Karnataka High Court
Mr.B.S.Ramakrishnaiah vs State By Karnataka Lokayukta Police on 22 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 613, 2020 (2) AKR 737
Author: K.Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22nd DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL REVISION PETITION NO.575/2015
BETWEEN:
MR. B.S.RAMAKRISHNAIAH
S/O. LATE SEETHARAMAIAH
AGED ABOUT 64 YEARS
R/O. LAKSHMINARAYANA NILAYA
ANJANI EXTENSION WEST
CHINTHAMANI - 563 125
CHIKKABALLAPURA DISTRICT
... PETITIONER
(BY SRI P.N.HEGDE, ADV.)
AND:
STATE BY KARNATAKA LOKAYUKTA POLICE
KOLAR DISTRICT
REPRESENTED BY ITS SPP
HIGH COURT OF KARNATAKA
BANGALORE - 01
... RESPONDENT
(BY SRI VENKATESH S.ARABATTI, SPP)
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THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CODE OF CRIMINAL
PROCEDURE, PRAYING TO SET ASIDE THE ORDER DATED
22.04.2015 PASSED BY THE PRL. DISTRICT AND SESSION
JUDGE, KOLAR IN PCACC NO.4/2012 ON THE APPLICATION
FILED BY THE PETITIONER U/S 227 R/W 239 OF THE CR.P.C.
AND CONSEQUENTLY DISCHARGE THE PETITIONER FROM THE
ALLEGED OFFENCES UNDER SECTION 13(1)(C) OF PREVENTION
OF CORRUPTION ACT AND SEC.465, 468, 471, 420, 409 AND 201
OF IPC.
THIS CRIMINAL REVISION PETITION IS COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This criminal revision petition is filed by the petitioner/accused under Section 397 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C' for short) being aggrieved by the order of dismissal of the application filed by the petitioner/accused under Sections 227 and 239 of Cr.P.C. passed by the Principal Sessions Judge, Kolar (hereinafter 3 referred to as 'trial Court' for short) in PCACC No.4/2012 dated 22.04.2015.
2. Heard the learned counsel for the petitioner/accused as well as learned SPP for the respondent- State.
3. The ranks of the parties before the trial Court is retained for the sake of convenience.
4. The case of the petitioner is that the respondent- Lokayukta Police filed a charge sheet against the petitioner/accused for the offences punishable under Section 13(1)(c) of the Prevention of Corruption Act (hereinafter referred to as 'PC Act' for short) and Sections 465, 468, 471, 420 and 409 of Indian Penal Code (hereinafter referred to as 'IPC' for short). After appearance of the accused before the trial Court, the petitioner/accused filed an application under Sections 227 and 239 of Cr.P.C for discharging him from the 4 charges, which was rejected by the trial Court. Hence, the petitioner is before this Court in this petition
5. Learned counsel for the petitioner argued for dismissing the application mainly on two folds:
a) The first leg of argument is that the petitioner is not at all a public servant in order to bring under the provision of Section 13(1)(c) of the PC Act. Absolutely, there is no material produced before the Court by the investigating officer in order to show that he is a public servant receiving any honorary, remuneration or commission from the Government. More over there is no order of appointment, date of assuming the charge and also the tenure of the post. Therefore, framing the charges under grounds of the PC Act is not sustainable.
b) That apart, the second contention is that even if the petitioner is considered as a public servant without the sanction, the cognizance cannot be taken as per Section 197 of Cr.P.C. At the time of filing the chargesheet, he is not 5 working under the Society but the sanction is compulsory in order to take cognizance against the petitioner/accused.
Therefore, on these two grounds, the framing of charges is not sustainable. Hence, he prayed to set aside the order passed by the trial Court.
6. Per contra, Sri. Venkatesh S. Arabatti, learned Special Public Prosecutor for the respondent-State has supported the order passed by the trial Court contending that the petitioner is the Secretary appointed as per the resolution dated 28.03.1972. Thereafter, even there are documents available and produced before the Court by Investigating Officer and it says, he is also Manager of the Society and the documents collected by the Investigating Officer shows that he is dealing with the Social Welfare Department, which is a Government Department coming under the definition of Section 2(c)(ix) of the PC Act and further, it is contended that at the time of filing the charge sheet, he was not in the 6 service. Therefore, obtaining sanction from the Government does not arise, even otherwise the same amount of misappropriation done by the accused not while discharging his official duty in order to get protection available under the section 197 of Cr.P.C.. In support of his argument, he has been laid down the judgment reported in (2015) 13 SCC 87 in the case of INSPECTOR OF POLICE AND ANOTHER VS. BATTENAPATLA VENKATA RATNAM AND ANOTHER. Hence, he prayed for dismissing the present petition.
7. Upon hearing the arguments of learned counsel for the petitioner/accused, learned SPP for the respondent- State, whether the order under revision, dismissing the application filed by the petitioner calls for interference by this Court. On perusal of the record, Lokayukta Police have filed the chargesheet against the petitioner/accused for the offences under both the provisions of PC Act as well as IPC. The main allegation against the accused is that the accused 7 being the Secretary of the Ronur Agricultural Co-operative Society Limited, Srinivaspura Taluk, entered into a contract with the Social Welfare Department, Karnataka for supplying food materials to the Hostel of the Moorarji Desai Educational Institution and during the period 1999-2000 onwards he has misappropriated Rs.15,02,656/- and caused loss to the Government. Thereby, he has committed the offences both under the PC Act as well as IPC. The learned counsel for the petitioner contended that the petitioner cannot be brought under category of Public Servant in order to try the offence under the PC Act. In this regard learned counsel for the Lokayukta has contended that the petitioner being the secretary of the Society comes under the 2(c)(ix) of the PC Act. For the sake of convenience, Section 2(c)(ix) of the PC Act, reads as hereunder:
"2. Definitions.- In this Act, unless the context otherwise requires, 8
(c) " Public servant" means,--
(i)......
(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956);"
8. A bare reading of the above provision reveals that if any person who is the president, secretary or any other office bearer of a registered co-operative society engaged in agriculture industry or trade .. is public servant. Thus, in the instant case, the petitioner is a public servant who is stated to be secretary of the said Society, appointed as per resolution dated 28.03.1992. As per the document D9 9 produced by the Investigating Officer, there was government order passed by the Zilla Executive Officer, CEO of Kolar, for supplying food material to the said Society where the petitioner was Secretary which in turn was supplying the same to the Hostel run by the Social Welfare Department is nothing but a trade contract between the Society and the Government run Institution. Therefore, the petitioner is the secretary of the society become public servant under the provision of Section 2(c)(ix) of the PC Act. Though a contention has been raised by the learned counsel for the petitioner that there is no order of appointment and there is no date of assumption of charges, the same cannot be sustained at the time of framing of charges by the Trial Court since it is not the case for departmental enquiry for the purpose of taking any disciplinary action against the Secretary. In order to consider the date of appointment, merely he is not receiving any honorary, salary or commission 10 from the Society cannot be a ground to say that he is not a Secretary working under the said society, whether free of cost or remuneration it is a contract between the Government and Society in supply of the food material to the Government Organization. Therefore, the contentions raised by the learned counsel for the petitioner is not sustainable that the petitioner is not a Government servant but he falls under the category of the 'public servant'.
9. Another contention raised by the learned counsel is that sanction is necessary for prosecuting the petitioner even under IPC as per the Section 197 of Cr.P.C. For the sake of convenience, the provision of Section 197 of Cr.P.C reads as hereunder:
"197. Prosecution of Judges and public servants:-- (1) When any person who is or was a Judge or Magistrate or a public servant not removal from his office save by or with the sanction of the Government is accused of any 11 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)."
10. As per the provision, it is clear that the Court shall not take cognizance unless the accused is discharged from the work while discharging his official duty. In the instant case, the misappropriation caused by him was not while discharging his official duty, but, the loss was caused to the Government institution as misappropriated by him, which was revealed by Audit report. The Court cannot look into the merits of the case or the veracity of the documents furnished by the Investigating Officer at the time of filing of the Charge sheet and framing of charges. Admittedly, the petitioner though public servant worked at the time of commission of 12 offence but at the time of filing of charge sheet, he is not a public servant. Therefore, sanction is not necessary.
11. That apart, the Hon'ble Supreme Court in the case of Inspector of Police and another (Supra) at para Nos.10 and 11, which reads as hereunder:
"10. Public servants have, in fact, been treated as a special category under Section 197 Cr.P.C., to protect them from malicious or vexatious prosecution. Such protection from harassment is given in public interest; the same cannot be treated as a shield to protect corrupt officials. In Subramanian Swamy v. Manmohan Singh, at para 74, it has been held that the provisions dealing with Section 197 Cr.PC must be construed in such a manner as to advance the cause of honest, justice and good governance. To quote: (SCC pp.101-02) 13 "74.... Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to the provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption."
11. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official 14 duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue. Unfortunately, the High Court missed these crucial aspects. The learned Magistrate has correctly taken the view that if at all the said view of sanction is to be considered, it could be done at the stage of trial only."
12. In this said case, the Hon'ble Apex Court clearly held that if an offence is committed by a public servant while not discharging the duty. Hence, the sanction is not necessary. Therefore, the argument addressed by the learned counsel for the petitioner that sanction is necessary cannot be accepted. On the other hand, the offences committed do not fall under the category of discharging official duty by the petitioner. Therefore, the order under revision does call for no interference by this Court.
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13. Accordingly, the criminal revision petition is dismissed. The office to send the LCR to the trial Court. The trial Court is directed to dispose of the matter as early as possible. That apart, the petitioner shall cooperate with the trial Court to expedite the trial as the offence pertains to the year 2005 to which charge sheet was filed in the year 2012.
14. Any opinion expressed by this Court in the course of this order shall not influence the trial Court while disposing of the case on merit.
15. In view of dismissal of the main petition, the application in I.A.No.1/2015, does not survive for consideration. Accordingly, I.A.No.1/2015 is disposed off.
Sd/-
JUDGE KTY