Karnataka High Court
Jinendra M vs The State By on 14 December, 2022
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.5449 OF 2021
BETWEEN
JINENDRA M
S/O SOMAPPA POOJARY
AGED ABOUT 36 YEARS
OCC: DEPUTY COMMISSIONER
MINORITY WELFARE DEPARTMENT HASSAN
HASSAN DISTRICT - 573 201 ... PETITIONER
(BY SRI P.B. UMESH, ADVOCATE FOR
SRI R.B. DESHPANDE, ADVOCATE)
AND
1. THE STATE BY
KARNATAKA LOKAYUKTHA POLICE
HASSAN - 573 201
(REPRESENTED BY SPECIAL PUBLIC PROSECUTOR FOR
KARNATAKA LOKAYUKTHA
HIGH COURT BUILDINGS
BENGALURU - 560 001)
2. FRANCIS XEVIER
S/O LATE RAJAPPA
AGED ABOUT 36 YEARS
VINEETH ENTERPRISES
SHANKARA MATH ROAD
HASSAN - 573 201
... RESPONDENTS
(BY SRI B.B. PATIL, SPECIAL COUNSEL FOR R1
SRI H.N.M. PRASAD, ADVOCATE FOR
2
SRI HITESH KUMAR JAIN, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH
THE ENTIRE PROCEEDINGS IN PCR NO.3/2020 PENDING ON
THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE
AT HASSAN (CR.NO.1/2021 OF ACB POLICE, HASSAN,
REGISTERED FOR THE OFFENCES P/U/S 409, 420 READ WITH
SECTION 149 OF IPC AND SECTION 13(1)(c)(d)(e) READ WITH
SECTION 13(2) OF PREVENTION OF CORRUPTION ACT 1988).
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.11.2022 THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
This criminal petition is filed by accused No.1 under Section 482 of Cr.P.C. praying for quashing the proceedings in PCR No.3/2020 pending on the file of Principal District and Sessions Judge, Hassan (Cr.No.1/2021 registered by the then ACB police, Hassan), for the offences punishable under Sections 409, 420 read with Section 149 of IPC and Section 13(1)(c)(d)(e) read with Section 13(2) of Prevention of Corruption Act, 1988 (for short 'PC Act').
2. Heard the arguments of counsel for the petitioner and Special Counsel for the respondent. 3
3. The case of prosecution is that on the private complaint No.3/2020 filed by respondent No.2, the District Judge referred the matter to the then ACB. In turn, the ACB registered an FIR in Crime No.1/2021. It is alleged that in the complaint, that the complainant is a business man and also doing social work. The petitioner-accused No.1 is Deputy Commissioner of Minority Welfare Department, Hassan. Accused Nos.2 and 3 are the engineers in Panchayat Raj Department. Accused Nos.2 and 3 used to prepare estimation to grant sanction by accused No.1. Accused No.4 was working as a contractor with respect to the grants sanctioned by accused No.1. Accused No.5 is the father of a reputed Church, namely, St. Anthony Church, Hassan. That on 13.06.2013, the State Government granted Rs.50,00,000/- for renovation of the churches which are more than 100 years old and Rs.40,00,000/- for the churches which are old in between 76-100 years, Rs.25,00,000/- to the churches which are between the age of 26-50 years and Rs.10,00,000/- for 4 the churches which are aged between 11 to 25 years. No grants accorded for the churches aged about up to 10 years. The accused persons colluded together, misused the grant, cheated the government. They altered the year as '1900' in place of '1960' in the foundation stone of old St. Antony Church in order to show that the church is more than 100 years old. In fact, on 29.04.1960, Dr. A.V. D'souza had inaugurated the church and the said church was not constructed in the year 1900. In the application dated 14.09.2017 given for sanctioning of grant, already a new church has been constructed with the help of donors and inaugurated in 2010. The church which was formed in the 1960 is now converted as church hall in 2010. They are performing marriage sand other functions. But suppressing the said fact, accused No.5 prepared an affidavit and submitted to the government for sanction of the grant. The accused colluded with the notary, forged signature of one Smt. Helen and on verification, there was a signature of Ronald Kardoza in place of secretary. The 5 real name of secretary is Smt. Helen Roach. Now accused Nos.2 and 3 filed progress report stating that work was done, even though no work was done. They estimated the renovation work for Rs.1.40 crores and it is stated that the balance of Rs.90,00,000/- through subscription from the donors, but no document to show that the said amount collected and spent. They misused the amount and forged the document. Therefore, prayed for taking action. After receipt of the PCR, it was referred to the police and in turn, the police registered the FIR, which is under challenge.
4. Learned counsel for the petitioner has contended that respondent No.2 filed a private complaint and the same was referred to the police without obtaining sanction and even other wise, while referring the matter, the Special Court did not apply mind for satisfaction of the complaint. There is no detailed order passed by the Special Court for referring the matter. There is no merit in the complaint and there is no case for investigation. Therefore, the complaint/ FIR requires to be quashed. In 6 support of his arguments, the learned counsel has relied upon the following judgments:
(i) Anil Kumar and Others vs. M.K. Aiyappa and Another in Criminal Appeal No.1590-1591/2013 (Hon'ble Supreme Court)
(ii) Babu Rao Chinchanasur Vs. the State by Lokayukta and another in Criminal Petition No.3/2013 dated 13.02.2013 (High Court of Karnataka)
(iii) Anil Kumar B.H and Others Vs. the Lokayuktha Police in Writ Petition 24537/2013 dated 25.11.2021 (High Court of Karnataka)
(iv) Dr. Nazrul Islam Vs. Basudeb Banerjee and others in C.R.R. No.625/2016 decided on 25.01.2022 (High Court of Calcutta).
5. Per contra, learned counsel appearing for the respondent No.1-Lokayuktha has objected the petition contending that the Special Court referred the complaint under section 156(3) of Cr.P.C. and at the time of referring the complaint to the police, sanction is not required. The sanction is required only at the time of taking cognizance, but not referring the matter for registration of FIR. The 7 police have already investigated the matter and sanction was also accorded by the State Government as on 26.02.2021. Therefore, prayed for dismissing the petition. He has relied upon the judgment of this Court reported in LAWS (KAR) 2016-9-14 in the case of N.C. Shivakumar and Another Vs. State (Criminal Petition No.2006/2014 decided on 08.09.2016 - High Court of Karnataka).
6. Learned counsel for respondent No.2 has also objected the petition on the same line of arguments addressed by the learned Special Counsel for respondent No.1 Lokayukta. Hence, prayed for dismissal of the petition.
7. Having heard the arguments perused the records. The case of respondent No.2 is that he has filed the private complaisant before the Special Court under Section 200 of Cr.P.C. for the offences punishable under Sections 409, 420 read with Section 149 of IPC and Section 13(1)(c)(d)(e) read with Section 13(2) of PC Act. It is 8 alleged that the petitioner being the Deputy Commissioner of Minority Welfare Department, Hassan, by colluding with the other accused, said to be tampered with the year of construction of a church and released the fund of Rs.1.40 crores, thereby, misappropriated the amount sanctioned by the state government. It is an admitted fact that when the private complaint has been filed by the respondent No.2, the Special Court referred the complaint to the ACB for investigation and submit report. Accordingly, the then ACB registered the FIR against the petitioner. It is also an admitted fact that the state government already accorded sanction on 26.02.2021 for conducting investigation as per Section 17(a) of PC Act.
8. The learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court reported in the case of Anil Kumar and Others vs. M.K. Aiyappa stated supra at para 13 and 14 held under:
13. The expression "cognizance" which appears in Section 197 CrPC came up for 9 consideration before a three-Judge Bench of this Court in State of U.P. v. Paras Nath Singh [(2009) 6 SCC 372 : (2009) 2 SCC (L&S) 200] , and this Court expressed the following view: (SCC pp. 375, para 6) "6. ... '10. ... And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words 'no' and 'shall' makes it abundantly clear that the bar on the 10 exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.'
14. In State of W.B. v. Mohd. Khalid [(1995) 1 SCC 684 : 1995 SCC (Cri) 266] , this Court has observed as follows:
"13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to 11 proceed against the offenders against whom a prima facie case is made out."
9. Whereas the learned counsel for the respondent relied upon the judgment of the coordinate bench of this court in the case of N.C. Shivakumar stated supra where the coordinate bench of this court considered the case of Anil Kumar stated supra in detail and held at para 46 as under and further at paragraphs No. 49 and 50 held as under:
"46. The facts were that on a complaint made by his wife, a case was registered against Parvinder Singh under Sections 406 and 498A IPC. Parvinder Singh had in turn lodged a complaint alleging that an Assistant Sub-Inspector (ASI) and a home guard came to his house and forcibly took him to the Police station. He was beaten and tortured. Some of his relatives arrived there and requested that he be spared. It was also alleged that the ASI had told them that they should speak to the Station House Officer (SHO), Dilawar Singh, who was also present. Dilawar Singh on being approached is said to have demanded a bribe of Rs. 20,000/-, but accepted Rs. 15,000/-. The amount was then said to be given to the ASI.12
47.xx xx
48.xx xx
49. It was then urged before the Supreme Court that in the absence of a sanction under section 19 of the PC Act, the appellant could not be proceeded against. In accepting the contention, the Apex Court has held thus:
"4. In our opinion, the contention raised by the learned counsel for the appellant is well founded. Sub-section (1) of Section 19 of the Act, which is relevant for the controversy in dispute, reads as under:
"19. Previous sanction necessary for prosecution. (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged, to have been committed by a public servant, except with the previous sanction, -
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not 13 removable from his office save by or with sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office."
This section creates a complete bar on the power of the Court to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority enumerated in clauses (a) to
(c) of this sub-section. If the sub-section is read as a whole, it will clearly show that the sanction for prosecution has to be granted with respect to a specific accused and only after sanction has been granted that the Court gets the competence to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by such public servant. It is not possible to read the section in the manner suggested by learned counsel for the respondent that if sanction for prosecution has been granted qua one accused, any other public servant for whose prosecution no sanction has been granted, can also be summoned to face prosecution.
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5. In State v. Raj Kumar Jain, (1998) 6 SCC 551, the Court was examining the scope of Section 6(1) Prevention of Corruption Act, 1947, which is almost similar to sub-section (1) of Section 19 of the Act. After quoting the provisions of Section 6(1) Prevention of Corruption Act, 1947, it was held as under in para 5 of the report:
"5. From a plain reading of the above section it is evidently clear that a Court cannot take, cognizance of the offences mentioned therein without sanction of the appropriate authority. In enacting the above section, the legislature thought of providing a reasonable protection to public servants in the discharge of their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions."
6. In Jaswant Singh v. State of Punjab, AIR 1958 SC 124, sanction had been granted for prosecution of the accused for an offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947, but no sanction had been granted for his prosecution under Section 5(1)(a) of the said Act. It was held that no cognizance could be taken for prosecution of the accused under Section 5(1)(a) of the Prevention of Corruption Act, 1947, as no 15 sanction had been granted with regard to the said offence, but the accused could be tried under Section 5(1)(d) of the said Act as there was a valid sanction for prosecution under the aforesaid provision.
7. In State of Goa v. Eabu Thomas, (2005) 8 SCC 130, decided by this Bench on 29.9.2005, it was held that in absence of a valid sanction on the, date when the Special Judge took cognizance of the offence, the taking of the cognizance was without jurisdiction and wholly invalid. This being the settled position of law, the impugned order of the High Court directing summoning of the appellant and proceeding against him along with Jasbir Singh ASI is clearly erroneous in law.
8. The contention raised by learned counsel for the respondent that a Court takes cognizance of an offence and not of an offender holds good when a Magistrate takes cognizance of an offence under Section 190 Cr.P.C. The observations made by this Court in Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167 were also made in that context. The Prevention of Corruption Act is a special statute and as the preamble shows this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim Generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. (See Godde Venkateswara Rao v. Govt. of Andhra Pradesh, AIR 16 1966 SC 828, State of Bihar v. Yogendra Singh AIR 1982 SC 882 and Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, AIR 1984 SC 1543). Therefore, the provisions of Section 19 of the Act will have an overriding effect over the general provisions contained in Section 190 or 319 Cr.P.C. A Special Judge while trying an offence under the Prevention of Corruption Act, 1988, cannot summon another person and proceed against him in the purported exercise of power under Section 31 Cr.P.C. if no sanction has been granted by the appropriate authority for prosecution of such a person as the existence of a sanction is sine qua non for taking cognizance of the offence qua that person.
9. For the reasons mentioned above, we are of the opinion that the impugned order of the High Court directing summoning of the appellant Dilawar Singh is wholly illegal and cannot be sustained. The appeals are accordingly allowed. The impugned order dated 3.7.2002 of the High Court is set aside and the order dated 7.1.2002 of the Special Judge, Barnala, is restored."
50. The consideration of the complaint and steps involved in the court taking cognizance of offences alleged under the provisions of the PC Act would yet be required to conform to the Cr.P.C, subject to Section 22 of the PC Act. The above decision does not lay down that this exercise is to be diluted or short circuited."
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10. In view of the judgment of the coordinate bench of this court considering the M.K .Ayyappa's case and held the sanction is required for the purpose of taking cognizance and there is no need to take sanction for referring the complaint to the police and it is police while taking investigation required to obtain sanction to proceed. Herein this case the police already obtained sanction from the state where on 26.2.2021 the state Government has already granted sanction to investigate the matter. Therefore considering the fact of the case that the petitioner said to be sanctioned amount to a church where they manipulated year of establishment of church by making correction from 1960 to 1900 in order to show the church is more than 100 years old and the petitioner being deputy commissioner before sanctioning the amount he has to verify the documents and ought to have granted the fund to the church such being the case matter required for investigation in order to verify whether the church was 18 built in the year 1900 or 1960. Therefore, the Lokayuktha police required to investigate the matter considering the same, the petition is devoid of merits and liable to be dismissed.
Accordingly, the petition is dismissed.
Sd/-
JUDGE CS