Karnataka High Court
Ramanna S/O. Siddappa Talewad vs Karnataka State, Lokayukta Police on 25 August, 2014
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25 T H DAY OF AUGUST, 2014
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
CRIMINAL PETITION No.11537/2013
BETWEEN:
1. Sri Ramanna,
S/o Sri Siddappa Talewad,
Aged about 58 years,
Occ: Agriculture,
R/o Jambagi KD,
Tq. Mudhol,
Dist. Bagalkot
PIN 587313.
2. Sri Girishgouda,
S/o Sri Pandappa Patil,
Age: 47 years,
Occ:: Agriculture,
R/o Vatagodi,
Tq. Mudhol,
Dist. Bagalkot.
PIN 587 313.
3. Sri Sanjay Kumar S Pujari,
Age: 45 years,
Occ: Government Servant
(MD, RSSK Ltd.,)
R/o Rannanagar, Timmapur,
Tq. Mudhol, Dist. Bagalkot.
2
4. Sri Uday,
S/o Sri Venkappa Sarwad,
Age: 42 years,
Occ:: Agriculture,
R/o Malali, Tq. Mudhol,
Dist. Bagalkot - 587 313.
5. Sri Lakshman,
S/o Sri Shankarappa Channannavar,
Age: 44 years,
Occ:: Agriculture,
R/o Malali, Tq. Mudhol,
Dist. Bagalkot - 587 313.
6. Sri Ashokgouda,
S/o Sri Mahalingappa Patil,
Age: 46 years,
Occ:: Agriculture,
R/o Mahalingapura,
Tq. Mudhol,
Dist. Bagalkot.
PIN 587 313.
7. Sri Krishna,
S/o Sri Nayanna Paraddi,
Age: 46 years,
Occ:: Agriculture,
R/o Timmapur,
Tq. Mudhol,
Dist. Bagalkot
PIN 587 313.
8. Sri Ramanagouda,
S/o Sri Timmanagouda Patil,
Age: 55 years, Occ:: Agriculture,
R/o Nagaral, Tq. Mudhol,
Dist. Bagalkot - 587 313.
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9. Sri Ramesh Appasaheb Tungal,
Age: 45 years,
Occ:: Agriculture,
R/o Gulga Jambagi,
Tq. Mudhol,
Dist. Bagalkot - 587 313.
10. Sri Ananta Rao,
S/o Sri Balasaheb Ghorpade,
Age: 55 years,
Occ: Agriculture,
R/o Mudhol,
Dist. Bagalkot -587 313.
11. Sri A L Sangannavar,
Age: 56 years,
Occ:: Government Servant,
(Senior Auditor),
R/o Jamakhandi,
Dist. Bagalkot -587 313.
12. Sri S G Malwad,
Age: 52 years,
Occ:: Government Servant
(Sr. Auditor),
R/o Ramdurg,
Dist. Belgaum-591123.
... PETITIONERS
(BY SRI.S S HALALLI, ADV.)
AND:
1. The Karnataka State Lokayukta
Police,
Represented through
4
The Dy. Superintendent of Police,
Lokayuktha,
Bagalkot 587 313.
2. Lakshmangouda,
S/o Sri Rangangouda
Nyamgoudar,
Age: 45 years,
Occ:: Agriculture,
R/o Hebbal,
Tq. Mudhol,
Dist. Bagalkot.
PIN 587 313.
... RESPONDENTS
(BY SRI. MALLIKARJUNASWAMY B HIREMALLI -
ADVOCATE FOR R-1
SRI F V PATIL - ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED U/S 482
OF CR.P.C. SEEKING TO QUASH THE
PROCEEDINGS IN PCR No.08/2012 IN SO FAR AS
PETITIONERS ARE CONCERNED ON THE FILE OF
THE PRL. SESSIONS JUDGE & SPL. COURT,
BAGALKOT.
THIS PETITION COMING ON FOR HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
On a complaint filed under Section 200 of the Code of Criminal Procedure r/w Section 2(12)(V) of Karnataka Lokayuktha Act, 1984, the same came 5 to be registered in PCR No.8/2012 and matter is referred for investigation u/s 156(3) of the Code of Criminal Procedure, which is challe nged herein and made prayer to quash the proceedings. The grounds urged are as hereunder:
(i) Before filing the complaint, permission is not obtained.
(ii) The proceedings like in the instant case fall under the provisions of the Karnataka Cooperative Societies Act where a machinery is provided for enquiry and surcharge proceedings.
Therefore, the present criminal
prosecution is with ulterior motive
suffers from malice.
(iii) The second respondent is also Director of the society and he could participate in the proceedings and if any lapse is 6 there, it is for him to take appropriate steps and instead of doing his duty as Director, he has indulged in filing this complaint.
(iv) The action has been initiated for the purpose of recovery as per Annexure-J in proceedings No.DSK/SUR/87/2004-05, but the said proceedings came to be rejected.
The learned counsel for the petitioners relied upon decision in Anil Kumar & Ors. vs., M K Aiyappa & another (2013)10 SCC 705 regarding obtaining prior permission to launch a criminal prosecution against a government servant.
2. The learned counsel for the respondent No.2 submits to dismiss this petition on the 7 ground that proviso to Section 111 of the Karnataka Cooperative Societies Act provides no sanction to initiate criminal proceedings. The surcharge proceedings was initiated and disposed of on 27.5.2006 and instant proceedings is for the year 2007 to 2012. On receiving the complaint, the Lokayuktha has referred the complaint to Dy.S.P. u/s 156(3) of the Code of Criminal Procedure for investigation and it is not a conclusive proof of finding against the petitioners. If at all, as per the statement of the petitioners, if they are innocents, definitely the report would be in favour of the petitioners. It is for the petitioners to appear before the competent authority at appropriate time and seek discharge on the ground of not obtaining prior sanction.
3. The learned counsel for the first respondent submits that obtaining prior sanction 8 is only a procedural aspect and it is not fatal to the case as such. The decision in State of Bihar vs., Rajamngal Ram (2014 AIR SCW 101 referred in State by Police Inspector vs., T Venkatesh Murthy (2004) 7 SCC 763 wherein it is held that "merely because there is any omission, error or irregularity in the impugned according sanction that does not affect the validity of the proceedings, unless the Court refers the satisfaction that such an error, omission or irregularity, has resulted in failure of justice."
4. I have heard the learned counse l for the parties. As per the complaint, these petitioners have committed misappropriation of funds to the tune of Rs.164,54,75,379/-, which is a huge amount. Though the materials now made available are not sufficient for this Court to conclude either one way or the other, but it is a material for the 9 Investigating Officer to go into the matter. When a public money of this extent is said to have been misappropriated and that too when the petitioners claim that they are innocents, it is in their best interest to get a clean chit through investigation. Unless that is done, it goes to the public that justice is not done in order to unearth the misappropriation. Hence it is not for this Court to exercise power under Section 482 of the Code of Criminal Procedure at this stage.
5. In para-13 of Aiyappa case, it is held that "We find it difficult to accept that contention. Sub-Section (3) of Section 19 has an object to achieve, which applies in circumstances, where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal confirmation or revision on the ground of absence 10 of sanction. That does not mean that the requirement of obtaining sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various judgments, referred to herein above, the Magistrate cannot order investigation against the public servants while invoking power under Section 156(3) Cr.P.C." In the light of the above judgment, the case of the petitioners, it is only at the stage of investigation by Investigating Officer. The provisions make mandatory that sanction has to be secured while taking cognizance. Merely, issuance of notice or referring the matter to the Investigating Officer, as it is done in the instant case, that itself cannot be taken as a cognizance. Cognizance has to be taken on the basis of the investigation and finding, if any, against the petitioners. In the 11 circumstances, it is very premature to hold that sanction is very much required.
6. In a proceedings of this nature, where case of the petitioners falls under the provisions of Karnataka Cooperative Societies Act, the provisions therein are to be followed and not the general provisions. Section 111 of the Act reads as under:
"111. Cognizance of offences.- (1) No court inferior to that of a Magistrate of the First Class shall try any offence under this Act.
(2) No prosecution shall be instituted under this Act without the previous sanction of.-
(a) the Director of Co-operative Audit in respect of matters arising out of audit other than matters relating to co-
operative credit structure society;
(b) the Registrar in respect of all other matters including matters relating to 12 audit in respect of co-operative credit structure society.
Provided that no sanction of the Registrar or the Director of Co-operative Audit shall be necessary for filing criminal complaints against the delinquents for alleged misappropriation or embezzlement of funds of a co-operative society detected during the course of audit, inquiry or inspection or in the normal course of business of a co-operative society."
Therefore, Proviso to Section clearly spelt out that it is not mandatory to obtain sanction of the Registrar or the Director of Cooperative Audit for filing criminal complaint where it is alle ged against the delinquent of misappropriation or embezzlement of funds of the cooperative society. When this immunity is provided for which the general provisions of obtaining sanction doe s not arise. Special law for particular type of proceedings and that too providing competent officers under the said provisions, only those 13 powers and avenues have to be availed for investigation. The sanction may come later at the time of taking cognizance on the basis of report.
Under these circumstances, I do not find any good reasons to interfere. Accordingly, the petition is rejected.
The learned counsel for the respondent No.1 to file memo of appearance within four weeks.
SD/-
JUDGE akd*