Karnataka High Court
Surendrababu S/O Basappa And Ors vs The State And Anr on 4 December, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL PETITION No.200347/2021
BETWEEN:
1. SURENDRABABU S/O BASAPPA
AGE: 59 YEARS, OCC: EXECUTIVE ENGINEER
R/O KBJNL, NLBC DIVISION
RODALABANDA VILLAGE, TQ.LINGASUGUR
DIST.RAICHUR-584127
2. ANILKUMAR NAIK S/O NILLAPPA NAIK
AGE: 30 YEARS, OCC: ASSISTANT ENGINEER
R/O AEE KBJNL, NLBC SUB DIVISION 18
RODALABANDA VILLAGE, TQ.LINGASUGUR
DIST.RAICHUR-584127
3. GANGADHAR S/O MALLAPPA
AGE: 37 YEARS, OCC: ASSISTANT ENGINEER
R/O KBJNL, NLBC DIVISION
RODALABANDA VILLAGE
TQ.LINGASUGUR
DIST.RAICHUR-584127
... PETITIONERS
(BY SRI AVINASH A. UPLAONKAR, ADVOCATE)
AND:
1. THE STATE THROUGH
LINGASUGUR POLICE STATION
DIST.KALABURAGI,
NOW REPRESENTED BY ADDL. SPP,
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HIGH COURT OF KARNATAKA
AT KALABURAGI BENCH-585107
2. RAGHAVENDRA NAYAK
S/O VENKATESHAPPA NAYAK
AGE: 36 YEARS, OCC: AGRICULTURE
R/O BASAVESHWARA NAGAR
NEAR TAHSIL OFFICE
MASKI, TQ.MASKI
DIST.RAICHUR-584124
... RESPONDENTS
(BY SRI GURURAJ V.HASILKAR, HCGP FOR R1;
SRI MAHANTESH PATIL, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE PRAYING TO QUASH THE FIR
IN CRIME NO.34/2021 (P.C.NO.41/2020) (ANNEXURE-A) OF
LINGASUGUR POLICE STATION, DIST.RAICHUR, PENDING
BEFORE THE PRINCIPAL CIVIL JUDGE AND J.M.F.C. COURT AT
LINGASUGUR, FOR OFFENCE U/SEC. 464, 468, 409, 420 OF
IPC, AGAINST THE PETITIONERS.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and the learned High Court Government Pleader and the learned counsel for respondent No.2.
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2. The factual matrix of the case is that the respondent No.2 has filed a private complaint in P.C.No.41/2020 before the Principal Civil Judge and JMFC Court at Lingasugur making allegation against these petitioners who are the engineers working in the KBJNL in the capacity of Executive Engineer, Assistant Engineer and Assistant Technical Evaluator and allegation made against these petitioners is that, accused No.4 Mr.Ameensab had indulged in fraud with malafide intention in order to deceive the Government, created false and forged documents i.e., work done certificates alleged to have been issued by the Executive Engineer, PWD and IWTD, Division Raichur and Executive Engineer, PRE Division Raichur. The said accused No.4 Ameensab by submitting such false and forged documents with the knowledge that, the said documents are false documents and secured the work order from the accused No.1. It is stated in the complaint that the accused Nos.1 and 2 have colluded with accused No.4 Ameensab with an intention to cheat the Government. Even though they are having knowledge that 4 the said work done certificates of accused No.4 are false and forged document which are not issued by the said authorities i.e., witness No.1 and 2 and illegally given the technical approval to the application of said Ameensab. Hence, the trial Court invoked sections 120-B, 409, 419, 420, 467, 468 & 471 read with section 34 of IPC. The learned Magistrate proceeded to pass the detailed order considering that it is a fit case to refer the matter to the concerned police for investigation as per section 156(3) of Cr.P.C. Accordingly after considering the complaint averments and taking note of the fact that these petitioners have technically approved the tender without verifying the alleged forged documents and also in detail passed the order regarding sanction under section 197 of Cr.P.C., and came to the conclusion that the act done by these petitioners does not come within the act purported to be done in discharging of public duties and in paragraph-32, in detail discussed and came to the conclusion that except the forged documents it does not come within the purview of in discharge of public duty and 5 hence, came to the conclusion that the petitioners will not get any protection under section 197 of Cr.P.C., and passed the detailed order and referred the matter under section 156 (3) of Cr.P.C. The said order runs 24 pages for application of his judicious mind. Being aggrieved by the said order, the present petition is filed before this Court.
3. The learned counsel for the petitioners would submit that learned Magistrate has committed an error in entertaining the private complaint without sanction. Learned counsel would contend that as per section 12 of the Karnataka Transparency in Public Procurements Act, 1999 act was done. He contended that every tender applied for will be scrutinized to the extent of technical bid and financial bid. Thus the fabricated document produced by the contractor cannot be noticed/verified in the e- procurement bidding. Even as per clause 19 of the Government of Karnataka, procurement of works-use of standard tender documents (KTPP Tenders) also there is no scope of any physical verification of any of the 6 documents uploaded by the bidding person and this aspect having considered by the trial Court while referring the matter under section 156 (3) of Cr.P.C. The counsel also in support of his argument relied upon the judgment of the Hon'ble Apex Court in the case of D. DEVARAJA VS. OWAIS SABEER HUSSAIN IN CRIMINAL APPEAL NO.458 OF 2020 dated 18.06.2020 and brought to the notice of this Court paragraph No.77 wherein the Hon'ble Apex Court held that while invoking section 482 of Cr.P.C., petition is maintainable to quash the proceedings which are ex-facie bad for want of sanction, frivolous or in abuse of process of the Court. If on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty where the criminal proceedings is apparently prompted by malafides and instituted with ulterior motive, power under section 482 of Cr.P.C., would have to be exercised to quash the proceedings to prevent abuse of process of Court.
4. The learned counsel appearing for the petitioners would vehemently contend that the act done by 7 these petitioners are in discharge of work appears to have a reasonable relationship that an official duty and hence protection under section 197 of Cr.P.C., comes into play. The counsel also referred the order passed by this Court in Criminal Petition No.7127/2020 and connected matters Criminal Petition Nos.5793/2020, 8039/2020 dated 05.04.2021, wherein this Court held that with regard to negligence is concerned on the part of these petitioners knowing fully well that they have not taken any action and already a case has been registered in crime No.111/2019 and the investigation is going on and hence came to the conclusion that Court can invoke section 482 of Cr.P.C. The learned counsel also brought to the notice of this Court, the order passed by this Court in criminal petition No.2098/2011 dated 19.03.2019 wherein also the Court exercising the power under section 482 of Cr.P.C., with regard to sanction is concerned and came to the conclusion that mandatory compliance of not obtaining the sanction amounts to an abuse of process when the officials are discharging their public duties. The counsel relied upon 8 the order passed in Criminal petition No.4881/2020 c/w criminal petition No.4968/2020 dated 12.02.2021 wherein also this Court while exercising power under section 482 of Cr.P.C., that petitioner has discharged his duty and sent the report to the Deputy Commissioner for recommendation in connection with discharging his public duty and under such circumstance, the Court can exercise power under section 482 of Cr.P.C.
5. Per contra, learned counsel for the respondent No.2 would submit that the orders relied upon by the petitioners' counsel are not applicable to the facts of the case on hand. In the present case, the contractor has created the forged documents and by relying upon the forged documents these petitioners knowing fully well that those documents are forged documents and in collusion with the said contractor accepted the tender without verifying genuineness of the documents issued by witnesses-1 and 2. The learned counsel would also submit that specific averments are made in the complaint that the 9 contractor has created the forged documents and relied upon the same and these petitioners knowing fully well that those documents are forged documents, in collusion with the said contractor, accepted the tender without verifying the genuineness of the documents issued by the witnesses PW1 and PW2.
6. The counsel also submits that the specific averments are made in the complaint that all of them colluded with each other relying upon the forged documents and based on the said documents, technical bid was accepted. The counsel in support of his arguments, relied upon the judgment reported in 2021(4) KLJ 254 in the case of S.SHIVAKUMAR AND OTHERS VS. STATE OF KARNATAKA AND OTHERS wherein this Court came to the conclusion that sanction is not necessary when an illegal detention was made and the same is not comes within the purview of protection as envisaged under Section 197 of Cr.P.C.
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7. The counsel referring to this judgment also contended that accepting the forged document, the tender not comes within the purview of discharging of public duty and the learned Magistrate while invoking Section 156(3) of Cr.P.C in detail discussed and passed the detailed order and rightly came to the conclusion that, that is not the part of public duty accepting the forged documents knowingfully well that those documents are forged documents and did not verify the genuineness of those documents and accepted the tender. The counsel also submits that the complainant on account of the act of these petitioners, suffered and he is an aggrieved person. When the forged documents are accepted and tender was accepted by the accused No.4, it cannot be contend that the complainant has no locus standi to file a complaint.
8. The counsel appearing for the State would submit that it requires an investigation and investigation cannot be curbed when the serious offence of forgery, the creation of the documents and also using the forged 11 documents as genuine documents and sanctioned the tender.
9. Having heard the respective counsel appearing for the parties and on perusal of the factual aspects of the case, a specific allegation is made in the complaint in paragraph 6 that based on the forged documents of Ameensab, these petitioners being the Executive Engineer, Assistant Engineer and Assistant Technical Evaluator knowing fully well that the said documents are forged one accepted the same without verification and those created documents are not issued by witness Nos.1 and 2. No doubt, the protection is given to the public servant under Section 197 of Cr.P.C. If any act purporting to be done in discharging of public duty and it is also settled law that, that act is not pertains to any discharge of public duty, protection cannot be given. The question before this Court that before referring the matter under Section 156(3) of Cr.P.C., Court has to look into the fact whether the learned Magistrate before invoking Section 156(3) of Cr.P.C, has 12 applied its judicious mind or not. But in the case on hand, the learned Magistrate passed the order in detail vide order dated 04.02.2021 extracting the allegations made in the complaint and so also taken note of the judgment of the Apex Court and thereafter proceeded to consider whether sanction is necessary or not in a case where offence of forgery and the forged documents have been relied upon and these petitioners who have been the competent authorities to examine that documents whether they are genuine or not and the very said document was accepted while accepting the tender of said Ammensab who created the documents.
10. When the said specific allegations are made that these petitioners have not verified the documents and accepted the tender, the very contention of the petitioners also causes loss to the Government and apart from that the complainant's tender process has not been considered. Under the circumstances, the very contention of the petitioners counsel that the complainant is not having any 13 locus standi and the other contention that using the forged document as a genuine document while accepting the tender, the act done by these petitioners come within the act purported to be done in discharging of public duties cannot be accepted. Hence, the learned Magistrate rightly came to the conclusion that the protection under Section 197 of Cr.P.C does not arise. Hence, I do not find any error committed by the learned Magistrate by referring the matter under Section 156(3) of Cr.P.C. No doubt, the principles laid down in the judgment referred supra in Devaraja's case and also the other judgments which have been relied upon by the petitioners counsel, it is settled law that if complaint is frivolous complaint requires sanction. Under such circumstances, it requires sanction or otherwise it amounts to an abuse of process and that too whether the complaint is filed with malafide intention and I do not find such circumstances in the present case on hand of any such malafide or abuse of process and it requires probe regarding forgery of document and using of the said forged document for getting the tender and the 14 same has not been considered by these petitioners before accepting the tender. The detail order passed by the learned Magistrate is based on the factual aspects and also contents of the complaint and the allegation made against these petitioners and learned Magistrate applied his judicious mind while passing the order. Hence, I do not find any merit in the petition to exercise the powers under Section 482 of Cr.P.C.
11. In view of the discussions made above, I pass the following:
ORDER The petition is rejected.
Sd/-
JUDGE VNR/SAN