Karnataka High Court
Mrs. Pradnya W/O Pradeep Patil @ ... vs Sri. Prashant S/O Subhash Kamat on 15 December, 2018
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
1
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL REVISION PETITION NO.100207 OF 2017
BETWEEN:
MRS. PRADNYA
W/O PRADEEP PATIL @ BHUYEKAR,
AGE: 30 YEARS,
OCC: AGRICULTURE,
R/O: TORAN NAGAR,
DATTA COLONY, KOLHAPUR,
MAHARASHTRA STATE. ... PETITIONER
[BY SRI. SRINAND A PACHHAPURE, ADVOCATE]
AND:
1. SRI. PRASHANT S/O SUBHASH KAMAT,
AGE: 29 YEARS, OCC: SERVICE,
R/O: #3363, GONDHALI GALLI,
BELAGAVI.
2. SMT. SMITA W/O SUBHASH KAMAT,
AGE: 63 YEARS,
OCC: HOUSEHOLD WORK,
R/O: #3363, GONDHALI GALLI,
BELAGAVI.
3. SRI. BHIMGOUDA
S/O BASANAGOUDA POLICE PATIL,
AGE: MAJOR, OCC: BUSINESS,
R/O: POLICE QUARTERS,
BEHIND LINGARAJ COLLEGE,
BELAGAVI.
2
4. SRI. M.S. PATIL,
AGE: MAJOR, OCC: SURVEYOR,
R/O: OFFICE OF THE ADLR,
BELAGAVI.
5. SRI. I.D. PATIL,
AGE: MAJOR, OCC: SURVEYOR,
R/O: OFFICE OF THE ADLR,
BELAGAVI. ... RESPONDENTS
[BY SRI. K ANANDKUMAR, ADVOCATE FOR R1;
SRI. B. ANANDSHETTY, ADVOCATE FOR R2;
SRI. NEELENDRA D. GUNDE, ADVOCATE FOR R4;
SRI. VITTHAL S. TELI, ADVOCATE FOR R5;
R3 - SERVED]
***
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C., PRAYING TO SET
ASIDE THE ORDER DATED 21.06.2017 PASSED BY THE COURT
OF JMFC-II, BELAGAVI IN PRIVATE COMPLAINT NO.NIL/2017
MARKED AT ANNEXURE-A, FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 463, 464, 465, 470, 471 R/W. SECTION 34
OF IPC.
THIS PETITION COMING ON FOR 'DICTATING ORDERS'
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This Revision Petition is filed by the complainant in PCR No.NIL/2017 dated 21.06.2017 on the file of the Court of J.M.F.C. - II, Belagavi at Belagavi, questioning the correctness and 3 legality of the order dated 21.06.2017, whereby the learned Magistrate returned the complaint to the complainant with a direction to re-present the same after obtaining sanction, in order to proceed against accused Nos.4 and 5.
2. I have heard the learned counsel for the petitioner and the learned counsels appearing for the respondent Nos.1,2,4 and 5. Respondent No.3, though served is unrepresented.
3. The brief facts leading to the filing of this Revision Petition are that the petitioner/complainant presented a complaint under Section 200 of Cr.P.C. against the accused / respondents alleging offences punishable under Sections 463, 464, 465, 470 and 471 read with Section 34 of I.P.C. It is alleged therein that the complainant is the absolute owner of property bearing R.S. No.180/1 by virtue of a registered sale deed dated 16.09.2013. Accused No.2 4 executed consent deed dated 10.11.2014 in favour of the complainant duly registered before the Sub- Registrar, Belagavi, thereby admitting the execution and attestation of the sale deed and also admitting the absolute title of the complainant over the property. However, accused Nos.1 and 2 started making false attempts to claim over the same and along with their henchmen are trying to make forcible entry to the property of the complainant. Further that, accused Nos.1 and 2 in collusion with accused Nos.3 to 5 had fraudulently obtained 11-E sketch relating to property bearing R.S. No.180/1 measuring 2 acres 21 guntas situated at Belagavi from the office of A.D.L.R. Belagavi. The complainant applied for the certified copies of all the documents relating to 11-E sketch and she was shocked to find that her signatures were forged on all the said documents. Accused Nos.1 to 3 in collusion with each other have created 5 documents styled as mutual partition deed dated 17.01.2017 showing that one portion has been allotted to the complainant and the other is allotted to accused No.2, though the complainant has never executed the said document. Further, though the complainant had never appeared before accused Nos.4 and 5 and never signed any document and not given any statement before them, however, perusal of the certified copy of the statement dated 26.01.2017 shows that the complainant appeared before accused No.5 and gave a statement. The nature of the document i.e., Notice in Form No. 11-C, Hissa Form No.4, 11-E sketch and statement clearly discloses that accused Nos.1 to 3 have created and fabricated the said documents in active collusion with accused Nos.4 and 5 and hence the accused persons joining hands in glove with each other with an intention to cheat her and to make a false claim over her absolute property have created 6 documents forging her signatures, and therefore, the accused are liable to be prosecuted for the offences punishable under Sections 463, 464, 465, 470, 471 read with Section 34 of I.P.C.
4. On presentation of the aforesaid complaint, the learned Magistrate after observing that accused Nos.4 and 5 are the public servants and before proceeding against them, it requires sanction and further observing that accused Nos.4 and 5 are the Surveyors and in order to proceed against them the complainant has not obtained sanction from the Government and accordingly placing reliance on a decision of this Court reported in 2013 (5) Kar.L.J. 325 in the case of M.K. Aiyappa v. State by Lokayukta Police, Bangalore, passed an order directing the complainant to obtain sanction from the Government in order to proceed with the matter 7 against accused Nos.4 and 5 and returned the complaint to the complainant.
5. It is the contention of the learned counsel Mr.Srinand A.Pachapure appearing for the petitioner/complainant that the decision reported in the case of M.K. Aiyappa (supra) is not applicable to the case on hand. He submits that the complaint is not filed alleging offences under the Prevention of Corruption Act, and therefore, at the time of filing complaint before the Magistrate under Section 200 of Cr.P.C. there is no such requirement to obtain any sanction from the competent authority. He submits that the offences committed as alleged in the complaint by accused Nos.4 and 5 cannot be said to be done under the colour of their duty, and therefore, submits that no sanction is necessary even under Section 197 of Cr.P.C. at the time of filing the complaint. He further submits that even otherwise the Magistrate 8 has committed a grave error in returning the complaint as against all the accused persons though accused Nos.1 to 3 are not the public servants and accordingly he seeks to allow the petition.
6. In support of the contentions raised by the learned counsel for the petitioner he has placed reliance on the following judgments :
i. (2007)1 SCC 1 [Parkash Singh Badal and Another v. State of Punjab and Others] ii. (2009)6 SCC 372 [State of Uttar Pradesh v. Paras Nath Singh] iii. (2013)10 SCC 705 [Anil Kumar and Others v. M.K. Aiyappa and Another] iv. 2018 (5) SCC 557 [Manju Surana v.
Sunil Arora and Others]
7. Per contra, the learned counsels appearing for respondent Nos.1 2, 4 and 5 contended that there is no truth in the allegations made in the complaint and the complaint is filed 9 on account of a civil dispute pending between the complainant and respondent Nos.1 to 3. It is submitted that admittedly respondent Nos.4 and 5 are public servants, namely, accused No.4 is working as case worker and accused No.5 is working as a Surveyor in the Office of A.D.L.R., Belagavi. It is false to allege that they have colluded with the complainant, and therefore, even if any act is committed by the said accused, that cannot be said to be in collusion with the complainant and on the other hand, they have discharged their duty as public servants, and therefore, sanction is necessary under law. They submit that there is no illegality committed in the order passed by the learned Magistrate and accordingly seeks to dismiss the Revision Petition.
8. In support of the contention, the learned counsels appearing for the respondents placed reliance on the following judgments: 10
i. AIR 1956 SC 44 [Matajog Dobey v. H.C. Bhari] ii. (2006)1 SCC (Cri) 432 [Rakesh Kumar Mishra v. State of Bihar and Others] iii. (2006)2 SCC (Cri) 358 [Sankaran Moitra v. Sadhna Das and Another] iv. 2013(5) KLJ 325 [M.K. Aiyappa v. State by Lokayukta Police, Bangalore and Others] v. (2015)1 SCC 513 [Rajib Ranjan and Others v. R. Vijaykumar] vi. 2015(2) G.L.H. 359 [D.T.Virupakshappa v. C. Subash] vii. (2016)1 SCC 348 [International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and Others] viii. (2016)1 SCC 594 [Manorama Tiwari and Others v. Surendra Nath Rai] ix. Unreported decision in Crl.P. Nos.200161 and 200091 of 2018 decided on 25.07.2018 [Santosh Vyankatesh Kshirasagar and Others v. State of Karnataka and Others]
9. On perusal of the reasons assigned by the learned Magistrate in the impugned order, it is seen that, the learned Magistrate after observing 11 that accused Nos.4 and 5 are public servants and therefore holding that, in order to proceed against them sanction is necessary, returned the complaint directing the complainant to obtain necessary sanction as against accused Nos.4 and
5. The learned Magistrate has come to the said conclusion on the basis of the decision rendered in the case of M.K. Aiyappa Vs State by Lokayukta Police, Bangalore and others (supra), wherein it is held that in a case of complaint against a public servant there is no short cut method in law, the complainant must first seek sanction from the Government before lodging a private complaint against the public servant.
10. In M.K. Aiyappa's case (Supra) the offences alleged against the public servant was under Sections 8, 13(1)(c), 13(1)(d), 13(1)(e) and 13(2) and 12 of the Prevention of Corruption Act, 1988 (for short, 'P.C. Act') along with other 12 Sections under I.P.C. i.e; under Sections 406, 409, 420, 426, 463, 465, 468, 471 and 474 read with Section 120-B and 149 of I.P.C.
11. In the case referred supra, the learned Magistrate referred the matter for investigation under Section 156(3) of Cr.P.C. This Court held that the requirement of a sanction order cannot be dispensed with even in respect of a private complaint filed by a person against a public servant, alleging offences punishable under P.C. Act said to have been committed while discharging duties as a public servant.
12. It is relevant to state that a challenge was made to the decision rendered by this Court in the case of M.K. Aiyappa (supra) before the Hon'ble Supreme Court and the Hon'ble Supreme Court in a judgment rendered in 'Anil Kumar - Vs- Aiyappa' reported in (2013)10 SCC 705 held that sanction under Section 19(1) of the P.C. 13 Act is a pre-condition for ordering investigation against a public servant even at a pre-cognizance stage and held that such reference is not valid and the investigation under Section 156(3) of Cr.P.C. cannot be ordered without previous sanction under Section 19(1) of P.C. Act.
13. The learned counsel appearing for the respondents placing reliance on the decision rendered by the Hon'ble Supreme Court in the case of Matajog Dobey v. H.C. Bhari reported in AIR 1956 SC 44 would contend that there should be safeguard for the public servants from harassment during discharge of their duties and without previous sanction cognizance cannot be taken in view of Section 197 of Cr.P.C. and he submits that in the present case accused Nos.4 and 5 were admittedly public servants, hence, sanction was necessary as rightly observed by the learned Magistrate since even assuming that they 14 have committed some act but the same was while discharging their official duty.
14. However, the above decision relied upon by the learned counsel may not be applicable to the present case since the facts of the said case are entirely different. Even otherwise the Hon'ble Apex Court at para 17 of the said decision has observed as under :
"17. S lightly diffe ring tests have bee n laid do wn in the decided cases to ascertain the scope and the meaning of the rele vant words occurring in section 197 o f the Code;
"any offence allege d to have been
committe d by him while acting or
purporting to act in the discharge of his official duty". But the difference is only in language and no t in substance .
The offence alle ged to have been committe d must have so mething to do, o r must be re lated in some manner, with the discharge o f o fficial duty.15
No question of sanction can arise unde r section 197, unless the act complained of is an offence; the only po int to de termine is whethe r it was co mmitte d in the discharge of official duty. There must be a reasonable co nnection be tween the act and the official duty. It does not matte r even if the act e xceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a late r stage when the trial proceeds on the merits. What we must find out is whe the r the act and the official duty are so inte r-re lated that one can postulate reasonably that it was do ne by the accused in the perfo rmance of the official duty, though possibly in e xce ss of the needs and require ments o f the situatio n.
In Hori Ram S ingh v. The Crown [1939] S.C.R. 159, Sulaiman, J . obse rves:
"The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, tho ugh in excess of the duty or unde r a mistaken be lie f as to the existence of such duty. Nor is it necessary to go to the length of saying that the act 16 constituting the offe nce should be so inseparably co nne cted with the o fficial duty as to fo rm part and parce l o f the same transactio n".
15. In the case of International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and Others v. Nimra Cerglass Technics Private Limited and Another reported in (2016)1 SCC 348, it is a case wherein initially Investigating Officer submitted a final report stating that the dispute is purely of civil in nature and no offence was made out and on Protest Petition filed by the complainant, Magistrate took cognizance for the offences punishable under Sections 419 and 420 read with Section 34 of I.P.C. and aggrieved by the summons issued, the accused therein challenged the same under Section 482 of Cr.P.C. and dismissal of the said petition was challenged before the Hon'ble Apex Court. The Hon'ble Apex 17 Court after considering the role of the accused therein held that they were acting in their official capacity and they neither acted in their personal capacity and accordingly held that previous sanction as mandated under Section 197 of Cr.P.C. must have been obtained before proceeding against them as the act was only in discharge of their official duties. Such order was on the basis of the averments made in the complaint and further holding that the essential ingredients of dishonest intention was not made out.
16. The Hon'ble Supreme Court in the case of D.T. Virupakshappa v. C. Subash reported in 2015(12) SCC 231 while examining the action of the trial Court taking cognizance of the alleged offence on a private complaint filed against the public servants without sanction from the State Government, held that, on facts the whole allegations and acts committed by the public 18 servants who are the police officials, reasonably connected with the performance of official duty. Therefore, held that the Magistrate could not have taken cognizance of the case without the previous sanction of the State Government. The decision rendered in the case of Om Prakash and others v. State of Jharkhand reported in (2012) 12 SCC 72, wherein para 41 of the said judgment was quoted which is as under :
" 41. The upshot of this discussion is that whether sanction is necessary or not has to be decide d from stage to stage . This question may arise at any stage of the proceeding. I n a given case, it may arise at the inceptio n. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the Po lice Office r or public servant was acting in perfo rmance o f his o fficial duty and is entitle d to protection given under Section 197 of the Code . It is not possible for us to ho ld that in such a case, the Court canno t look into any documents produced by the accused or the public servant concerne d at the inceptio n. The nature of the co mplaint may have to be ke pt in mind. It must be re membe red that previous sanction is a precondition for taking cognizance of the offence and, the refore , there is no re quirement that the accused 19 must wait till the charges are framed to raise this plea..."
Further, at para 7 of the judgment, the Hon'ble Apex Court also referred to para 7 of the decision rendered in the case of State of Orissa Through Kumar Raghvendra Singh and others v. Ganesh Chandra Jew, reported in (2004)8 SCC 40 which reads as under :
"7. The pro tection given under Section 197 is to protect respo nsible public servants against the institution o f possibly vexatio us criminal procee dings fo r o ffences alle ged to have been committe d by them while the y are acting or purpo rting to act as public servants. The po licy of the le gislature is to affo rd ade quate protectio n to public servants to ensure that they are not prosecuted fo r anything done by them in the discharge of the ir official dutie s without reasonable cause, and if sanctio n is granted, to confe r on the Gove rnment, if they choose to exercise it, co mple te contro l of the prosecution. This protection has certain limits and is available only whe n the allege d act do ne by the public servant is reasonably connected with the discharge of his official duty and is no t mere ly a clo ak for do ing the obje ctionable act. If in doing his official duty , he acted in excess of his duty, but there is a r eas onable connection between the act and the performance of the off icial du ty, the excess will not be a sufficient ground 20 to deprive the public serv ant of the protection . The question is not as to the nature of the o ffe nce such as whe ther the alle ged o ffe nce containe d an e lement necessarily depe ndent upon the offender be ing a public se rvant, but whether it was committe d by a public se rvant acting or purporting to act as such in the discharge of his o fficial capacity. Befo re Sectio n 197 can be invoke d, it must be shown that the official conce rne d was accused of an offence alle ged to have been co mmitted by him while acting o r purporting to act in the discharge of his official duties. It is not the duty which requires examinatio n so much as the act, be cause the official act can be perfo rme d both in the discharge of the official duty as well as in de re lictio n of it. The act must fall within the sco pe and range of the official duties of the public servant co ncerne d. It is the quality of the act which is important and the prote ction o f this Section is available if the act falls within the sco pe and range of his official duty."
(Emphasis supplie d)
17. At para 8 of D.T.Virupakshappa's case (Supra) para 32 of the judgment in the case of Om Prakash (Supra) is referred, which reads as under:
"32. The true te st as to whether a public se rvant was acting or purpo rting to act in discharge of his duties would be whethe r the act complained o f was directly 21 connecte d with his official duties o r it was done in the discharge of his official duties or it was so inte grally connecte d with or attache d to his o ffice as to be inse parable from it (K . Satwant S ingh) . The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by th e public servant is reasonably connected with the disch arge of his off icial duty and is not merely a cloak for doing the objection able act. If in doin g his official duty, he acted in excess of his duty, but there is a reas onable connection between the act and the performance of the off icial du ty, the excess will not be a sufficient ground to deprive the public serv ant of the protection (Gane sh Chandra Jew). If the above tests are applied to the facts of the present case, the po lice must get protectio n given unde r Section 197 of the Code because the acts co mplained o f are so inte grally connected with or attached to the ir o ffice as to be inseparable from it. It is not possible for us to co me to a conclusion that the protectio n granted unde r Section 197 of the Code is used by the Po lice pe rsonnel in this case as a clo ak for killing the dece ased in co ld bloo d."
( Emphasis supplied)
18. In the case of Rakesh Kumar Mishra v. State of Bihar and Others reported in (2006)1 SCC (Cri) 432, while reinstituting the applicability of Section 197 of Cr.P.C. it was held that the 22 protection given to public servants under Section 197 of Cr.P.C. is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act and therefore the concept of Section 197 of Cr.P.C. does not get immediately attracted on institution of the complaint case. Considering the facts of the said case, it was held that even if the public servant acted in excess of his duty, if there exists the said reasonable connection, the excess will not deprive him of the protection. Further that the Court cannot take cognizance of the complaint against public servant in respect of an offence alleged to have been committed in discharge of official duty unless sanction is obtained from the appropriate authority. However, the concept of Section 197 of Cr.P.C. does not get immediately attracted on institution of the complaint case. On the other 23 hand, it has to be seen as to whether there is a reasonable connection between the act done and the official duty.
19. In the case of Sankaran Moitra v.
Sadhna Das and Another reported in (2006)2 SCC (Cri) 358, the Hon'ble Supreme Court held that though the question regarding sanction may arise necessarily not at the inception, but even under subsequent stage. However, the prosecution hit by that provision cannot be launched without the contemplated sanction. In the facts of the said case, it was held that such sanction was necessary.
20. In the case of Rajib Ranjan and Others v. R. Vijaykumar reported in (2015)1 SCC 513, it was held that such sanction is necessary if the offence alleged against the public servant is committed while acting or purporting to act in the discharge of his official duties. It was held therein 24 that even while discharging his official duties if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of Cr.P.C. will not be attracted. Para 16 of the aforesaid judgment reads as under:
"16. This principle was e xplained in some more detail in Raghunath Anant Govilkar v. State of Maharashtra, which was decide d by this Court on 08.02.2008 in SLP (Crl.) No.5453 of 2007, in the fo llowing manner:
"11. '7 .... "66.... On the question of the applicability o f Sectio n 197 of the Code of Criminal Proce dure , the principle laid down in two case s, name ly, Shree kantiah Ramayya Munipalli v. State o f Bo mbay and Amrik S ingh v. State of Pe psu was as fo llo ws: ( para 8) '8. It is no t every offence committe d, by a public se rvant that requires sanction for prose cutio n under Se ction 197 ( 1) o f the Criminal Procedure Code; nor e ven every act done by him while he is actually engaged in the perfo rmance o f his official duties; but if the act complaine d of is directly concerne d with his official duties so 25 that, if questio ned, it co uld be claimed to have been done by virtue of the office , the n sanction would be necessary...' The real question there fore , is whether the acts complained of in the present case were directly co ncerne d with the official duties o f the three public servants. As far as the offence of criminal conspiracy punishable unde r Sectio ns 120-B read with Sectio n 409 of the Penal Co de is concerned and also Section 5( 2) of the Pre vention of Corruption Act, are concerned the y cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Proce dure . To put it shortly, it is no part o f the duty of a public servant, while discharging his o fficial duties, to e nter into a criminal conspiracy or to indulge in criminal misconduct. Want o f sanction unde r Sectio n 197 of the Co de of Criminal Proce dure is, the refore , no bar."
21. In the case of Manorama Tiwari and Others v. Surendra Nath Rai reported in (2016)1 SCC 594 , the Hon'ble Apex Court considering the role of the accused who were Medical Officers in Government hospital against whom a complaint was filed alleging negligence on the part of the accused in causing the death while conducting surgery, the Hon'ble Apex Court 26 considering the facts of the said case held that it is a clear case where appellants were discharging their public duties, and therefore, criminal prosecution was not maintainable without sanction from the State Government.
22. This Court in the case of Santosh Vyankatesh Kshirasagar and Others v. State of Karnataka and Others in Crl. P. Nos.200161 and 200091 of 2018 dated 25.07.2018 at paras 14 and 15 has held as under:
"14. Section 197 o f Cr.P.C., of course, mandates obtaining of sanctio n from the compete nt autho rity, befo re the Magistrate or any Co urt takes cognizance of any offence o f a public servant. Section 197 says that, in case of a pe rson who is emplo yed by the State Go vernment in connection with the affairs of the State , in such an e ventuality, no Co urt shall take cognizance o f the case, the offence alle ged to have been committed by any such person while discharging his dutie s as public servant witho ut there be ing a sanction from the competent authority. The refo re, it is a clear mandate o f the above said pro visions.
15. This Court should not be misunde rstoo d that, any of the case s unde r Section 304-A of IPC o f the case where a 27 public servant are invo lved, the sanction is an abso lute re quirement. The Magistrate or the Co urt e ven afte r taking co gnizance also , it can loo k into whe the r sanction is require d in such a case to prosecute the accused, or no t by applying the specific provisions, the Court has to draw an infe rence on the mate rial on record, that the accused is a public servant and while discharging his duties as a public servant he has co mmitted the offence and the said act o r the o ffence is re ferable to his discharge of duties. Eventually, the sanction o rde r ne ed not be insiste d, if the offence alleged is nowhere co nnected with the discharge o f the duties as public servant, the n on the basis of factual aspects of the case, the Co urt can take appropriate decision, whethe r the sanction is require d in such a case or not."
23. Learned counsel for the petitioner contends placing reliance on the decision in Prakash Singh Badal vs. State of Punjab reported in (2007) 1 SCC 1 wherein at para 38, the Hon'ble Apex Court held that the question relating to the need of sanction under Section 197 of the code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may 28 arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.
24. It is relevant to note that the Hon'ble Apex Court in the case of MANJU SURANA v. SUNIL ARORA AND ORS . reported in 2018 V SCC 557 , while considering the alleged offences punishable under Sections 7 and 13 of the Prevention of Corruption Act, 1988 and Sections 120B, 420, 467, 468 and 471 of Indian Penal code wherein the special Judge closed a complaint on account of the fact that respondents were not either public servants or have remained as public servants and no prior sanction had been granted by the competent authority and while considering the question as to whether prior sanction for prosecution qua allegation of corruption in respect of public servants was required before setting in 29 motion investigative process, has held at para 34 as under:
" 34. The catena of judgments on the issue as to the sco pe and powe r of direction by a Magistrate unde r Chapters 12 and 14 is well established. Thus, the questio n would be whether in cases of the P.C. Act, a differe nt import has to be read qua the power to be exercised unde r Section 156(3) of the co de of Criminal Proce dure, i.e., can it be said that on account of Sectio n 19( 1) of the P.C. Act, the scope of inquiry under Section 156( 3) of the code of Criminal Proce dure can be said to be one o f taking 'cognizance' the reby re quiring the prio r sanction in case o f a public servant? I t is trite to say that prior sanctio n to prosecute a public se rvant for offences under the P.C. Act is a pro vision contained unde r Chapter 14 of the Code of Criminal Procedure . Thus, whether such a purport can be importe d into Chapte r 12 of the code of Criminal Procedure while directing an investigation under Section 156(3) of the Coe of Criminal Procedure, mere ly because a public se rvant would be involved, wo uld beg an answer."30
Even in the said case, the Special Judge closed the complaint on the ground that no prior sanction was granted by the competent Authority under Section 19 of the P.C. Act read with Section 197 of the Code of Criminal Procedure by placing reliance on the judgment rendered in Anil Kumar v Aiyappa (Supra) . The Hon'ble Supreme Court considering the controversy, observed that the matter requires to be settled by a lager bench and accordingly, the matter was referred to a larger Bench.
25. In the instant case, admittedly, though accused Nos.4 and 5 are working as public servants, however, the offences alleged is not under the Prevention of Corruption Act. On the other hand it was only under the provisions of IPC. However, the learned Magistrate placing reliance on the decision of this Court in M.K. Ayyapa v. State by Lokayukta Police (Supra) wherein this Court has observed that the requirement of 31 sanction order cannot be dispensed with even in respect of a private complaint filed by a private person against a public servant, directed the complainant to obtain sanction from the Government in order to proceed against accused Nos.4 and 5 and thereafter to re-present the complaint after obtaining sanction.
26. As noted in the decision relied upon by the learned Magistrate, it was held that the requirement of sanction order cannot be dispensed with even in respect of a private complaint filed by a person against a public servant alleging offences punishable under the Prevention of Corruption Act stated to have been committed while discharging the duties as a public servant. The question as to whether sanction is necessary in such an event before referring the matter for investigation under Section 156(3) of the Cr.P.C has been now 32 referred to a larger bench by the Hon'ble Apex Court.
27. However, in the instant case, the complaint allegations are only in respect of the offences under IPC. The question is as to whether sanction was necessary under Section 197 of the code at the time of presentation of complaint against a public servant.
Section 197(1) of Cr.P.C. reads as under:
" 197. Prosecution o f Judges and public servants.- (1) When any pe rson who is or was a Judge or Magistrate or a public se rvant not removable from his office save by o r with the sanction of the Government is accused of any offence alleged to have been com mitted by him while acting or purpo rting to act in the discharge of his official duty, no Court shall take cognizance o f such o ffe nce except with the pre vious sanction."
28. The provisions under Section 197 of Cr.P.C. makes it clear that if any offence is alleged 33 to have been committed by a public servant, they cannot be removed from the office except by an order with the sanction of the Government, the Court is precluded from taking cognizance of such offence except with the previous sanction of the competent authority.
29. In State of Uttar Pradesh v. Par as Nath Singh reported in ( 2009) 6 Supr eme Court Cases 372 , the Hob'e Apex Court in paragraph 6 at page 377 has observed as under:
" 21. That apart, the contention of the respondent that for offences unde r Sections 406 and 409 re d with Section 120-B IPC sanction under Se ction 197 of the Code is a conditio n prece dent for launching the prosecutio n is equally fallacio us. This Co urt has stated the le gal position in Shreekantiah Ramayya Munipalli v. S tate o f Bo mbay and also in amrik S ingh v. State o f Pe psu that it is not eve ry o ffe nce committed by a public servant which requires sanctio n for prosecutio nunder Section 197 o f the code, nor even every act done by him while he is 34 actually engage d in the performance of his official duties. Following the above legal position it was he ld in Harihar Prasad v. State of Bihar as fo llows:
"66. ... As far as the offence of criminal co nspiracy punishable under Section 120-B, read with Section 409 of the Pe nal code is concerne d and also Section 5( 2) of the Preventio n of Corruption Act is conce rne d, they canno t be said to be of the nature mentione d in Section 197 o f the Code of Criminal Procedure . To put it shortly, it is no part of the duty of a public se rvant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in crim inal misconduct. Want o f sanction under Section 197 of the Code of Criminal Proce dure , is the refore , no bar."
22. Above views are re iterate d in S tate o f Kerala v. B. Padmanabhan Nair. Both amrik Singh and s.R. Munipalli were no ted in that case. Sections 467, 468 and 471 I PC re late to forge ry of valuable security, will, etc; forgery for the purpose of che ating and using as genuine a fo rge d document respectively. It is 35 no part of the duty of a public servant while discharging his official duties to commit forge ry o f the type covere d by the aforesaid offence s. Want o f sanctio n under S ection 197 of the Code , is the refore no bar."
30. In view of the above pronouncements of the Hon'ble Apex Court, the order passed by the learned Magistrate returning the complaint with a direction to obtain sanction from the Government in order to proceed against accused Nos.4 and 5 placing reliance on the decisions reported in M.K. Aiyappa's (Supra) case cannot be said to be legal and proper. The learned Magistrate has not considered as to whether or not the act committed by accused Nos.4 and 5 was in the course of and while discharging their official duty and therefore whether sanction was necessary under Section 197 of Cr.P.C. Even otherwise, admittedly, accused Nos.1 to 3 are not the public servants. However, there is no reason as to why the complaint was not entertained and as to why the complaint was 36 returned insofar as the other accused are concerned. In the above background and in view of the discussions made as above, I am of the view that the impugned order passed by the learned Magistrate is not sustainable in the eye of law. Accordingly, I pass the following order:
The Criminal Revision Petition is allowed.
The Order dated 21.06.2017 passed by the Court of JMFC II, Belagavi, in PCR No. Nil of 2017 is hereby set aside. The matter is remanded back to the Court below for considering the complaint afresh. The Court below shall proceed in accordance with law after restoring the complaint on its file.
Sd/-
JUDGE Hnm & kmv