Karnataka High Court
Gonal Bhimappa vs State Of Karnataka on 19 April, 2017
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 19TH DAY OF APRIL 2017
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.3053 OF 2017
BETWEEN:
Gonal Bhimappa,
S/o. Late Hanumappa,
Aged 65 Years,
Occupation: Retired Service,
Residing at No.235,
9th Main, Road,
H.R.B.R. Layout,
1st Block, Kalyanagar,
Bangalore - 560 043.
... Petitioner
(By Shri. C. H. Jadhav, Senior Counsel for
Shri. Prasanna Kumar P., Advocate)
AND:
1. State of Karnataka,
By Vidhana Soudha
Police Station,
Cubbon Park Sub-Division,
Bangalore 560 001,
2
Represented by the
State Public Prosecutor,
High Court Building,
Bangalore 560 001.
2. Shri. Devaraju
S/o. Chikkannaiah Swamy,
Aged Major,
Deputy Secretary to
Government,
Department of Personnel
& Administrative Reforms
(Service Rules),
Karnataka Government
Secretariat,
Vidhana Soudha,
Bangalore 560 001.
R/at No.142, 19 'B' Cross,
17th Main Road, 3rd Sector,
H.S.R. Layout, Bengaluru - 560 034.
... Respondents
(By Shri. Sandesh J. Chouta, State Public Prosecutor- II)
This Criminal Petition is filed Under Section 482 of Code
of Criminal Procedure, praying that this Hon'ble Court may be
pleased to quash the Order dated 04.02.2017 passed by the
learned LXXVII Additional City Civil and Sessions Judge and
Special Judge for Prevention of Corruption Act at Bengaluru
City in Spl.C.C.No.311/2014 thereby taking Cognizance
against the petitioner, without mentioning as to for what
offence cognizance has been taken and consequently quash the
entire proceedings pending thereon in so far as the same relates
to the Petitioner/Accused No.1.
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This Criminal Petition coming on for Admission this day,
the court made the following:
ORDER
Heard the learned Senior Advocate Shri C.H. Jadhav, appearing for the learned counsel for the petitioner and the learned State Public Prosecutor-II Shri Sandesh J. Chouta appearing for the respondents.
2. The petitioner is before this court in the following circumstances:
The petitioner was said to be the erstwhile Chairman of the Karnataka Public Service Commission (hereinafter referred to as 'the KPSC', for brevity). The KPSC had invited applications from eligible candidates for filling up 162 Group 'A' posts and 200 Group 'B' posts, in respect of which examinations were conducted and results were published as on 21.03.2013. It is alleged that viva-voce was conducted from 7.5.2013 and was concluded on 27.05.2013. One Gangadharaiah who had participated in the above examination 4 had alleged that there were standing instructions to award more marks to persons who had taken Geography as one of their subjects. And that several candidates with whom the petitioner is said to have had an access had opted for the said Geography and had managed to score very high marks. Further, that there was also an arrangement where certain examination papers were evaluated by particular teachers resulting in awarding of less marks to students, etc. The said Gangadharaiah had approached the Advocate General of Karnataka regarding the malpractices and the involvement of the petitioner in the alleged acts of demanding and accepting bribery through third persons and on the basis of the said allegations and complaint, proceedings were initiated and an FIR was registered against the petitioner by the Vidhana Soudha Police Station, for offences punishable under Sections 120-B, 418, 420, 465 read with Section 34 of the Indian Penal Code, 1860 and Section 7 of the Prevention of Corruption Act, 1988, through the Deputy Secretary, DPAR, Vidhana Soudha, 5 and there were eight accused who were named, including the present petitioner. The case was then said to have been transferred to the Criminal Investigation Department and some of the accused were arrested. An interim report is said to have been submitted to the Government and since several of the accused including the petitioner were either erstwhile public servants or serving public servants, sanction was required to prosecute them and accordingly, the Investigating Agency is said to have approached the Governor of Karnataka, seeking sanction. The Governor in turn, has indicated that the present petitioner was no longer in service and any action could be taken against him in accordance with law on the basis of investigation made by the police.
It then transpires that a charge-sheet has been filed against six accused, while proceedings against Accused No.3 has been dropped since no sanction was obtained and a charge- sheet against Accused No.4 was not filed as again sanction was awaited insofar as the said accused was concerned. In all, there 6 are about 216 charge-sheet witnesses and the charge-sheet runs into 16 volumes. Cognizance has been taken by the court against Accused Nos.6 and 7 in Special Case C.C.No.311/2014 and other proceedings have also gone on such as Accused No.7 filing a discharge application and Accused No.4 claiming that there was no valid sanction and the court having reserved the matter for orders. The said Accused No.4 had filed a criminal petition challenging the very proceedings before this court in Criminal Petition No.7386/2016. It is in this background that the present petition is filed.
3. The learned Senior Advocate would raise three contentions:
Firstly, in a circumstance where the allegations against the accused are so inter-twined, it would not be possible to take cognizance against the accused in installments. Further, if the common allegations are evident from the charge-sheet against all the accused, cognizance can be taken only against all the accused and not in installments or piecemeal. In this regard, he 7 would place reliance on a co-ordinate Bench decision of this court in Crl.P.5134/2014 C/w. Crl.P.5148/2014 in the case of Nanjaiah vs. State By Lokayuktha Police Station dated 7.11.2014, wherein in identical circumstances where there were several accused, some of whom were public servants and cognizance could have been taken only after receiving an order of sanction, the Lower Court had chosen to take cognizance against some of the accused while postponing the taking of cognizance against those public servants in respect of whom an order of sanction for prosecution was awaited. This court has taken a view that when Section 120-B of the IPC was a common section that was invoked against all the accused and the allegations made against all the accused persons are inter-
twined, they are not separable in nature and therefore, the court could not have taken cognizance of the offences alleged, in installments. This position had been conceded by the learned counsel for the Lokayuktha Police in the said matter and accordingly, this court had held that the proceedings before the 8 court below were found to be bad in law and had set aside and quashed the same while observing that liberty was granted to the Investigating Officer to submit the charge-sheet afresh against the accused, along with the sanction order insofar as public servants were concerned. Hence, on the same token of reasoning, the learned Senior Advocate would submit that the present petition also would have to be allowed.
He would go one step further and point out that insofar as the sanction order to prosecute the petitioner is concerned, is warranted as even though he is no longer the Chairman of the Karnataka Public Service Commission and therefore, if though sanction under Section 19 of the Prevention of Corruption Act may not be require, Section 197 of the Cr.P.C. would yet be a bar for prosecution of the petitioner, as he was once a public servant and since the allegations against the petitioner also involve acts that have been committed by him in discharge of his official functions, it would be essential to obtain sanction 9 for prosecution albeit there are acts which may not fall squarely within the discharge of his official duties.
Thirdly he would contend that even if all the allegations in the charge-sheet go unrebutted, yet, there would be no case made out against the petitioner and on that score, the proceedings would have to be quashed. In this regard, he would submit that the entire relevant material or rather the worst scenario that could be presented by the prosecution on the basis of statement of witnesses is collated and is filed in court to substantiate this contention, the worst that could be made out against the petitioner is from the material that is now produced and it is plain that no case can be made out against the petitioner on the basis of such material and therefore the learned counsel would insist that not only the order passed by the court below would have to be quashed, but the entire proceedings pending against the petitioner also would have to be set at naught.
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4. While the learned State Public Prosecutor-II Shri Sandesh J Chouta would vehemently resist this petition. Though he does not seriously dispute the legal position insofar as the first two grounds raised by the learned Senior Advocate, he would vehemently oppose the entire proceedings being set at naught at this stage, on a prima facie perusal of the material on record. On the other hand, he would point out that there is abundant material available to bring home the charges against the accused and the same cannot be sifted on a cursory examination of the material as it were, at this stage and therefore seeks that the present petition be dismissed notwithstanding that there were preliminary objections which are raised that are only in respect of curable defects and could not vitiate the proceedings entirely, nor could it be said that there is no case made out against the petitioner even if all the allegations go unrebutted. On the other hand, if the allegations are accepted, the petitioner would have to be convicted on the face of it and hence seeks that the petition be dismissed. 11
5. In the above circumstances, this Bench would fully endorse the opinion expressed by the co-ordinate bench of this court in Crl.P.5134/2014 (supra) to the effect that if the allegations against all the accused find common ground, then it would not be possible for the court below to have taken cognizance piecemeal against some of the accused and to have postponed the question of taking cognizance against the other accused till such time sanction for prosecution was obtained. On that ground alone, the proceedings so far resulting in cognizance having been taken against some of the accused would have to be quashed.
Secondly, insofar as the petitioner is concerned, no cognizance can be taken till such time an order of sanction for prosecution is received.
The learned State Public Prosecutor-II would interject at this point to claim that the sanction may or may not be necessary and it would depend on whether the petitioner had committed acts which were in the course of his discharge of 12 duties and hence, he would contend that the State cannot be foreclosed from holding that no such sanction was necessary.
The learned Senior Advocate would point out that there is material on record to indicate that the very Investigating Officer has opined that some of the acts alleged against the petitioner are in the nature of discharge of his official duties. If that be so, sanction may be necessary under Section 197 Cr.P.C.
On the third ground whether the very proceedings against the petitioner ought to be quashed, given the voluminous material that has been gathered by the Investigating Agency, for this court to peruse the same and hold that even if all the allegations are accepted, no case would be made out against the petitioner, is an exercise that is not warranted and this court is not inclined to take such an exercise at this point of time.
6. In the result, the petition is allowed on the ground that cognizance could not have been taken by the court below in 13 piecemeal and no cognizance could be taken against the petitioner unless there was an order of sanction under Section 197 Cr.P.C., as it would appear on the face of it. The fact that the State itself had chosen to seek such sanction from the Governor is yet another circumstance which does indicate that sanction was indeed necessary.
Though the learned State Public Prosecutor seeks that a window be kept open for him to raise a contention that no such sanction is necessary, prima facie it would appear that sanction is a must to prosecute the petitioner. Accordingly, the order passed by the Special Court taking cognizance against offences alleged against the accused is hereby set aside. But, liberty is granted to the Investigating Officer to submit the charge-sheet afresh against the accused, along with sanction order insofar as the public servants in respect of whom sanction orders are necessary, including the present petitioner who is an erstwhile public servant. All other grounds are kept open. 14
Hence, the matter is remitted to the Trial Court with a direction to return the charge-sheet to the CID police with liberty to file a charge-sheet afresh, after obtaining necessary sanction as far as public servants and erstwhile public servants are concerned, along with the other accused.
Sd/-
JUDGE KS