Karnataka High Court
Sri K. S. Krishnaswamy vs State By Bengaluru Metropolitan Task ... on 13 December, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:51853
CRL.P No. 10397 of 2024
C/W CRL.P No. 6800 of 2018
CRL.P No. 8349 of 2018
AND 1 OTHER
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 10397 OF 2024
C/W
CRIMINAL PETITION NO. 6800 OF 2018
CRIMINAL PETITION NO. 8349 OF 2018
CRIMINAL PETITION NO. 9542 OF 2022
IN CRL.P No. 10397/2024
BETWEEN:
1. SRI K. S. KRISHNASWAMY
C/O KADALA SHAMACHAR
AGED ABOUT 55 YEARS
NO.48, 2ND CROSS
2ND MAIN, BCMC LAYOUT
Digitally signed by RAGHUVANAHALLI
NAGAVENI
DODDAKALLASANDRA
Location: HIGH
COURT OF BENGALURU - 560 062.
KARNATAKA
...PETITIONER
(BY SRI GIRISH N., ADVOCATE)
AND:
1. STATE BY BENGALURU
METROPOLITAN TASK FORCE
BBMP BUILDING
NR SQUARE
BENGALURU - 560 001.
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NC: 2024:KHC:51853
CRL.P No. 10397 of 2024
C/W CRL.P No. 6800 of 2018
CRL.P No. 8349 of 2018
AND 1 OTHER
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2. SRI C.S.RAGHU
S/O V.M.SHANKAR
AGED ABOUT 46 YEARS
PRESIDENT
KARNATAKA STATE DALITH
VIMOCHANA SENE
NO.305, 3RD FLOOR
1ST CROSS
GANDHINAGAR
BENGALURU - 560 009.
...RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP
SRI KEMPARAJAU, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C.,(528 OF BNSS) PRAYING TO QUASH THE ENTIRE
PROCEEDINGS AGAINST THE PETITIONER IN
th
C.C.NO.4236/2018 ON THE FILE OF THE 4 ACMM BENGALURU
AND FOR THE OFFENCES P/U/S 441, 436A OF KMC ACT, 1976
AND SEC.217, 409 R/W SEC.34 OF IPC.
IN CRL.P NO. 6800/2018
BETWEEN:
1. SRI TANVEER AHMED
S/O ABDUL MAJEED,
AGED ABOUT 58 YEARS,
THE EXECUTIVE ENGINEER,
CHAMARAJAPET SUB-DIVISION,
BBMP,
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NC: 2024:KHC:51853
CRL.P No. 10397 of 2024
C/W CRL.P No. 6800 of 2018
CRL.P No. 8349 of 2018
AND 1 OTHER
BENGALURU - 560 001.
...PETITIONER
(BY SRI SRINIVAS V., ADVOCATE)
AND:
1. STATE BY
BANGALORE METROPOLITAN TASK FORCE
BBMP BUILDING, N.R. SQUARE,
BENGALURU,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
2. C.S.RAGHU
S/O V.M.SHANKAR
AGED ABOUT 40 YEARS
KARNATAKA STATE DALIT VIMOCHANA SENE
NO.30, 3RD FLOOR, AMAR TOWERS
1ST CROSS, GANDHINAGAR,
BENGALURU - 560 009.
...RESPONDENT
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI KEMPARAJU, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C.,(528 OF BNSS) PRAYING TO QUASH THE
ENTIRE PROCEEDINGS AS AGAINST THIS PETITIONER IN
C.C.NO.4236/2018 ON THE FILE OF IV ADDL.C.M.M.,
BENGALURU FILED BY THE RESPONDENT POLICE.
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NC: 2024:KHC:51853
CRL.P No. 10397 of 2024
C/W CRL.P No. 6800 of 2018
CRL.P No. 8349 of 2018
AND 1 OTHER
IN CRL.P NO. 8349/2018
BETWEEN:
1. SRI LAKSHMINARASAIAH
S/O LATE KARIYANNA,
AGED ABOUT 60 YEARS
JOINT COMMISSIONER (EAST),
BBMP, BENGALURU
PRESENTLY MEMBER OF
KARNATAKA PUBLIC SERVICE COMMISSION,
UDYOGA SOUDHA,
BENGALURU - 560 001.
...PETITIONER
(BY SRI. NAGARAJAPPA A., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY BENGALURU METROPOLITAN TASK FORCE,
BBMP BUILDING, N.R.SQUARE,
BENGALURU - 560 002.
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
2. SRI C.S.RAGHU
AGED MAJOR
PRESIDENT
KARNATAKA STATE DALIT VIMOCHANA SENE
NO.305, 3RD FLOOR,
1ST CROSS, GANDHINAGAR,
BENGALURU - 560 009.
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NC: 2024:KHC:51853
CRL.P No. 10397 of 2024
C/W CRL.P No. 6800 of 2018
CRL.P No. 8349 of 2018
AND 1 OTHER
...RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL. SPP FOR R-1;
SRI KEMPARAJU, ADVCOATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C.,(528 OF BNSS) PRAYING TO QUASH THE
ENTIRE PROCEEDINGS AGAINST THE PETITIONER IN
C.C.NO.4236/2018 ON THE FILE OF THE IV A.C.M.M.,
BANGALORE AND FOR THE OFFENCE P/U/S 441, 436A OF
K.M.C. ACT AND SEC.217, 409 R/W 34 OF IPC.
IN CRL.P NO. 9542/2022
BETWEEN:
1. SRI. M.R BYREGOWDA
S/O RAMANNA,
AGED ABOUT 66 YEARS,
RESIDING AT NO.248,
3RD MAIN ROAD,
BCMC LAYOUT,
RAGHUVANAHALLI,
KANAKAPURA MAIN ROAD,
BENGALURU - 109
2. SRI ASHOKA
S/O LATE C. MARI,
AGED ABOUT 61 YEARS,
NO.69, 1ST CROSS,
VEERANNA GARDEN,
MOORE ROAD,
FRAZER TOWN,
BENGALURU - 560 005
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NC: 2024:KHC:51853
CRL.P No. 10397 of 2024
C/W CRL.P No. 6800 of 2018
CRL.P No. 8349 of 2018
AND 1 OTHER
ALSO
THE PETITIONERS ARE
WORKING AS ASSISTANT REVENUE OFFICER,
CHAMARAJPET SUB-DIVISION,
BBMP, BENGALURU
...PETITIONERS
(BY SRI SRINIVAS V., ADVOCATE)
AND:
1. STATE BY
BANGALORE METROPOLITAN TASK FORCE
BBMP BUILDING,
N.R.SQUARE, BENGALURU
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
2. C.S.RAGHU
S/O V.M.SHANKAR,
AGED ABOUT 40 YEARS,
KARNATAKA STATE DALIT VIMOCHANA SENE,
NO.305, 3RD FLOOR,
AMAR TOWERS,
1ST CROSS, GANDHINAGAR,
BENGALURU - 09.
...RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI V.F.KUMBAR, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C.,(528 OF BNSS) PRAYING TO QUASH THE
ENTIRE PROCEEDINGS AS AGAINST THIS PETITIONER IN
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NC: 2024:KHC:51853
CRL.P No. 10397 of 2024
C/W CRL.P No. 6800 of 2018
CRL.P No. 8349 of 2018
AND 1 OTHER
C.C.NO.4236/2018 ON THE FILE OF THE IV A.C.M.M., AT
BENGALURU FILED BY THE RESPONDENT POLICE.
THESE PETITIONS, COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioners in this batch of petitions are all accused in Crime No.30 of 2014, in which the Police have filed a charge sheet and is now pending in C.C.No.4236 of 2018 before the IV Additional Chief Judicial Magistrate at Bangalore. Since these petitions project a solitary ground for seeking quashment of proceedings, they are taken up together and considered by this common order.
2. Heard Sri N.Girish, learned counsel appearing for the petitioner in Crl.P.No.10397 of 2024;, Sri V.Srinivas, learned counsel appearing for the petitioners in Crl.P.No.6800 of 2018 and Crl.P.No.9542 of 2022; Sri A. Nagarajappa, learned counsel appearing for the petitioner in Crl.P.No.8349 of 2018; Sri B.N. Jagadeesha, learned Additional State Public Prosecutor -8- NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER appearing for respondent No.1 in all the cases; Sri Kemparaju, learned counsel appearing for the 2nd respondent in Crl.P.Nos.
10397 of 2024, 6800 and 8349 of 2018 and Sri V.F.Kumbar, learned counsel appearing for respondent No.2 in Crl.P.No.9542 of 2022.
3. Petitioners in Criminal Petition Nos.10397 of 2024, 6800 of 2018, 8349 of 2018 and 9542 of 2022 are accused Nos. 3, 4, 2, 8 and 7 respectively. For the sake of convenience, the facts obtaining in Criminal Petition No.10397 of 2024 would be narrated.
4. Facts, in brief, germane are as follows:-
The petitioners are all employees or Corporation servants of the Bruhat Bengaluru Mahanagara Palike ('BBMP' for short).
A complaint comes to be registered by the 2nd respondent who claims to be the Karnataka State Dalit Vimochana Sene alleging that the property in Ward No.139 of the BBMP which is called as 'Peer Boundary' in Cottonpet Main Road is illegally encroached by certain persons and BBMP officials have failed to protect the said property. The officials of the BBMP are the -9- NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER accused in the cases at hand. The crux of the allegation was that the Chief Engineer, the Executive Engineer, the Revenue Officer among whom the petitioners are, did not act in clearing the encroachment by conniving with illegal encroachers of the BBMP property. A complaint then comes to be registered on the aforesaid grievance on 5-06-2014. The Police after investigation filed a charge sheet and the concerned Court registers the crime in C.C.No.4236 of 2018 by taking cognizance of the offices punishable under Sections 441, 436A of the Karnataka Municipal Corporations Act, 1976 ('KMC Act for short) and Sections 217, 409 r/w 34 of the IPC. The matter is pending consideration before the concerned Court. In one of the petitions filed in Criminal Petition No.8349 of 2018 this Court granted an interim order of stay of all further proceedings in C.C.No.4236 of 2018 in terms of its order dated 28-05-2019.
The said interim order has been reiterated in other cases also, except in Crl.P.No.10397 of 2024.
5. The learned counsel representing the petitioners would project one solitary threshold bar for the concerned Court to take cognizance of the offence. It is the contention of the
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER learned counsel for the petitioners that the petitioners are public servants. The offence alleged is either negligence in discharge of official duty or erroneous discharge of official duty.
Therefore, sanction as obtaining under Section 197 of the Cr.P.C., was imperative to be obtained prior to the concerned Court taking cognizance of the offence. It is an admitted fact that there is no sanction either sought or accorded by the Competent Authority. The learned counsel would further contend that the complaint is registered by the Bangalore Metropolitan Task Force ('BMTF'). It is not declared to be Police Station as obtaining under the provisions of the Cr.P.C., and, therefore, the very registration of crime, as against these petitioners, is erroneous.
6. Per contra, the learned Additional State Public Prosecutor representing the State would vehemently refute the submissions to contend that the allegations in the cases at hand are for offences punishable under Section 409 of the IPC inter alia and dereliction of duty, as obtaining under the provisions of the KMC Act. For these actions, no sanction is required. The learned Additional State Public Prosecutor would
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER further contend that BMTF, for the purpose of conduct of investigation and filing of final report, is declared to be a Police Station long ago. Therefore, the said ground is not available to these petitioners.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
8. The afore-narrated facts are a matter of record. What drives the complainant to register the complaint is dereliction of duty on the part of these petitioners in checking the growth of illegal encroachment of BBMP property which in the cases at hand is 'Peer boundary' in the Cottonpet Main road. What is alleged is, connivance of these officials of the illegal encroachment. Therefore, the complaint is registered. BMTF conducts investigation and files final report. The final report drives the petitioners to this Court in the subject petitions.
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER
9. Since threshold bar of continuance of proceedings is projected by these petitioners qua sanction, it is necessary to notice the order of taking cognizance. It reads as follows:
"29-12-2017:
The Charge sheet submitted by Pl, BMTF PS against accused No.1 to 8 in Crime No.30 of 2014 for the offences punishable u/s 441, 436(A), KMC Act and 217, 409 r/w 34 IPC. The original FIR and complaint enclosed. Charge sheet and connected papers checked. Accused No.2 to 6 are on regular bail. Accused No.1, 7 and 8 are absconding. Eight sets of charge sheet copies furnished.
For orders.
ORDER Perused the statement of the witnesses and materials on record. Cognizance is taken for the offences punishable U/s 441, 436(A) KMC Act and 217, 409 r/w 34 IPC. Register the criminal case against accused. Issue SS to accused No.2 to 6 and NBW against accused No.1, 7 and 8. Returnable by 01-03-2018."
Cognizance is taken pursuant to final report of BMTF. The final report reads as follows:
"§ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ ªÁå¦ÛUÉ ¸ÉÃjzÀ ZÁªÀÄgÁd¥ÉÃmÉ G¥À«¨sÁUÀzÀ°è£À ªÁqïð £ÀA.139, ¨sÀQëUÁqÀð£ï, PÁl£ï¥ÉÃmÉ ªÀÄÄRågÀ¸ÉÛAiÀÄ°ègÀĪÀ ©©JA¦ ¸ÀéwÛ£À ¸ÀASÉå 140 gÀ ¦Ãgï¨ËAræ d«ÄãÀ£ÀÄß PÁ®A £ÀA.2 gÀ°è £ÀªÀÄÆ¢¹gÀĪÀ J1 DgÉÆæAiÀÄÄ MvÀÄÛªÀj ªÀiÁrPÉÆAqÀÄ 4 §ÈºÀvï ªÀĽUÉUÀ¼À£ÀÄß ºÁUÀÆ 28 ¸ÀtÚ ªÀĽUÉUÀ¼À£ÀÄß ¤ªÀiÁðt ªÀiÁr ªÁtÂdå GzÉÝñÀPÁÌV ¨ÁrUÉUÉ ¤ÃrgÀÄvÁÛgÉ. ªÀiÁ£Àå PÀ£ÁðlPÀ gÁdå GZÀÒ £ÁåAiÀiÁ®AiÀÄzÀ DzÉñÀ ¸ÀASÉå ¹¹¹(¹«¯ï) £ÀA.921/2013 gÀ°è DzÉñÀ ¤ÃrzÀÝgÀÄ ¸ÀºÀ ¦Ãgï¨ËAræ d«ÄäUÉ vÀAw¨ÉðAiÀÄ£ÀÄß C¼ÀªÀr¸À®Ä DzÉò¹zÀÝgÀÆ ¸ÀºÀ PÁ®A £ÀA.4 gÀ°è £ÀªÀÄÆ¢¹gÀĪÀ J2, J3, J4, J5, J6 ªÀÄvÀÄÛ PÁ®A £ÀA 2gÀ°è £ÀªÀÄÆ¢¹gÀĪÀ J7 & J8 DgÉÆæUÀ¼ÀÄ ¸ÀPÁðj £ËPÀgÀgÁVzÀÄÝ ¸ÁªÀðd¤PÀ ¸ÉêÉAiÀÄ°èzÀÝgÀÄ ¸ÀºÀ ¸ÀPÁðgÀzÀ ¸ÀévÁÛzÀ ¦Ãgï¨ËAræ d«ÄäUÉ vÀAw¨ÉðAiÀÄ£ÀÄß C¼ÀªÀr¸ÀzÉ J1 DgÉÆæUÉ MvÀÄÛªÀj ªÀiÁrPÉÆAqÀÄ ªÁtÂdå GzÉÝñÀPÁÌV ¨ÁrUÉ ¤ÃqÀ®Ä ¸ÀºÀPÀj¹ ¸ÀPÁðgÀzÀ ¨ÉÆPÀ̸ÀPÉÌ
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER £ÀµÀÖªÀÅAlĪÀiÁrgÀÄvÁÛgÉAzÀÄ ¸ÁQëzÁgÀgÀ ºÉýPÉUÀ½AzÀ ºÁUÀÆ zÁR¯Áw ªÀÄvÀÄÛ ¸ÀܼÀ vÀ¤SɬÄAzÀ zÀÈqsÀ¥ÀnÖgÀÄvÀÛzÉ.
DzÀÝjAzÀ DgÉÆæUÀ¼À «gÀÄzÀÞ ªÉÄîÌAqÀ PÀ®A jÃvÁå zÉÆõÁgÉÆÃ¥ÀuÉ ¸À°è¸À¯ÁVzÉ.
(¸ÀéwÛ£À £ÀA 140 ©©JA¦ ¸ÀévÀÄÛ DVgÀĪÀÅzÀjAzÀ PÀ®A 192(J) 192 (©) PÉ.J¯ï.Dgï DPïÖ C£ÀÄß PÉÊ©qÀ¯ÁVzÉ) (ªÀiÁ£Àå DAiÀÄÄPÀÛgÀÄ, ©©JA¦ gÀªÀjUÉ ¸ÀPÁðj £ËPÀgÀgÀ «gÀÄzÀÞ zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀnÖ ¸À°è¸À®Ä C£ÀĪÀÄwUÁV ¢£ÁAPÀ 10-5-2017, ºÁUÀÆ ¢.19- 6-2017 gÀAzÀÄ ¥ÀvÀæ ªÀÄÄSÉãÀ PÉýPÉÆAqÀÄ ¸ÀºÀ E°èAiÀĪÀj«UÀÆ ¤ÃqÀzÉ EgÀĪÀÅzÀjAzÀ ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀÄPÉÌ zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀnÖ ¸À°è¹zÉ.)"
If the summary of the charge sheet as obtaining in Column No.7 quoted supra is noticed, the allegation against these petitioners is, dereliction of duty or inadequate discharge of official duty. Nevertheless, the allegations spring from discharge of official duty. It is not in dispute that petitioners are Corporation servants and the Corporation is a State under Article 12 of the Constitution of India. Though they may not be Government servants, but they are public servants.
10. If proceedings have to continue against public servants, it is imperative that before the concerned Court takes cognizance of the offence, sanction from the Competent Authority to prosecute must be on record. This is the purport of Section 197 of the Cr.P.C. It is an admitted fact that in the
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER cases at hand, sanction is neither sought nor granted.
Therefore, it is a case where the concerned Court takes cognizance without sanction for prosecution being in place.
11. Section 197 of the Cr.P.C., 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--
(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 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
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER been committed under Section 166-A, Section 166-B, Section 354, Section 354-A, Section 354-B, Section 354- C, Section 354-D, Section 370, Section 375, Section 376, Section 376-A, Section 376-AB, Section 376- C, Section 376-D, Section 376-DA, Section 376-DB] or Section 509 of the Indian Penal Code (45 of 1860).
(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.
(3-A) 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.
(3-B) 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, 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
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER 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."
The purport and imperativeness or Section 197 of Cr.P.C. need not detain this Court for long or delve deep into the matter.
12. The Apex Court in the case of A.SRINIVASALU v.
STATE1, has held as follows:
".... .... ....
Discussion and Analysis Part I (Revolving around Section 197 of the Code)
32. There is no dispute about the fact that A-1 to A-4, being officers of a company coming within the description contained in the Twelfth item of Section 21IPC, were "public servants" within the definition of the said expression under Section 21IPC. A-1 to A-4 were also public servants within the meaning of the expression under Section 2(c)(iii) of the PC Act. Therefore, there is a requirement of previous sanction both under Section 197(1) of the Code and under Section 19(1) of the PC Act, for prosecuting A-1 to A-4 for the offences punishable under IPC and the PC Act.
33. Until the amendment to the PC Act under the Prevention of Corruption (Amendment) Act, 2018 (Act 16 of 2018), with effect from 26-7-2018, the requirement of 1 (2023) 13 SCC 705
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER a previous sanction under Section 19(1)(a) was confined only to a person "who is employed". On the contrary, Section 197(1) made the requirement of previous sanction necessary, both in respect of "any person who is" and in respect of "any person who was" employed. By the amendment under Act 16 of 2018, Section 19(1)(a) of the PC Act was suitably amended so that previous sanction became necessary even in respect of a person who "was employed at the time of commission of the offence".
34. The case on hand arose before the coming into force of the Prevention of Corruption (Amendment) Act, 2018 (Act 16 of 2018). Therefore, no previous sanction under Section 19(1) of the PC Act was necessary insofar as A-1 was concerned, as he had retired by the time a final report was filed. He actually retired on 31-8-1997, after 7 months of registration of the FIR (31-1-1997) and 5 years before the filing of the final report (16-7-2002) and 6 years before the Special Court took cognizance (4-7-2003). But previous sanction under Section 19(1) of the PC Act was required in respect of A-3 and A-4, as they were in service at the time of the Special Court taking cognizance. Therefore, the Agency sought sanction, but the Management of BHEL refused to grant sanction not once but twice, insofar as A-3 and A-4 are concerned.
35. It is by a quirk of fate or the unfortunate circumstances of having been born at a time (and consequently retiring at a particular time) that the benevolence derived by A-3 and A-4 from their employer, was not available to A-1. Had he continued in service, he could not have been prosecuted for the offences punishable under the PC Act, in view of the stand taken by BHEL.
36. It appears that BHEL refused to accord sanction by a letter dated 24-11-2000, providing reasons, but the CVC insisted, vide a letter dated 8-2- 2001. In response to the same, a fresh look was taken by the CMD of BHEL. Thereafter, by a decision dated 2- 5-2001, he refused to accord sanction on the ground that it will not be in the commercial interest of the
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER Company nor in the public interest of an efficient, quick and disciplined working in PSU.
37. The argument revolving around the necessity for previous sanction under Section 197(1) of the Code, has to be considered keeping in view the above facts. It is true that the refusal to grant sanction for prosecution under the PC Act in respect of A-3 and A-4 may not have a direct bearing upon the prosecution of A-1. But it would certainly provide the context in which the culpability of A-1 for the offences both under IPC and under the PC Act has to be determined.
38. It is admitted by the respondent State that no previous sanction under Section 197(1) of the Code was sought for prosecuting A-1. The stand of the prosecution is that the previous sanction under Section 197(1) may be necessary only when the offence is allegedly committed "while acting or purporting to act in the discharge of his official duty". Almost all judicial precedents on Section 197(1) have turned on these words. Therefore, we may now take a quick but brief look at some of the decisions.
39.Hori Ram Singh v. Crown [Hori Ram Singh v. Crown, 1939 SCC OnLine FC 2] is a decision of the Federal Court, cited with approval by this Court in several decisions. It arose out of the decision of the Lahore High Court against the decision of the Sessions Court which acquitted the appellant of the charges under Sections 409 and 477-AIPC for want of consent of the Governor Sir S. Varadachariar, with whose opinion Gwyer, C.J. concurred, examined the words, "any act done or purporting to be done in the execution of his duty" appearing in Section 270(1) of the Government of India Act, 1935, which required the consent of the Governor. The Federal Court observed at the outset that this question is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances.
40. The Federal Court then referred by way of analogy to a number of rulings under Section 197 of the Code and held as follows : (Hori Ram Singh case [Hori
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER Ram Singh v. Crown, 1939 SCC OnLine FC 2] , SCC OnLine FC) "The reported decisions on the application of Section 197 of the Criminal Procedure Code are not by any means uniform. In most of them, the actual conclusion will probably be found to be unexceptionable, in view of the facts of each ease; but, in some, the test has been laid down in terms which it is difficult to accept as exhaustive or correct. Much the same may be said even of decisions pronounced in England, on the language, of similar statutory provisions (see observations in Booth v. Clive [Booth v. Clive, 10 CB 827 (1851)] ). It does not seem to me necessary to review in detail the decisions given under Section 197 of the Criminal Procedure Code which may roughly be classified as falling into three groups, so far as they attempted to state something in the nature of a test. In one group of cases, it is insisted that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it : cf.Sk. Abdul Khadir Saheb, In re [Sk. Abdul Khadir Saheb, In re, 1916 SCC OnLine Mad 419] ; Kamisetty Raja Rao v. T. Ramaswamy [Kamisetty Raja Rao v. T. Ramaswamy, 1927 SCC OnLine Mad 9] , Amanat Ali v. King Emperor [Amanat Ali v. King Emperor, 1929 SCC OnLine Cal 113] , King Emperor v. Maung Bo Maung [King Emperor v. Maung Bo Maung, 1935 SCC OnLine Rang 38] and GurushidayyaShantvirayya Kulkarniv. Emperor [GurushidayyaShantvirayya Kulkarniv. Emperor, 1938 SCC OnLine Bom 51] . In another group, more stress has been laid on the circumstance that the official character or status of the accused gave him the opportunity to commit the offence. It seems to me that the first is the correct view. In the third group of cases, stress is laid almost exclusively on the fact that it was at a time when the accused was engaged in his official duty that the alleged offence was said to have been committed [seeJujjavarapuGangaraju v. KandiboyinaVenki [Juj javarapuGangaraju v. KandiboyinaVenki, 1929 SCC OnLine Mad 34] ], quoting from Mitra's Commentary on the (Criminal Procedure Code). The use of the expression "while acting", etc. in Section 197 of the Criminal Procedure Code (particularly its
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER introduction by way of amendment in 1923) has been held to lend some support to this view. While I do not wish to ignore the significance of the time factor, it does not seem to me right to make it the test. To take an illustration suggested in the course of the argument, if a medical officer, while on duty in the hospital, is alleged to have committed rape on one of the patients or to have stolen a jewel from the patient's person, it is difficult to believe that it was the intention of the Legislature that he could not be prosecuted for such offences except with the previous sanction of the Local Government."
(emphasis supplied)
41. It is seen from the portion of the decision extracted above that the Federal Court categorised in Hori Ram Singh [Hori Ram Singh v. Crown, 1939 SCC OnLine FC 2] , the decisions given under Section 197 of the Code into three groups, namely, (i) cases where it was held that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it; (ii) cases where more stress has been laid on the circumstance that the official character or status of the accused gave him the opportunity to commit the offence; and (iii) cases where stress is laid almost exclusively on the fact that it was at a time when the accused was engaged in his official duty that the alleged offence was said to have been committed. While preferring the test laid down in the first category of cases, the Federal Court rejected the test given in the third category of cases by providing the illustration of a medical officer committing rape on one of his patients or committing theft of a jewel from the patient's person.
42. In MatajogDobey v. H.C.Bhari [MatajogDobey v. H.C. Bhari, (1955) 28 ITR 941 : 1955 SCC OnLine SC 44 : (1955) 2 SCR 925 : AIR 1956 SC 44] a Constitution Bench of this Court was concerned with the interpretation to be given to the words, "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" in Section 197 of the Code. After referring to the decision in Hori Ram Singh [Hori Ram Singh v. Crown, 1939 SCC OnLine FC 2] , the Constitution Bench summed up the
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER result of the discussion, in para 19 by holding :
(MatajogDobey case [MatajogDobey v. H.C. Bhari, (1955) 28 ITR 941 : 1955 SCC OnLine SC 44 : (1955) 2 SCR 925 : AIR 1956 SC 44] , AIR p. 49) "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)
43. In State of Orissa v. Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004 SCC (Cri) 2104] , a two-Member Bench of this Court explained that the protection under Section 197 has certain limits and that it is available only when the alleged act is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. The Court also explained that if in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection.
44. The above decision in Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004 SCC (Cri) 2104] was followed (incidentally by the very same author) in K. Kalimuthu v. State of T.N. [K. Kalimuthu v. State of T.N., (2005) 4 SCC 512 : 2005 SCC (Cri) 1291] and Rakesh Kumar Mishra v. State of Bihar [Rakesh Kumar Mishra v. State of Bihar, (2006) 1 SCC 557 : (2006) 1 SCC (Cri) 432] .
45. In Devinder Singh v. State of Punjab [Devinder Singh v. State of Punjab, (2016) 12 SCC 87 : (2016) 4 SCC (Cri) 15 : (2017) 1 SCC (L&S) 346] , this Court took note of almost all the decisions on the point and summarised the principles emerging therefrom, in para 39 as follows : (SCC pp. 116-17)
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER "39. The principles emerging from the aforesaid decisions are summarised hereunder:
39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197CrPC has to be construed narrowly and in a restricted manner.
39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197CrPC. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule.
39.4. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under Section 197CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving the official act, ordinarily the provisions of Section 197CrPC would apply."
(emphasis supplied)
46. In D. Devaraja v. Owais Sabeer Hussain [D. Devaraja v. OwaisSabeer Hussain, (2020) 7 SCC 695:
(2020) 3 SCC (Cri) 442], this Court explained that sanction is required not only for acts done in the discharge of official duty but also required for any act purported to be done in the discharge of official duty and/or act done under colour of or in excess of such duty or authority. This Court also held that to decide whether
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty.
47. Keeping in mind the above principles, if we get back to the facts of the case, it may be seen that the primary charge against A-1 is that with a view to confer an unfair and undue advantage upon A-5, he directed PW 16 to go for limited tenders by dictating the names of four bogus companies, along with the name of the chosen one and eventually awarded the contract to the chosen one. It was admitted by the prosecution that at the relevant point of time, the Works Policy of BHEL marked as Ext. P-11, provided for three types of tenders, namely, (i) Open Tender; (ii) Limited/Restricted Tender; and (iii) Single Tender.
48. Para 4.2.1 of the Works Policy filed as Ext. P- 11 and relied upon by the prosecution laid down that as a rule, only works up to Rs 1,00,000 should be awarded by restricted tender. However, Para 4.2.1 also contained a rider which reads as follows:
"4.2.1. ... However even in cases involving more than Rs 1,00,000 if it is felt necessary to resort to restricted tender due to urgency or any other reasons it would be open to the General Managers or other officers authorised for this purpose to do so after recording reasons therefor."
49. Two things are clear from the portion of the Works Policy extracted above. One is that a deviation from the rule was permissible. The second is that even General Managers were authorised to take a call, to deviate from the normal rule and resort to restricted tender.
50. Admittedly, A-1 was occupying the position of Executive Director, which was above the rank of a General Manager. According to him he had taken a call to go for restricted tender, after discussing with the Chairman and Managing Director. The Chairman and Managing Director, in his evidence as PW 28, denied having had any discussion in this regard.
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51. For the purpose of finding out whether A-1 acted or purported to act in the discharge of his official duty, it is enough for us to see whether he could take cover, rightly or wrongly, under any existing policy. Para 4.2.1 of the existing policy extracted above shows that A-1 at least had an arguable case, in defence of the decision he took to go in for restricted tender. Once this is clear, his act, even if alleged to be lacking in bona fides or in pursuance of a conspiracy, would be an act in the discharge of his official duty, making the case come within the parameters of Section 197(1) of the Code. Therefore, the prosecution ought to have obtained previous sanction. The Special Court as well as the High Court did not apply their mind to this aspect.
52. Shri Padmesh Mishra, learned counsel for the respondent placed strong reliance upon the observation contained in para 50 of the decision of this Court in Parkash Singh Badal v. State of Punjab [Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] . It reads as follows : (SCC pp. 37-38, para
50) "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."
(emphasis supplied)
53. On the basis of the above observation, it was contended by the learned counsel for the respondent that any act done by a public servant, which constitutes an offence of cheating, cannot be taken to have been committed while acting or purporting to act in the discharge of official duty.
54. But the above contention in our opinion is far- fetched. The observations contained in para 50 of the decision in Parkash Singh Badal [Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] are too general in nature and cannot be
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER regarded as the ratio flowing out of the said case. If by their very nature, the offences under Sections 420, 468, 471 and 120-B cannot be regarded as having been committed by a public servant while acting or purporting to act in the discharge of official duty, the same logic would apply with much more vigour in the case of offences under the PC Act. Section 197 of the Code does not carve out any group of offences that will fall outside its purview. Therefore, the observations contained in para 50 of the decision in Parkash Singh Badal [Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] cannot be taken as carving out an exception judicially, to a statutory prescription. In fact, Parkash Singh Badal [Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] cites with approval the other decisions (authored by the very same learned Judge) where this Court made a distinction between an act, though in excess of the duty, was reasonably connected with the discharge of official duty and an act which was merely a cloak for doing the objectionable act. Interestingly, the proposition laid down in Rakesh Kumar Mishra [Rakesh Kumar Mishra v. State of Bihar, (2006) 1 SCC 557 : (2006) 1 SCC (Cri) 432] was distinguished in para 49 of the decision in Parkash Singh Badal [Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] , before the Court made the observations in para 50 extracted above.
55. No public servant is appointed with a mandate or authority to commit an offence. Therefore, if the observations contained in para 50 of the decision in Parkash Singh Badal [Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] are applied, any act which constitutes an offence under any statute will go out of the purview of an act in the discharge of official duty. The requirement of a previous sanction will thus be rendered redundant by such an interpretation.
56. It must be remembered that in this particular case, the FIR actually implicated only four persons, namely, PW 16, A-3, A-4 and A-5. A-1 was not implicated in the FIR. It was only after a confessional statement was made by PW 16 in the year 1998 that A-1
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER was roped in. The allegations against A-1 were that he got into a criminal conspiracy with the others to commit these offences. But the Management of BHEL refused to grant sanction for prosecuting A-3 and A-4, twice, on the ground that the decisions taken were in the realm of commercial wisdom of the Company. If according to the Management of the Company, the very same act of the co-conspirators fell in the realm of commercial wisdom, it is inconceivable that the act of A-1, as part of the criminal conspiracy, fell outside the discharge of his public duty, so as to disentitle him for protection under Section 197(1) of the Code.
57. In view of the above, we uphold the contention advanced on behalf of A-1 that the prosecution ought to have taken previous sanction in terms of Section 197(1) of the Code, for prosecuting A- 1, for the offences under IPC."
The Apex Court considers entire spectrum of law and holds that even if the offences are under the IPC, if the allegations relate to discharge of official duty or even remotely connected to discharge of official duty, sanction is imperative. The said judgment is further reiterated by the Apex Court in GURMEET KAUR v. DEVENDER GUPTA reported in 2024 INSC 967.
The Apex Court again holds that if allegations relate to discharge of official duty or it has any connection to such discharge, sanction is a must, before the concerned Court takes cognizance of the offence. Since there was no previous sanction those proceedings are quashed.
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13. The learned Additional State Public Prosecutor strenuously places reliance on a judgment of the Apex Court in the case of PUNJAB STATE WAREHOUSING CORPORATION v. BHUSHAN CHANDER reported in (2016)13 SCC 44 to buttress his submission that sanction is not a necessary concomitant when the offences alleged are punishable under the IPC, particularly of Sections 409 or 420 of the IPC as they would not come within the phrase 'discharge of official duty'.
The said judgment would not be applicable to the facts obtaining in the case at hand. Even otherwise, the judgments rendered subsequent to the afore relied on judgment would become applicable to the facts of the case. In that light, since the concerned Court has taken cognizance without sanction, the order of taking cognizance becomes a nullity in law. The further proceedings taken up by the concerned Court on the strength of the order of taking cognizance would also become illegal. But, that would not mean that the complaint or the final report would vanish. The Apex Court in GURMEET KAUR supra has reserved liberty to the respondent to take steps in accordance with law and seek an order of sanction.
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14. The learned counsel appearing for the petitioners submit that such a liberty should not be granted in the case at hand. It is their submission that the petitioners have long ago retired from service and the crime is of the year 2014.
Therefore, liberty should not be granted. This submission becomes unacceptable, as the Apex court in the cases of GURMEET KAUR or A.SRINIVASULU supra has reserved liberty to the State to proceed further after obtaining sanction.
Therefore, the said submission that liberty should not be granted is unacceptable.
15. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petitions are allowed.
(ii) The order of taking cognizance dated 29-12-2017 passed by the IV Additional Chief Metropolitan Magistrate, Bangalore in C.C.No.4236 of 2018 stands quashed qua the petitioners.
(iii) Liberty reserved in the respondents to take steps in accordance with law, bearing in mind the observations made in the course of the order, if
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NC: 2024:KHC:51853 CRL.P No. 10397 of 2024 C/W CRL.P No. 6800 of 2018 CRL.P No. 8349 of 2018 AND 1 OTHER they so desire. In the event sanction is granted against these petitioners the proceedings would revive before the concerned Court.
Consequently, I.A.No.1 of 2024 pending in Crl.P.No.10397 of 2024 also stands disposed.
Sd/-
(M.NAGAPRASANNA) JUDGE bkp List No.: 1 Sl No.: 15