Karnataka High Court
S L Haleshappa vs State By Bhadravathi Rural Police on 6 July, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
CRL.P No. 5846 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 5846 OF 2022
BETWEEN:
1. S L HALESHAPPA
S/O LATE LAKSHMAPPA
ASSISTANT EXECUTIVE ENGINEER
KARNATAKA HOUSING BOARD,
DISTRICT PROJECT OFFICE
SHIVAMOGGA
NOW WORKING AS ASSISTANT
EXECUTIVE ENGINEER,
KHB, DISTRICT PROJECT OFFICE TUMKUR
...PETITIONER
(BY SRI. PRINCE ISAC.,ADVOCATE)
AND:
Digitally signed 1. STATE BY BHADRAVATHI RURAL POLICE
by PADMAVATHI
BK REP BY STATE PUBLIC PROSECUTOR
Location: HIGH HIGH COURT BENGALURU
COURT OF
KARNATAKA
2. THE KUVEMPU UNIVERSITY
REP. BY REGISTRAR (EVALUATION)
SRI.A. RAMEGOWDA
JNANA SAIYADRI
SHANKARAGATTA
BHADRAVATHI TALUK
...RESPONDENTS
(BY SMT. K.P. YASHODHA, HCGP FOR R1)
-2-
CRL.P No. 5846 of 2022
THIS CRL.P FILED U/S.482 CR.P.C BY THE ADVOCATE
FOR THE PETITIONER PRAYING THAT THIS HONBLE COURT
MAY BE PLEASED TO QUASH THE CRIMINAL PROCEEDINGS
PENDING AGAINST HIM IN C.C.NO.458/2016
(C.C.NO.2909/2012) ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC AT BHADRAVATHI FILED IN
PURSUANCE TO CR.NO.106/2011 FOR THE OFFENCE
P/U/S.109, 120-B, 201, 381, 408, 417, 465, 466, 467,468, 471, 472
OF IPC AND SET THE PETITIONER AT LIBERTY.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question proceedings in C.C.No.458 of 2016 arising out of Crime No.106 of 2011 registered for offences punishable under Sections 109, 120B, 201, 381, 408, 417, 465, 4665, 467, 468, 471 and 472 of the IPC.
2. Heard Sri Prince Isac, learned counsel for the petitioner and Smt. K.P.Yashodha, learned High Court Government Pleader.
3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:
The petitioner is working as an Assistant Engineer in the Karnataka Housing Board possessing qualification of -3- CRL.P No. 5846 of 2022 Diploma in Civil Engineering. The allegation against the petitioner is that he had produced marks cards of Kuvempu University for having completed Bachelour of Engineering Degree in the discipline of Civil Engineering and a degree certificate to that effect being issued by very University. The same were enclosed to a representation to the competent authority in the Karnataka Housing Board claiming that the petitioner being a degree holder and being senior enough should be promoted to the cadre of Assistant Executive Engineer. On 2-02-2009, on the strength of the representation so made by the petitioner enclosing marks cards and the degree certificate, he was promoted to the cadre of Assistant Executive Engineer and after his promotion, the documents so produced by the petitioner were sent to the University for verification. The University appears to have affirmed the marks cards and the degree certificate in favour of the petitioner. Later the Karnataka Housing Board generated some suspicion on a complaint that the marks card and the degree certificate -4- CRL.P No. 5846 of 2022 both given by the petitioner for securing promotion were fabricated and this time communicates to the Vice-
Chancellor of the University directly for verification. On re-
verification, the Vice-Chancellor of the Kuvempu University confirmed that the documents/marks cards and the degree certificate were bogus, fabricated and forged documents upon which the petitioner was placed under suspension and later reverted to the cadre of Assistant Engineer from the cadre of Assistant Executive Engineer and presently the petitioner appears to be holding the post of Assistant Executive Engineer on in-charge basis.
4. Based upon the said act of the petitioner in which he had the support of staff/employees of the University, a crime is registered against the petitioner in Crime No.106 of 2011 for the aforesaid offences. The police after investigation filed a charge sheet against the petitioner and several other accused for series of offences and the learned Magistrate having taken cognizance against the petitioner for the said offence, the matter is -5- CRL.P No. 5846 of 2022 now pending in C.C.No.458 of 2016 before the III Additional Senior Civil Judge & JMFC at Bhadravathi. It is the aforesaid proceedings that are called in question in the case at hand.
5. The learned counsel appearing for the petitioner has a solitary submission to make that sanction under Section 197 of the Cr.P.C. is not obtained before the act of the learned Magistrate taking cognizance of the offence. It is his submission that the petitioner being a Government servant sanction under Section 197 for his prosecution is imperative without which the proceedings are a nullity in law.
5.1. On the other hand, the learned High Court Government Pleader would refute the submissions to contend that trial is in the advanced stage where evidence of parties is already over; the petitioner has knocked the doors of this Court after 11 years of registration of crime and 6 years after cognizance being taken and seeks dismissal of the petition.
-6-CRL.P No. 5846 of 2022
6. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
7. The afore-quoted facts are all borne out of the records and do not need reiteration. To consider the solitary submission made by the learned counsel for the petitioner, it is germane to notice Section 197 of the Cr.P.C. and it reads as follows:
"197. Prosecution of Judges and public servants.--(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)--
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs -7- CRL.P No. 5846 of 2022 of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.
Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of the Indian Penal Code (45 of 1860).-8- CRL.P No. 5846 of 2022
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government"
occurring therein, the expression "State Government" were substituted.
(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.-9- CRL.P No. 5846 of 2022
(3B) Notwithstanding anything to the Contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
In terms of Section 197 of the Cr.P.C. sanction would be required to prosecute a public servant, who is alleged to have committed offences punishable under the Code in
- 10 -
CRL.P No. 5846 of 2022 the discharge of his official duties. The words used are "offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty." The words quoted would assume significance for consideration of the contention of the learned counsel for the petitioner. The allegation against the petitioner is, without obtaining a degree, the petitioner in connivance with other employees of the University had produced fake and fabricated marks cards and fake degree certificate and on the strength of the said degree certificate secured promotion to the next higher cadre. When the employer gets to know that the petitioner had in fact played fraud on the Board by producing forged and fabricated marks cards and degree certificate, reverted the petitioner by withdrawing the promotion that was granted. The act of the petitioner in generating fabricated and forged documents to secure his promotion and get unjust enrichment out of the promotion, by no stretch of imagination be held to be an act which is in the discharge
- 11 -
CRL.P No. 5846 of 2022 of his official duty as no part of official duty would come about for the petitioner's personal acts. It is for securing such unjust enrichment the petitioner had prima facie indulged in such actions. Therefore, submission of the learned counsel that sanction to prosecute the petitioner is imperative is noted only to be rejected. No other submission is made by the learned counsel appearing for the petitioner. It is for the petitioner to come out clean in the trial that is on which according to the learned High Court Government Pleader is at the advanced stage. Interference on the facts narrated hereinabove and the delay with which the petitioner has approached this Court would not merit any interference.
8. For the aforesaid reasons, the criminal petition lacks merit and is dismissed.
It is made clear that observations made in the course of this order are only for the purpose of considering the case of the petitioner under Section 482 of the Cr.P.C. This
- 12 -
CRL.P No. 5846 of 2022 would not bind or influence further proceedings pending against the petitioner.
Sd/-
JUDGE SJK