdiction under section 482 Cr.P.C. can be exercised for quashing FIR, it is settled principle that such a power has to be sparingly exercised. In the case on hand, since there is scope for investigation, FIR cannot be quashed. In the result the writ petition is dismissed, but the Magistrate is hereby directed to pass fresh orders as regards referring the case for investigation under section 156(3) Cr.P.C in view of affidavit being filed by the respondent.
Sd/-
JUDGE ckl/-