Karnataka High Court
Sheshachala vs State Of Karnataka on 20 October, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
Crl.P.No.7032 of 2019
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20 TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO.7032 OF 2019
BETWEEN:
SHESHACHALA
S/O LATE V.GOVINDAIAH
AGED ABOUT 45 YEARS,
WORKING AT TALUK OFFICE
DEVANAHALLI TALUK,
DEVANAHALLI - 562 110,
AND ALSO RISIDING AT NO.6,
IST CROSS, 2ND MAIN, CHIKKA ADUGODI
BANGALORE - 560 029,
NOW PRESENT WORKING AS
REVENUE INSPECTOR
ANEGONDANAHALLI CIRCLE,
HOSAKOTE,
BANGALORE RURAL DISTRICT.
... PETITIONER
(BY SRI.S.R.HEGDE HUDLAMANE, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY THE DEVANAHALLI POLICE STATION
DEVANAHALLI,
REP BY SPP
HIGH COURT BUILDING,
BANGALORE - 560 001.
2. SMT. SRIDEVI
W/O RAVISHANKAR B.T.,
AGED ABOUT 45 YEARS,
R/A NO.101, ESTIM GARDENIYA
Crl.P.No.7032 of 2019
2
SAHAKARA NAGAR,
BANGALORE CITY 560 026.
... RESPONDENTS
(BY SRI.VINAYAKA V.S., HCGP FOR R-1
R-2 SERVICE COMPLETED V/O DATED 16.12.2019)
-----
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE FIR REGISTERED BY THE
1ST REPSONDENT FOR THE OFFENCE P/U/S 114, 175, 406, 420,
468 OF IPC IN CR.NO.86/2016 DATED 04.11.2016 PENDING
BEFORE THE ADDITIONAL CIVIL JUDGE AND J.M.F.C.
DEVANAHALLI AS PER ANNEXURE-C.
*****
THIS CRIMINAL PETITION COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
1. The petitioner who is working as a Revenue Inspector in Hanagondahalli Circle, Hosakote, Bengaluru Rural District, is before this Court seeking quashing of F.I.R. registered by the respondent-police for the offences punishable under Sections 114, 175, 406, 420, 468 of IPC in Crime No.86/2016 dated 04.11.2016 pending on the file of the Additional Civil Judge and J.M.F.C. Devanahalli.
Crl.P.No.7032 of 20193
2. Respondent-No.2-complainant though served, has remained unrepresented. A complaint was filed by respondent No.2 on 04.11.2016 alleging that the petitioner who was working as a Second Division Clerk (SDC) got introduced himself to respondent No.2 and promised her that he would procure certain documents which are required for sale of property from the State Government and in relation thereto, he received a sum of Rs.30-35 lakhs by way of cash, cheque and through online transfer. It is alleged that the petitioner did not perform the activities that he had undertaken to, instead taking advantage of ill-health of husband of respondent No.2, who was admitted to the hospital for a period of two months, the petitioner, without handing over the original documents to respondent No.2, joined as a middlemen with other persons and got sold the property belonging to respondent No.2 and Crl.P.No.7032 of 2019 4 her family for a sum of Rs.25 lakhs, when the property was valued above Rs.3 crores.
3. Sri.S.R.Hegde, learned counsel for the petitioner would submit that:
3.1. Registration of the said F.I.R. and the initiation of investigation is bad in law inasmuch as the permission/sanction required under Section 197 of Cr.P.C has not been obtained to prosecute the petitioner, since he is a Government official discharging his duties as a Second Division Clerk.
3.2. Along with the complaint no evidence is produced and the names of the witnesses have not been mentioned which is a fatal flaw in the complaint.
3.3. Though respondent No.2 made various allegations in the complaint, no documents Crl.P.No.7032 of 2019 5 have been produced by the respondent No.2, no prima facie case is made out to establish the alleged offence committed by the petitioner.
4. Per contra, Sri. Vinayak.V.S., learned HCGP would submit that:
4.1. That the allegations made against the petitioner is not as regards discharging of official duties but as regards a private transaction that the petitioner had with respondent No.2.
4.2. In a complaint as regards a private transaction or an act done otherwise in an official capacity for prosecution would not require sanction under Section 197 of Cr.P.C. He submits that the complaint not having been filed against the petitioner in the official capacity, the jurisdictional Crl.P.No.7032 of 2019 6 police as per the decision of the Hon'ble Apex Court in the case of LALITHA KUMARI VS. GOVT. OF U.P. AND OTHERS reported in AIR 2014 SC is required to register the said complaint and take up the matter for investigation. 4.3. The same having been done, the investigation has progressed and is now at an advance stage as per the information available with him, there has been transfer of money by respondent No.2 to the bank account of the mother of the petitioner. 4.4. When there is no relationship between the petitioner and respondent No.2 or her mother, it remains to be explained and investigated as to why such transfer occurs.
Crl.P.No.7032 of 20197 4.5. The transaction as regards the property belonging to respondent No.2 and the sale thereof at lower value is required to be investigated.
4.6. During the course of investigation, the statement of various persons who were involved in the offence has also been recorded.
4.7. The allegations being serious in nature, it is not required for this Court to exercise its extraordinary inherent power under Section 482 of Cr.P.C and as such, the petition is liable to be dismissed.
5. Heard Sri. S.R. Hegde, learned counsel for the petitioner and Sri. Vinayaka.V.S., learned HCGP and perused the records.
6. The points that arise for determination of this Court are:
Crl.P.No.7032 of 20198
(i) Whether merely because an accused is a Government Servant, would sanction of prosecution under Section 197 of Cr.P.C. would be required in all cases?
(ii) Does the present facts and circumstances require for this Court to interfere by exercising the extraordinary inherent jurisdiction under Section 482 of Cr.P.C. to quash the proceedings.
(iii) What order?
7. I answer the above points as under
8. Point No. (i): Whether merely because an accused is a Government Servant, would sanction of prosecution under Section 197 of Cr.P.C. would be required in all cases? 8.1. Section 197 of Cr.P.C. is a salutary provision and has been incorporated in Crl.P.No.7032 of 2019 9 Cr.P.C. so as to protect and safeguard the government servants from being targeted while discharging their official duties by way of malicious proceedings against them, the said provision also to a large extent guarantees the independence of the concerned officers and provides them protection to act in a manner required. 8.2. However, this protection is only extended to action taken by such officers during the course of discharge of his official duties or purported discharge of his official duties and cannot extend to any other matter. 8.3. Sri. S.R.Hegde Hudlamane, learned counsel for the petitioner relied upon the decision of Hon'ble Apex Court passed in Criminal Appeal No.458/2020 (arising out of SLP (Crl). No.1882/2018 in the case of D.Devaraja Versus Owais Sabeer Crl.P.No.7032 of 2019 10 Hussain more particularly para Nos. 72, 73 and 74 thereof which are reproduced hereunder for easy reference:
"72. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.
73. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction.
However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.
74. If the act alleged in a complaint purported to be filed Crl.P.No.7032 of 2019 11 against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act.
8.4. Sri.S.R.Hegde Hudlamane, learned counsel for the petitioner would submit that the interaction had by the petitioner with respondent No.2 is in his capacity as a Second Division Clerk. Therefore, no allegations let alone prosecution can be made against the petitioner. 8.5. The petitioner was discharging his official duties during the interaction with respondent No.2. If at all any complaint and/or prosecution is to be initiated against the petitioner, the same can be Crl.P.No.7032 of 2019 12 done only after obtaining sanction under Section 197 of Cr.P.C.
8.6. On perusal of Section 197 of Cr.P.C., it indicates that the prior sanction is required for cognizance to be taken and not at the time of filing of the complaint. 8.7. The present complaint has been filed by a private individual and sought for investigation into the offence alleged to have been committed by the petitioner in a private transaction between the said parties. The question of taking cognizance would arise only on investigation being completed and the charge sheet being filed before the jurisdictional Court. It is at the stage, before taking the cognizance, the Court is be satisfied that there is prior sanction under Section 197 of Cr.P.C. The requirement of sanction under Section Crl.P.No.7032 of 2019 13 197 of Cr.P.C. does not extend to the stage of filing of the complaint but only at the stage when the Court takes cognizance since there are restrictions on Court taking cognizance without prior sanction in terms of Section 197 of Cr.P.C.
8.8. At the stage of filing of the complaint, registration of the complaint or investigation thereof, there is no cognizance which is taken. It is only as observed above, subsequent to the filing of the charge sheet, the cognizance would be taken. In view thereof, the submission made by Sri. S.R.Hegde Hudlamane, learned counsel for the petitioner cannot be considered at this stage.
8.9. Be that as it may. Even on merits, the allegations which have been made is as regards private transaction between Crl.P.No.7032 of 2019 14 respondent No.2 and the petitioner as regards the sale of land belonging to the respondent family towards which payment have been made by respondent No.2 and received by the petitioner's mother. 8.10. As per the submission made by Sri. Vinayaka V.S., learned HCGP it has to be ascertained through investigation as to on what basis and for what reason the said payments were made by Complainant and received by the Petitioner's mother. This complaint cannot be said to be one relating to the discharge of the official duty or performing official duty by the petitioner. 8.11. Hence, even on this ground also, the submission made by the learned counsel for the petitioner would not survive for consideration.Crl.P.No.7032 of 2019
15 8.12. I answer the said point No. (i) by holding that:
8.13. It is not in all cases that prior sanction/permission is required for the purpose of initiating proceedings against the Government Servant. Sanction would be required only at the time when the cognizance by court is to be taken and not earlier. Secondly, if there are allegations which are made against the Government Servant which are relating to a private transaction between the Complainant and the said Government Servant there would be no sanction required under Section 197 of the Cr.P.C. at the time of filing of the Complainant or at the time of investigation or taking cognizance.Crl.P.No.7032 of 2019
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9. Point No. (ii): Does the present facts and circumstances require for this Court to interfere by exercising the extraordinary inherent jurisdiction under Section 482 of Cr.P.C. to quash the proceedings. 9.1. In view of the above discussion, the facts and circumstances established indicates that the transaction between the petitioner and respondent No.2 is a private transaction and there are disputes between respondent No.2 and petitioner. The complaint is not filed as against the petitioner to contend that there was any crime committed by the petitioner exercising his official power. Thus, I am of the considered opinion that the present facts and circumstances do not make out a case for exercise of the extraordinary inherent jurisdiction by this Court under Crl.P.No.7032 of 2019 17 Section 482 Cr.P.C. to quash the proceedings.
10. Point No. 3: What order?
In view of the above discussion, the petition is dismissed. However, liberty is reserved to the petitioner to approach the trial Court seeking for discharge on the filing of the charge sheet.
Sd/-
JUDGE SSD/Prs*