Karnataka High Court
Subhashchandra vs The State Of Karnataka And Anr on 25 September, 2024
Author: K Natarajan
Bench: K Natarajan
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NC: 2024:KHC-K:7302
CRL.P No. 200578 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K NATARAJAN
CRIMINAL PETITION NO.200578 OF 2024
(482(Cr.PC)/528(BNSS))
BETWEEN:
SUBHASHCHANDRA S/O NIMBENNAPPA,
AGE: 75 YEARS, OCC: RETIRED VILLAGE ACCOUNTANT,
R/O ITAGA, TQ. CHITTAPUR,
DIST. KALABURAGI-585124.
...PETITIONER
(BY SRI. CHAITANYAKUMAR CHANDRIKI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH CHITTAPUR P.S,
DISTRICT KALABURAGI-585124,
Digitally signed
by SHIVALEELA REPRESENTED BY ADDL. SPP,
DATTATRAYA HIGH COURT OF KARNATAKA,
UDAGI KALABURAGI BENCH-585107.
Location: High
Court Of
Karnataka 2. RAVINDRA S/O SHANKAR DAAMA,
AGE: 41 YEARS, OCC: TAHASILDAR,
R/O CHITTAPUR, TQ. CHITTAPUR,
DIST. KALABURAGI-585124.
...RESPONDENTS
(BY SMT. ANITA M. REDDY, HCGP;
NOTICE TO R-2 SERVED BUT UN-REPRESENTED )
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO QUASH THE FIR COMPLAINT AND CHARGE
SHEET IN C.C. NO. 1437/2022 (CRIME NO.58/2015) REGISTERED BY
THE CHITTAPUR P.S. DIST. KALABURAGI FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 465, 468, 471, 406, 420 READ WITH
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NC: 2024:KHC-K:7302
CRL.P No. 200578 of 2024
34 OF IPC, PENDING ON THE FILE OF CIVIL JUDGE AND JMFC COURT
AT CHITTAPUR, DIST. KALABURAGI.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K NATARAJAN
ORAL ORDER
(PER: HON'BLE MR JUSTICE K NATARAJAN) This petition is filed by the petitioner-accused No.1 under Section 482 of Cr.P.C. for quashing the criminal proceedings in C.C.No.1437/2022 arising out of Crime No. 58/2015 registered by Chittapur Police Station, Kalaburagi, charge-sheeted for the offence punishable under Sections 465, 468, 471, 406, 420 read with Section 34 IPC pending on the file of Civil Judge & JMFC, Chittapur.
2. Heard the arguments of the learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State. Respondent No.2 served and unrepresented.
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3. The case of the prosecution is that on the complaint filed by the Tahsildar of Chittapur to the police on 21.06.2015 alleging that as per the direction issued by the Deputy Commissioner, Kalaburagi, and report sent by the Revenue Inspector on 21.06.2015 and Assistant Commissioner letter dated 07.06.2012/07.07.2012 on verifying the revenue documents from the year 1963-64 to 1992-93, it was found in Sy.No.198 about 195.15 acres land belongs to the Government and during the year 1993-94 when the accused working as a Village Accountant in collusion with the accused Nos.2 and 3 given the RTC by changing the name of the accused No.2 and 3 measuring 1 acre and 3 acres respectively, which was belongs to the Government land and given to the accused Nos.2 and 3. Therefore, on the direction of the Deputy Commissioner, the Tahsildar filed the complaint. The police initially registered the FIR also for the offences 192(A), 192(A)(1), 192(III) of Karnataka Land Revenue Act, 1964 (for short, hereinafter referred to as 'the KLR Act'). Subsequently investigated the matter and filed the -4- NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 charge-sheet by dropping the Land Revenue Act and charge-sheeted only for the offence punishable under Section 465, 468, 471, 406, 420 read with Section 34 of IPC, which is under challenge.
4. The learned counsel for the petitioner challenged the criminal proceedings mainly on the ground that the petitioner was worked as village accountant during the year 1993-94 and he was retired from the service in the year 2007 itself and the FIR was registered in 2015, no proceedings or departmental enquiry shall be initiated against the retired employee after four years of the retirement as per Rule 214 of KCSR. Therefore, initiating criminal proceeding against the petitioner is nothing but abuse of process of law.
5. The second contention of the learned counsel is that the petitioner said to be committed offence during discharge of official duty as a village accountant. Therefore, the sanction of the state Government under -5- NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 Section 197 Cr.P.C. is must which was not obtained. Therefore, the criminal proceeding cannot be sustainable.
6. In support of this case, he has relied upon the judgments of the Co-ordinate Bench in Crl.P.No.3245/2024 dated 24.06.2024 and Writ Petition No.17708/2022 (S-RES) dated 16.11.2022. Hence, prayed for allowing the petition.
7. Per contra, learned High Court Government Pleader has seriously objected the petition and contending that the offence committed by the accused is not discharging the official duty which is in collusion with the accused Nos.2 and 3 got changed the name of the accused and grabbed the Government land more than 7 acres which cannot be considered as discharging official duty and a criminal prosecution can be launched even after the retirement of the official. Therefore, the learned High Court Government Pleader prayed for dismissal of the petition.
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8. Having heard the arguments and perused the records, on the perusal of the same, it is alleged that during the year 1992-93 the accused was Village Accountant at that time on the request of the accused Nos.2 and 3 is said to be created the false document, forged the signature and mutated the names of the accused Nos.2 and 3 in respect of the land belongs to the Government in Sy.No.198, the mutation was made No.117/2008-09 for 4 acres of land in the name of accused No.3 and 3 acres of land in the name of the accused No.2, total 7 acres of land has been grabbed belongs to the Government. The investigation paper reveals this accused was in collusion with the accused Nos.2 and 3, changed the names of the accuse Nos.2 and 3 and committed the offence.
9. Now the contention of the petitioner counsel is that the petitioner was retired from the service in the year 2007 itself. Therefore, after eight years of his retirement, the criminal proceedings cannot be initiated against him. -7-
NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 In support of his case, he has relied upon the judgment of the Co-ordinate Bench in Writ Petition No.17708/2022 in the case of Anil Kumar and another vs. The State of Karnataka and another DD 16.11.2022 wherein the said case where the petitioner was retired from the service and superannuation on 30.06.2018 and 31.08.2020 and enquiry was initiated by the department as per the terms of Rule 214 of KCSR Rules, wherein para-2 of the order reveals that there was already enquiry was initiated in the2005-06 itself prior to the retirement. Therefore, second charge memo for the year 2022 is not sustainable after the retirement of the said petitioner. Therefore the Co-ordinate Bench quashed the initiation of the departmental enquiry after more than four years. The facts and circumstances of case herein this case there is no departmental enquiry initiated by the department after four years of the retirement of this petitioner. Therefore, the said order relied by the petitioner counsel not applicable to the case on hand.
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10. In respect of the another contention raised by the learned counsel that there is no sanction obtained under Section 197 of Cr.P.C. for filing charge-sheet or taking cognizance. In support of his case, he has relied on S.Sudhakar Shetty s. State of Karnataka and another in Crl.P.No.3245/2024 dated 24.06.2024 wherein the said case where the alleged offence was 409, 477A of IPC where the said petitioner was Panchayat Development Officer and he has misappropriated the amount of Rs.11,85,570/- during discharge of his official duty. While discharging the official duty when any negligence on the part of the accused or any misappropriation where the work was entrusted to the petitioner for discharging the official duty, therefore the sanction under Section 197 Cr.P.C. is mandatory, on that ground, the criminal proceeding has been quashed by the Co-ordinate Bench. There is no second thought in respect of the law laid down by the Supreme Court which was relied by the Co-ordinate bench in the case of State of Punjab vs. Labh Singh -9- NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 (2014) 16 SCC 807 and Rakesh Kumar Mishra vs. State of Bihar and others (2006) 1 SCC 557.
11. However, this Court in a similar situation in the case of Dr.M.Basappa Reddy vs. State of Karnataka by SIT/Lokayukta in Writ Petition No.12915/2021 (GM-RES) Dated 25.10.2021, wherein the accused- petitioner was a Director of the Mines and Geology Department, was illegally sanctioned the license to the accused persons under the Mines and Minerals Act by creation of the documents falsely and forging the document and granted the license. Wherein the said case the said petitioner-Basappa Reddy was retired from the service in the year 2005 itself, where the prosecution was launched in the year 2017 by the Lokayukta in Crime No.3/2017 and charge-sheet came to be filed in the year 2021, where the petitioner-accused was challenged the charge-sheet on various ground, especially the sanction under Section 197 Cr.P.C. and the accused was retired from long back, about more than ten years back. This
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NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 Court by considering the arguments addressed by the counsels, who were appeared in the said case, and by relying upon the judgment of the Hon'ble Supreme Court wherein it has held in para-12, 13, 14 and 15 as under:
12. The Hon'ble Supreme Court in the case of N.K.Ganguly vs. CBI stated supra as held at paragraph Nos. 23, 24, 25 and 32 which are as under:
"23. Mr. Gopal Subramanium, the learned Senior Counsel on behalf of some of the appellants has further rightly placed reliance upon the judgment of a three-Judge Bench of this Court in Amrik Singh v. State of Pepsu to buttress the contention that the issue of requirement of prior sanction under Section 197 CrPC can be raised at any stage of the proceedings, and not just at the stage of framing of charges. The decision in Hori Ram Singh was also quoted with approval, especially the categorisation of situations in three scenarios, as under:
(Amrik Singh case, AIR p.311, para 6)
a) Decision which held that sanction was necessary when the act complained of attached to the official character of the person doing it;
b) Judgments which held that sanction was necessary in all cases in which the official character of the person gave him an opportunity for the commission of the crime; and
c) Those which held it was necessary when the offence was committed while
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NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 the accused was actually engaged in the performance of official duties.
It was further held in the Amrik Singh case that: (AIR p.312, para 8) "8.The result of the authorities may thus be summed up: it is not every offence committed by a public servant that requires sanction for prosecution under Section 197 CrPC; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of his directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of grant of sanction, which must precede the institution of the prosecution." (emphasis supplied)
24. The position of law, as laid down in Hori Ram Singh was also approved by the Privy Council in H.H.B. Gill v. R., wherein it was observed as under: (SCC OnLine PC) "... A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty."
25. Reliance was further rightly placed by the learned Senior Counsel on the decision of a Constitution Bench of this Court in Matajog Dobey v. H.C. Bhari, which pertained to an income tax investigation. It was alleged by the appellant therein that while conducting a
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NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 search, the officials of the Income Tax Department had forcibly broke open the entrance door of the house and interfered with the boxes and drawers of the tables. It was also alleged by the appellant therein that the officials tied him and beat him up. Upon an enquiry of the said complaint, the Magistrate came to the conclusion that a prima facie case had been made out and issued process. During the course of trial, the issue pertaining to want of sanction was urged. This Court held as under: (AIR p.48, para 15) "15.... Article 14 does not render Section 197 of the Criminal Procedure Code 'ultra vires' as the discrimination is based upon a rational classification.
Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard." (emphasis supplied) On the other hand, ordinary citizens not so engaged do not require this safeguard. It was further observed that: (AIR p.48, para
15) "15. ......Whether sanction is to be accorded or not is a matter for the government to consider. The absolute power to accord or withhold sanction on the Government is irrelevant and foreign to the duty cast on that court, which is the ascertainment of the true nature of the act."
The Court finally summed up the result of the discussion as follows: (AIR p.49, para 19)
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NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 "19. ...There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty." (emphasis supplied)
32. The learned Additional Solicitor General, on the other hand, appearing on behalf of CBI placed strong reliance on the decision of this Court in Prakash Singh Badal v. State of Punjab to buttress his contention that no sanction was required to be taken in the instant case as the appellants have entered into a criminal conspiracy, therefore, it cannot be said to be a part of their official duty as the public servants. The act of the appellants of transferring the plot in question in favour of the aforesaid Society, allotted in favour of ICMR for the purpose of construction of the flats and allotting the same in favour of the employees of ICPO-ICMR Society without obtaining the order from either CEO or Chairman of NOIDA with a motive to make wrongful gain for themselves after entering into a conspiracy cannot be said to be an act that has been carried out in discharge of their official duty. The learned Additional Solicitor General placed reliance on the following paragraphs of the Prakash Singh Badal case:(SCC pp.37-38, paras 49-50) "49. Great emphasis has been laid on certain decisions of this Court to show that even in relation to offences punishable under Sections 467 and 468 sanction is necessary. The foundation of the position has reference to some offences in Rakesh Kumar Mishra case. That decision has no relevance because ultimately this Court has held that the absence of search warrant was intricately (sic linked)
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NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 with the making of search and the allegations about alleged offences had their matrix on the absence of search warrant and other circumstances had a determinative role in the issue. A decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context.
50. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence."
13. In another judgment in the case of Devaraja vs. Owais Sabeer Hussain stated supra, the Hon'ble Supreme Court in the latest decision it has held at paragraph Nos.67, 68, 74, 75, 76 which are as under:
"67. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would
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NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be.
68. If in doing an official duty a policeman has acted in excess of 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.
74. It is well settled that an application under Section 482 of the Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court.
75. There is also no reason to suppose that sanction will be withheld in case of prosecution, where there is substance in a complaint and in any case if, in such a case, sanction is refused, the aggrieved complainant can take recourse to law. At the cost of repetition it is reiterated that the records of the instant case clearly reveal that the complainant alleged of police excesses while the respondent was in custody, in the course of investigation in connection with Crime
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NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 No.12/2012. Patently the complaint pertains to an act under colour of duty.
76. Significantly, the High Court has by its judgment and order observed:
(H.Siddappa case, SCC OnLine Kar para 5)
5. ... it is well-recognized principle of law that sanction is a legal requirement which empowers the Court to take cognizance so far as the public servant is concerned. If at all the sanction is absolute requirement, if takes cognizance it becomes illegal, therefore, an order to overcome any illegality the duty of the Magistrate is that even at any subsequent stages if the sanction is raised it is the duty of the Magistrate to consider".
14. In another judgment in the case of R. Balakrishna Pillai, the Hon'ble Supreme Court has held at paragraph No.6 which is as under:
"6. The next question is whether the offence alleged against the appellant can be said to have been committed by him while acting or purporting to act in the discharge of his official duty. It was contended by the learned counsel for the State that the charge of conspiracy would not attract Section 197 of the Code for the simple reason that it is no part of the duty of a Minister while discharging his official duties to enter into a criminal conspiracy. In support of his contention, he placed strong reliance on the decision of this Court in Harihar Prasad vs. The State of Bihar. He drew our attention to the observations in paragraph 74 of the judgment where the Court, while considering the question whether the acts complained of were directly concerned with the official duties of the public servants concerned, observed that it was no
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NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 duty of a public servant to enter into a criminal conspiracy and hence want of sanction under Section 197 of the Code was no bar to the prosecution. The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the public servant concerned would depend on the facts of each case. There can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant in or out of office the bar of Section 197(1) of the Code would have no application.
Such a view would render Section 197(1) of the Code specious. Therefore, the question would have to be examined in the facts of each case. The observations were made by the Court in the special facts of that case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted. It must also be remembered that the said decision was rendered keeping in view Section 197(1), as it then stood, but we do not base our decision on that distinction. Our attention was next invited to a three-Judge decision in B. Saha & Ors. vs. M.S. Kochar. The relevant observations relied upon are to be found in paragraph 17 of the judgment. It is pointed out that the words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed Section 197(1) of the code, are capable of both a narrow and a wide interpretation but their Lordships pointed out that if they were construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and
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NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 never can be". At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed. The right approach, it was pointed out, was to see that the meaning of this expression lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important, and if it falls within the scope of the afore-quoted words, the protection of Section 197 will have to be extended to the concerned public servant."
15. In another judgment in the case of State of Kerala vs. V. Padmanabhan Nair, the Hon'ble Supreme Court has held at paragraph Nos.6, 7 and 8 which are as under:
"6. The correct legal position, therefore, is that an accused facing prosecution for offences under the PC Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. So the High Court was at any rate wrong in quashing the prosecution proceedings insofar as they related to offences under the PC Act.
7. That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B of IPC sanction under Section 197 of the Code is a
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NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 condition precedent for launching the prosecution is equally fallacious. This Court has stated that correct legal position in Shreekantiah Ramayya Munnipalli v. State of Bombay and also a Amrik Singh v. State of Pepsu that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad as follows: (SCC p.115, para 66) "As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409, Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."
8. Learned Single Judge of the High Court declined to follow the aforesaid legal position in the present case on the sole premise that the offence under Section 406 of IPC has also been fastened against the accused besides Section 409 of IPC. We are unable to discern the rationale in the distinguishment. Sections 406 and 409 of IPC are cognate offences in which the common component is criminal breach of trust. When the offender in the offence under Section 406
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NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 is a public servant (or holding any one of the positions listed in the section) the offence would escalate to Section 409 of the Penal Code. When this Court held that in regard to the offence under Section 409 of IPC read with Section 120-B it is no part of the duty of the public servant to enter into a criminal conspiracy for committing breach of trust, we find no sense in stating that if the offence is under Section 406 read with Section 120- B IPC it would make all the difference vis-à-vis Section 197 of the Code."
12. On careful reading of the paragraphs of the judgment, this Court relied upon the judgment of State of Kerala vs. Padmanabhan Nair at para 7 it was held that the contention of the respondent that for the offences under Sections 406 and 409 read with Section 120-B of IPC and by relying upon the judgment of Padmanabhan Nair and R.Balakirishna Pillai, wherein this Court has held at para-16, the sanction is required if the offences committed in the course of the same transaction in which official duty is performed or perpetuated to be performed as it is every offence committed by public servant while engaging in the performance of his official duty which is entitled for protection. If the act is not comes under the
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NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 performing the official duty, the protection under Section 197 is not available and based upon the judgment of the Hon'ble Supreme Court, this Court dismissed the writ petition filed by the accused and subsequently the said accused challenged the same before the Hon'ble Supreme Court wherein the Hon'ble Supreme Court dismissed the SLP and confirmed the order of this Court.
13. Such being the case, I am of the view, in this case though the petitioner was retired in the year 2015, but the criminal prosecution is launched in 2017 for collusion, creating the false document and forging the document and granting the land of the Government to the accused Nos.2 and 3 more than 7 acres. Even in 214 (2)(b), 214(3) of the KCSR which are reveal only judicial proceedings cannot be initiated for purpose of recovery or initiating departmental enquiry or taking any action under the department level, whereas nowhere it is stated no criminal prosecution shall be initiated against the accused for having committed the offence that too 468, 471, 420,
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NC: 2024:KHC-K:7302 CRL.P No. 200578 of 2024 465 in collusion with the other accused. Therefore, the petition is devoid of merits and liable to be dismissed.
14. Accordingly, the petition is dismissed.
Sd/-
(K NATARAJAN) JUDGE SDU LIST NO.: 1 SL NO.: 1 CT:SI