Karnataka High Court
Dr Vedavati B J vs State By Bmtf Police on 22 September, 2016
Equivalent citations: 2016 (4) AKR 615, (2017) 1 KCCR 455 (2016) 4 CRIMES 288, (2016) 4 CRIMES 288
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 22ND DAY OF SEPTEMBER 2016
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.7060 of 2015
BETWEEN:
1. Dr. Vedavati B.J.,
Wife of Dr. Rajashekar,
Aged about 46 years,
MOH CV Ramnagar,
Bangalore.
2. Dr. Sujatha,
Wife of K.B.Gautham Raju,
Assistant Surgeon BBMP,
Sultanapuram,
Bangalore - 560 032.
3. Dr. Devika Rani,
Wife of Devaraj,
Aged about 46 years,
MOH, Jayanagar,
BBMP,
Bangalore.
4. Dr. G. Danalakshmi,
Wife of Dr. M. Manjunath,
2
MOH R.R.Nagar,
BBMP,
Bangalore - 560 098.
5. Dr. Komala K.R.,
Wife of N. Harish,
Aged about 46years,
MOH, Vijayanagar Zone,
BBMP,
Bangalore - 560 040.
6. Dr. Bhagyalakshmi,
Wife of B. Praveen Kumar,
Aged about 46 years,
MOH, BTM Layout,
BBMP,
Bangalore.
7. Dr. Nayanatara N Patil,
Wife of Vishwas Ithalmani,
Aged about 46 years,
MOH, Malleshwaram,
Bangalore.
8. Dr. Kalavathi Devi L.,
Wife of Dr. Giri T.V.,
MOH Govindarajanagar,
BBMP,
Bangalore - 560 079.
9. Dr. B. Sunitha,
Wife of Hari,
Aged about 46 years,
MOH Pulakeshinagar,
BBMP,
3
Bangalore.
10. Dr. Sandhya Rani M.N.,
Wife of Dr. K. Jayakumar,
Aged about 49 years,
MOH, Yelahanka Zone,
BBMP,
Bangalore - 560 092.
...PETITIONERS
(By Smt. Poonam Patil, Advocate for Smt. Vedanayaki Kiran
D., Advocate for Petitioner Nos.1 to 5, 7 to 9;
Shri K.B.Omkara, Advocate for Petitioner No.6)
AND:
1. State by
BMTF Police,
NR Square,
Bangalore - 560 001.
2. Sri. Uday Shankar,
Son of Late Patalaiah,
No.282, Munimarappa Block,
Devara Jeevanahalli,
Bangalore - 560 045.
3. Rajiv Gandhi University of
Health Sciences,
4th 'T' Block, Jayanagar,
Bangalore - 560 041.
Represented by Registrar.
[cause title amended
Vide court order
4
Dated 1.9.2016]
...RESPONDENTS
(By Shri Cehtan Desai, Government Pleader for Respondent
No.1;
Shri V.J.Benjamine, Advocate for Respondent No.2;
Shri N.K.Ramesh, Advocate for Respondent No.3)
*****
This Criminal Petition filed under Section 482 code of
Criminal Procedure, 1973, praying to quash the entire
proceedings in Crime No.41/2015 on the file of IV Additional
Chief Metropolitan Magistrate, Bangalore filed by the first
respondent police as against this petitioner.
This Criminal Petition coming on for Admission this day,
the court made the following:
ORDER
Heard the learned counsel for the petitioner and the learned Government Pleader.
Shri N.K. Ramesh, learned counsel appearing for the Rajiv Gandhi University of Health Sciences, Karnataka, was called upon to clarify the position as to whether a certificate course known as MPH course was a post-graduate course. 5
2. Shri N.K. Ramesh who has entered appearance would now state that the eligibility for obtaining the MPH course is an M.B.B.S. degree or higher and that without an M.B.B.S. degree, a person would not be able to undertake the course. MPH course is described as a Master in Public Health. The said clarification was required, in the background that the present petitioners are facing criminal proceedings for offences punishable under Sections 439 and 441 of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as 'the KMC Act', for brevity) read with Sections 409 and 420 of the Indian Penal Code, 1860.
3. It is alleged that the petitioners had produced a MPH course certificate claiming that it was a post-graduate course and the petitioners were thus receiving benefits of having received a post-graduate degree, from the Bruhat Bangalore Mahanagara Palike (BBMP). It is further alleged that the petitioners were fully aware that the MPH was a health course and not a post-graduate health course and in spite of it, have 6 relied on the same to receive the benefit. The petitioners are working as Medical officers of health and it is a promotional cadre and the criteria of promotion is an Assistant Surgeon of the Bangalore City Corporation who has put in service of not less than five years as an Assistant Surgeon in the BBMP and who possesses a degree in Medicine and Post-graduate degree in Public health, would be the criteria for promotion.
As per the notification issued by the Government, a masters of Public Health were to be considered as a post- graduate course for the purpose of promotion, as per the notification issued by the State Government dated 5.11.1984.
It is also pointed out by the petitioners that notwithstanding that the Additional Commissioner (Administration) had obtained clarification from the Rajiv Gandhi University of Health Sciences, Karnataka as to whether a Diploma in Public Health (DPH) was a post-graduate course, it was clarified that MPH was also a course which could be considered for promotion. This is vide the clarification dated 7 18.10.2012, which is also produced by the petitioners. Notwithstanding the same, the complaint having been lodged by the Bangalore Metropolitan Task Force (BMTF), the petitioners are before this court.
4. The learned counsel would point out that the Government, in proceedings dated 2.2.2013, has clarified and has cleared the air as to the confusion prevailing with regard to the jurisdiction and scope of the powers of the BMTF and in the wake of realization that investigations in cases being conducted under the Indian Penal Code by the BMTF, and while recalling its earlier Government order dated 19.03.1996, the powers under the relevant provisions of the IPC were entrusted for effective empowerment pertaining to urban governance and the Government order creating the BMTF was to ensure that the said Task Force worked for the better protection of public properties in Bangalore Metropolitan area and that it took special measures to protect Government lands, lakes, tanks and tank-beds in Bangalore Metropolitan area. Therefore, the 8 BMTF taking cases under the provisions of the Indian Penal Code, 1860 for forgery, was like grabbing the powers of the local jurisdiction police station. BMTF was a specialized force which was created to protect Government property and it ought not to enter into other areas. All other Government orders and notifications were thus superceded by the notification dated 2.2.2013, clarifying that the BMTF can register a case and proceed with the investigation of the case if the facts contained in the complaint disclosed offences under the Special Acts mentioned therein and in the Government order dated 19.03.1996, with or without those relevant under the IPC and the Karnataka Police Act.
The learned Government Pleader would point out that the said notification has been further supplemented by yet another notification dated 6.2.2013, where other special enactments have also been incorporated under which the BMTF could take action.
9
5. Even from a perusal of the subsequent notification dated 6.2.2013, it is evident that the provisions of the IPC could only be invoked in support of the main offence or to prosecute the main offence and not independently.
In the present case on hand, from a reading of Section 439 of the KMC Act, which is reproduced herein for ready reference:
"439. Penalty for not giving information or giving false information.--If any person who is required by the provisions of this Act or by any notice or other proceedings issued under this Act to furnish any information---
(a) omits to furnish it, or
(b) knowingly, or negligently furnishes false information, such person shall, on conviction, be punished with fine not exceeding one hundred rupees."
The section which is found under Chapter-XX provides for penalties and it is a general provision which prescribes a penalty to be imposed on any person who provides false 10 information knowingly or negligently or omits to furnish the information.
Section 441 is again a provision which is reproduced hereunder for ready reference:
"441. Penalty for unauthorized use of Corporation property.--Whoever dishonestly misappropriates or converts to his own use any Corporation property or puts into improper or unauthorized use such property shall, on conviction, be punished with imprisonment which may extent to three months or with fine which may extend to five hundred rupees or with both."
The said provision having been invoked against the petitioner, is again inexplicable for the property of the corporation.
Section 174 under Chapter-XII pertaining to property and contracts and reads as follows:
174. Corporation property.- (1) All property of the nature herein specified, and not being specially reserved by Government, shall be vested in and belong to the corporation and shall, together with all other 11 property or whatsoever nature or kind not being specially reserved by Government, which may become vested in the corporation, be under its direction, management and control and shall be held and applied by it as trustee, subject to the provisions and for the purposes of this Act, that is to say,-
(a) all public parks, playgrounds, and open spaces reserved for ventilation;
(b) all public lamps, lamp posts and apparatus connected therewith or appertaining thereto;
(c) all gates, markets, slaughter houses, manure and refuse depots and public buildings of every description.
(2) The corporation may accept trusts relating exclusively to the furtherance of purposes to which the corporation funds may be applied."
Therefore, it is not clear that Section 441 would be attracted with reference to Corporation property as considered under the provisions of the KMC Act.
6. On the face of it, if the petitioners have been availing the benefit by virtue of their claiming the MPH course as being equivalent to a post-graduate course, the said question cannot 12 be decided in criminal proceedings. In the absence of determination of any such equivalence, the BMTF seeking to proceed on the basis that the petitioners should not be entitled to claim eligibility for promotion on that ground, would be premature and on a presumption which is not available. Consequently, the BMTF would not have jurisdiction to initiate prosecution while invoking Section 439 and 441 of the KMC Act against the petitioners.
The clarifications issued by the State Government would also make it clear that the BMTF has no such power to prosecute the petitioners. Consequently, the petitions are allowed. The proceedings are quashed. The controversy as to whether or not the MPH course is equivalent to a post-graduate course, is left open.
Sd/-
JUDGE KS