Karnataka High Court
Smt Susheela Nanjappa vs Dr Ayi Vaman Narashinh Acharya on 16 December, 2020
Crl.R.P.No.950/2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER 2020
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL REVISION PETITION No.950/2017
BETWEEN:
1. SMT.SUSHEELA NANJAPPA
W/O LATE G.NANJAPPA,
AGED ABOUT 67 YEARS
2. SMT.SUNITHA DEVI K N
W/O M N LAKSHMINARAYAN
D/O LATE G NANJAPPA
AGED ABOUT 50 YEARS
3. SRI BABU PRASAD K N
S/O LATE G NANJAPPA
AGED ABOUT 48 YEARS
4. SRI.MOHAN PRASAD K N
S/O LATE G NANJAPPA
AGED ABOUT 46 YEARS
ALL ARE R/AT NO.1283, 23RD MAIN
24TH CROSS, BSK II STAGE
BENGALURU - 560 070 ... PETITIONERS
(BY SRI.RAMESHCHANDRA, ADV.)
AND:
DR.AYI VAMAN NARASHINH ACHARYA
AGED ABOUT 64 YEARS,
S/O AYI NARASHINH ACHARYA
CHAIRMAN,
KARNATAKA STATE POLLUTION,
CONTROL BOARD, NO.49, 'PARISARA' BHAVAN,
CHURCH STREET,
Crl.R.P.No.950/2017
2
BANGALORE - 560 001
RESIDING AT:
NO.89, 6TH MAIN, III STAGE,
IV BLOCK, BASAVESHWARA NAGAR,
BANGALORE - 560 079 ... RESPONDENT
(BY SRI.VIKRAM PHADKE, ADVOCATE FOR
SRI.N.G.PHADKE, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C. PRAYING TO SET ASIDE THE
ORDER DATED 15.06.2017 IN SPL.C.C.438/2014 PASSED BY
THE LXXVI ADDITIONAL CITY CIVIL AND SESSIONS AND
SPECIAL JUDGE, BENGALURU (MAYO HALL UNIT) CCH - 77.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT THROUGH PHYSICAL
HEARING MADE THE FOLLOWING:
ORDER
Aggrieved by the order of the LXXVI Additional City Civil & Sessions Judge & Special Judge, Bengaluru (CCH-77) in Spl.C.C.No.438/2014 discharging the respondent/accused of the offences punishable under Section 13(1)(d)(iii) and 13(2) of the Prevention of Corruption Act, 1988 ('the PC Act' for short), the legal representatives of the complainant have preferred the above revision petition.
2. The Karnataka State Pollution Control Board ('the Board' for short) was the authority to issue Crl.R.P.No.950/2017 3 consent for establishment of sugar factories. One M/s Prem Sugars and Chemicals Corporation Limited ('factory' for short) applied to the Board seeking consent for establishment of sugar factory within the limits of Hatna and Kalinganahalli villages of Nagamangala Taluk, Mandya District. The Board by resolution dated 06.09.2012 rejected the said request of the said sugar factory.
3. On the respondent assuming the Office of the Chairman of the Board, under letter dated 20.11.2012 Board accorded consent for establishment of sugar factory. The consent was communicated by the Senior Environmental Officer.
4. One Nanjappa.G filed complaint before the XXIII Additional City Civil & Sessions Judge & Special Court for trial of cases under the PC Act, Bengaluru City against accused Nos.1 to 3 namely the present respondent, K.N.Lingaraju the Senior Environmental Officer of the Board and Sri V.Harimohan Naidu the Managing Director of the sugar factory alleging that Crl.R.P.No.950/2017 4 though the application of third accused for grant of consent for establishment of sugar factory was rejected, accused Nos.1 and 2 for their personal gain by abusing their official status manipulated documents and issued consent for establishment of the factory. It was alleged that accused Nos.1 and 2 i.e., the present respondent and the Senior Environmental Officer for personal gain favouritism, nepotism and by corrupt practice have issued such consent, thereby committed misconduct.
5. In the complaint, the complainant sought to prosecute accused Nos.1 to 3 for the offences punishable under Section 13(1)(c)(d) read with Section 13(2) of the PC Act. The trial Court on recording the sworn statement of the complainant and on hearing him by order dated 09.10.2014 took cognizance of the offence punishable under Section 13(1)(d)(iii) of the PC Act against the respondent. The trial Court did not take cognizance against accused No.2 on the ground that he was a public servant and there was no sanction to prosecute him. So far as accused No.3, the trial Court Crl.R.P.No.950/2017 5 held that nothing was forthcoming in the sworn statement of the complainant that accused No.3 joined hands with accused No.1.
6. After taking cognizance, the trial Court summoned the respondent to take up the trial. Pending those proceedings the complainant G.Nanjappa died. The present petitioners got themselves impleaded as his legal representatives and proceeded with the matter.
7. The respondent filed application under Section 239 of Cr.P.C. read with Section 19 of PC Act for his discharge on the following grounds:
(i) There was no proper sanction to prosecute him;
(ii) He was not the sole decision making authority or the authority to issue consent;
(iii) The material placed by the complainant did not make out any ground to proceed against him for the offences alleged;
8. The petitioners opposed the said application. On hearing the parties, the trial Court by the impugned Crl.R.P.No.950/2017 6 order allowed the application and discharged the respondent on the following grounds:
(i) There was no sanction order of the competent authority to prosecute the accused/respondent;
(ii) The decision to issue consent for establishment of the sugar factory was the decision of the Board and not the decision of the respondent alone;
(iii) No grounds were made out to proceed against the respondent.
9. Sri Rameshchandra, learned counsel for the petitioner seeks to assail the impugned order on the following grounds:
(i) Application under Section 239 of Cr.P.C. was not maintainable as the case was instituted other than on a police report.
(ii) Since the case was instituted on a private complaint, Section 245(1) of Cr.P.C. required the trial Court to record the evidence under Section 244 Cr.P.C.
and then proceed to consider the application. Crl.R.P.No.950/2017 7
(iii) The validity of the sanction could not have been gone into without recording the evidence before charge; and
(iv) There was material to proceed against the respondent/accused.
In support of his arguments, he relies upon the following judgments:
i) R.S.Nayak vs. A.R.Antulay and another1
ii) State of Tamil Nadu by Inspector of Police Vigilance and Anti Corruption vs. N.Suresh Rajan2
iii) Dr.H.C.Sathyan vs. State of Karnataka3
iv) E.X.Anthony vs. Mrs.Maliakkal Perianchery Ansa4
10. Per contra, Sri Vikram Phadke, learned counsel for the respondent seeks to justify the impugned order on the following grounds: 1
AIR 1986 SC 2045 2 (2014)11 SCC 709 3 ILR 2017 Ka4 3531 4 ILR 2019 Kar 709 Crl.R.P.No.950/2017 8
(i) Though Section 245(1) of Cr.P.C.
contemplates recording of evidence before consideration of application for discharge, Section 245(2) of Cr.P.C. which is in the nature of the exception to Section 245(1) of Cr.P.C. enables the Court to proceed to hear on the application for discharge without recording the evidence;
(ii) The decision to issue consent to accused No.3 was the collective decision of the Board, therefore, criminal intention could not be imputed to respondent alone;
(iii) The complaint and the material produced by the complainant themselves did not make out any ground to proceed against the respondent for trial of the said offences.
(iv) Even if the ground of validity of sanction order is ignored, the order still sustains on the other grounds ; and
(iv) This Court in revisional jurisdiction cannot interfere with the order of the trial Court since no glaring irregularity or perversity is found in the order. Crl.R.P.No.950/2017 9
In support of his arguments, he relies upon the following judgments:
i) Ajoy Kumar Ghose vs. State of
Jharkhand5
6
ii) R.Sai Bharathi vs. J.Jayalalitha
iii) Amit Kapoor vs. Ramesh Chander7
Regarding Section 245 of Cr.P.C:
11. As already pointed out, learned Counsel for the petitioners relying on Section 245(1) of Cr.P.C. submitted that before proceeding to consider the matter for discharge of the accused, it was mandatory for the trial Court to record the evidence of the prosecution as contemplated under Section 244 of Cr.P.C.
12. Section 244 and 245 of Cr.P.C. read as follows:
"244. Evidence for prosecution.
(1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall 5 2009 Crl.L.J.2824 6 2004 Crl.L.J.286 7 (2012)9 SCC 460 Crl.R.P.No.950/2017 10 proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.
245. When accused shall be discharged.
(1) If, upon taking all evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
13. No doubt Section 245(1) of Cr.P.C opens with the words that upon taking all evidence referred to in Section 244 of Cr.P.C, the Magistrate may proceed to discharge the accused if he considers that no case against the accused has been made out to warrant his conviction.
14. Sub Section (2) of Section 245 of Cr.P.C is in the nature of exception to Section 245(1) which Crl.R.P.No.950/2017 11 enables the Magistrate to consider the discharge at any previous stage other than the stages contemplated under Section 245 of Cr.P.C and Section 244 of Cr.P.C. But only thing is, to exercise power under Section 245(2) of Cr.P.C based on the material placed before him the Magistrate has to satisfy that the charge is groundless and he has to record the reasons for such satisfaction.
15. In para 18 of the judgment in Ajoy Kumar's case referred to supra relied on by the learned counsel for the respondent, while considering whether the Magistrate can discharge the accused before recording the evidence under Section 244 of Cr.P.C it was held as follows:
"18. The previous stage would obviously be before the evidence of the prosecution under Section 244(1) Cr.P.C. is completed or any stage prior to that. Such stages would be under Section 200 Cr.P.C. to Section 204 Cr.P.C. Under Section 200, after taking cognizance, the Magistrate examines the complainant or such other witnesses, who are present. Such examination of the complainant and his witnesses is not necessary, where the complaint has been made by a public Crl.R.P.No.950/2017 12 servant in discharge of his official duties or where a Court has made the complaint or further, if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 Cr.P.C. Under Section 201 Cr.P.C., if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to the proper Court or direct the complainant to a proper Court. Section 202 Cr.P.C. deals with the postponement of issue of process. Under sub-Section (1), he may direct the investigation to be made by the Police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.
Under Section 202(1)(a) Cr.P.C., the Magistrate cannot give such a direction for such an investigation, where he finds that offence complained of is triable exclusively by the Court of sessions. Under Section 202(1)(b) Cr.P.C., no such direction can be given, where the complaint has been made by the Court. Under Section 203 Cr.P.C., the Magistrate, after recording the statements on oath of the complainant and of the witnesses or the result of the inquiry or investigation ordered under Section 202 Cr.P.C., can dismiss the complaint if he finds that there is no sufficient ground for proceeding. On the other hand, if he comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under Section 204 Cr.P.C. He can issue summons for the attendance of the accused and in a warrant-case, he may issue a warrant, or if he thinks fit, a summons, for securing the attendance of the accused. Sub-Sections (2), (3), (4) Crl.R.P.No.950/2017 13 and (5) of Section 204 Cr.P.C. are not relevant for our purpose. It is in fact here, that the previous stage referred to under Section 245 Cr.P.C. normally comes to an end, because the next stage is only the appearance of the accused before the Magistrate in a warrant-case under Section 244 Cr.P.C. Under Section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. He may, at that stage, even issue summons to any of the witnesses on the application made by the prosecution. Thereafter comes the stage of Section 245(1) Cr.P.C., where the Magistrate takes up the task of considering on all the evidence taken under Section 244(1) Cr.P.C., and if he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the conviction of the accused, the Magistrate proceeds to discharge him. The situation under Section 245(2) Cr.P.C., however, is different, as has already been pointed out earlier. The Magistrate thereunder, has the power to discharge the accused at any previous stage of the case. We have already shown earlier that that previous stage could be from Sections 200 to 204 Cr.P.C. and till the completion of the evidence of prosecution under Section 244 Cr.P.C. Thus, the Magistrate can discharge the accused even when the accused appears, in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr.P.C., makes an application for discharge."
(Emphasis supplied) Crl.R.P.No.950/2017 14
16. Ultimately, it was held that the Magistrate can discharge the accused even when the accused appears in pursuance of the summons or warrant and even before the evidence is led under Section 244 of Cr.P.C. The case on hand is fully covered by the said judgment.
17. In A.R.Antulay's case and Suresh Rajan's case referred to supra relied on by the petitioners, Section 245(2) of Cr.P.C had not fallen for consideration of the Court. Those cases were considered under Section 245(1) of Cr.P.C., therefore, the said judgments are not applicable.
18. In Satyan's case relied upon by the learned counsel for the petitioner it was held that validity of the sanction order cannot be considered before recording the evidence. In this case, since the Counsel for the respondent did not press that ground, testing the impugned order on that question does not survive. Therefore, the judgment in Satyan's case in no way advances the case of the petitioner.
Crl.R.P.No.950/201715
19. In E.X.Anthony's case referred to supra, relied on by the learned counsel for the petitioner, the matter was considered after the examination of the witnesses under Section 244 of Cr.P.C. Even in that case extracting the judgment in Ghosh's case, it was reiterated that previous stage stated in Section 245(2) of Cr.P.C is obviously before the evidence of the prosecution under Section 244 of Cr.P.C. Therefore, that judgment in no way advances of the case of the petitioner.
20. The trial Court considered the objections of the petitioner regarding consideration of the application of the respondent for discharge even before recording of the evidence. The records show that the application for discharge was filed under Section 239 of Cr.P.C for which the technical objection was raised saying that Section 239 of Cr.P.C is not applicable in cases initiated other than the police report. In that context, the trial Court said that mere quoting of the wrong provision is Crl.R.P.No.950/2017 16 not fatal and the Courts have to go by the substance of the applications.
21. Having regard to the aforesaid provisions and the reasons assigned by the trial Court, this Court does not find any illegality, impropriety or incorrectness in the trial Court proceeding to consider the application of the respondent before recording the evidence under Section 244 Cr.P.C.
Regarding existence of material to proceed against the respondent to frame charge:
22. The respondent was discharged exercising the power under Section 245(2) of Cr.P.C. To discharge the accused under Section 245(2) Cr.P.C. the Magistrate shall be satisfied based on the material placed before him that the charge is groundless and record his reasons in that regard. Therefore, it has to be examined whether the material produced before the trial Court was sufficient to hold that the charge was groundless.
Crl.R.P.No.950/201717
23. In the complaint the complainant sought to prosecute accused Nos.1 to 3 for the offences punishable under Section 13(1)(c) and (d) read with Section 13(2) of the PC Act. Section 13(1)(c) and (d) read with Section 13(2) of the PC Act read as follows:
"13. Criminal misconduct by a public servant.--
(1) A public servant is said to commit the offence of criminal misconduct,--
(a) XXXX
(b) XXXX
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."Crl.R.P.No.950/2017 18
24. To constitute the offences punishable under Section 13(1)(c) the complainant was expected to show that the respondent/accused dishonestly and fraudulently misappropriated or converted for his own use any property entrusted to him or under his control or as a public servant allowed any other person to commit the aforesaid misappropriation by fraudulent or dishonest means.
25. To attract Section 13(1)(d) (i) to (iii) the complainant was expected to plead and produce the material to the effect that respondent as a public servant by corrupt or illegal means obtained for himself or for any other person any valuable thing or any pecuniary advantage without any public interest. Therefore this Court has to see whether any such allegations were made in the complaint and the material was produced to substantiate that.
26. Material allegations against the accused Nos.1 to 3 were in para 16 and 17 of the complaint which read as follows:
Crl.R.P.No.950/201719
"16. Under these anomalies the third accused has been benefited from the granting Consent for establishment and it is also causative of series of loss to the environment and it is the duty of accused Nos.1 and 2 to preserve the ecology and environment and the accused Nos.1 and 2 has acted deliberately to favour the 3rd accused ignoring the public interest and squarely attracts 13(1) (c) of the Prevention of Corruption Act.
17. The forgoing facts shows manipulation of records for issue of Consent for Establishment by the accused Nos.1 and 2 for making personal gain by abuse of their official status. While issuing Consent for Establishment the Accused Nos.1 and 2 have misused their official position to make illegal gains. By issuing Consent for Establishment, it is clear that the accused Nos.1 & 2 for personal gain and guilty of corruption, favoritism, nepotism and their action lacks integrity in their capacity as public servants.Hence the action of the accused Nos.1 & 2
gross criminal misconduct and they have abused their position and power to their advantage and detriment to the public at Crl.R.P.No.950/2017 20 large. The present set up also failed to act in accordance with the norms of integrity and conduct which ought to be followed by public servants of its clause of which they belongs."
27. The whole allegations were that respondent ignoring the public interest deliberately showed favour to accused No.3. There were no specific allegations of respondent receiving illegal gratification from accused No.3. The particulars of the alleged personal gains were not stated.
28. The trial Court did not take cognizance against accused No.3 on the ground that no allegations attracting Sections 13(1)(c) or 13(1)(d) were made out in the complaint or the sworn statement. That order was not challenged. The trial Court did not take cognizance against accused No.2 also for want of sanction. The petitioners did not obtain sanction against accused No.2 and attempt to prosecute him.
29. Even after considering the complaint allegations and the sworn statement, the trial Court Crl.R.P.No.950/2017 21 took cognizance only for the offences under Section 13(1)(d)(iii) of the PC Act. To constitute an offence under Section 13(1)(d)(iii) of the PC Act, there should be material to hold that the respondent as a public servant obtained for himself or for any person any valuable thing or pecuniary advantage without public interest. As already pointed out neither the complaint nor the sworn statement disclosed what was the pecuniary advantage obtained by the respondent in issuing the consent.
30. As pointed out by the trial Court, the consent was issued not solely by the respondent but, the consent was an outcome of the collective decision of the Karnataka State Pollution Control Board. The board consisted of 8 members other than the respondent. Amongst the said 8 members one was the Co-Chairman. There was nothing to show that the opinion of the Chairman alone was prevailing in issuing such consent. In the complaint, it was not even stated that the Crl.R.P.No.950/2017 22 respondent pressurized other members to pass such resolution.
31. In para 37 of the judgment of the Hon'ble Supreme Court in Sai Bharathi's case referred to supra it was held as follows:
"37. Regarding the charge against A3, who was the Chairman-cum-Managing Director of TANSI from 1.8.1991 to 10.7.1992, we have to bear in mind certain facts. The decision to accept the offer of Jaya Publications was that of the Board and not of A-3 alone. PW 8 the General Manager and Company Secretary of TANSI admitted that all the decisions were taken by the Sub-Committee and no decision was taken independently by any individual and A-3 followed the decision of the Sub-Committee, which was approved by the Board. Therefore, there was no evidence to show that A-3 acted against the decision to favour Jaya Publications. The sale of land to Jaya Publications is a collective decision of the Board and not of any individual, the price on which the land was to be sold and the price on which the buildings were to be sold were decided by the Board of Directors to which the Government gave approval and thus there was no independent assignment to A- 3 in deciding the matter nor did he suppress any document by not placing them before the Board of Directors."
(Emphasis supplied) Crl.R.P.No.950/2017 23
32. Similarly, in the case on hand, the decision to issue consent for establishment of sugar factory was the collective decision of the Board and not of the respondent alone. Therefore, the trial Court was justified in applying the aforesaid judgment to the facts of the case.
33. This being the revision petition under Section 397 of Cr.P.C the scope of interference in the order of the trial Court is circumscribed by the limitations stated therein. In this regard, the Hon'ble Supreme Court in Amit Kapoor's case relied on by the learned counsel for the respondent in para 12 has held as follows:
" 12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion Crl.R.P.No.950/2017 24 is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits."
(Emphasis supplied)
34. Having regard to the aforesaid judgment, unless it is found that there is patent defect or error of jurisdiction in exercising the discretion or that the trial court acted arbitrarily or in a perverse manner, this Court cannot interfere with the order of the trial Court.
35. The above discussions go to show that the trial Court considering all the material placed before it, the rival contentions of the parties and the legal position by assigning sound reasons arrived at the conclusion to discharge the respondent. This Court does not find any illegality, impropriety or incorrectness in the order of the trial Court. Therefore, the petition is dismissed.
Sd/-
JUDGE akc