Karnataka High Court
Central Bureau Of Investigation vs Shri B S Shantakumar on 18 September, 2017
Author: Rathnakala
Bench: Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MRS.JUSTICE RATHNAKALA
CRIMINAL REVISION PETITION NO.504/2010
BETWEEN:
CENTRAL BUREAU OF INVESTIGATION
(INVESTIGATING AGENCY CONSTITUTED UNDER
DELHI SPECIAL POLICE ESTABLISHMENT ACT, 1946)
REPRESENTED BY
SUPERINTENDENT OF POLICE
ANTI-CORRUPTION BRANCH
NO.36, BELLARY ROAD
GANGA NAGAR
BANGALORE - 560 032. ...PETITIONER
(BY SRI P.PRASANNA KUMAR, ADV.)
AND:
1. SHRI B.S.SHANTAKUMAR
S/O LATE SUBBARAYA SHETTY
NAGAJOTHI, II PARALLEL ROAD
DURGIGUDI
SHIMOGA
2. SHRI T.R.ASHWATHNARAYANA
S/O LATE RAMASWAMI SHETTY
SRINIDHI, I PARALLEL ROAD
DURGIGUDI
SHIMOGA
3. SHRI T.A.RAM PRASAD
S/O SHRI T.R.ASHWATHNARAYANA
SRINIDHI, I PARALLEL ROAD
DURGIGUDI
SHIMOGA
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4. SHRI S.S.NAGAPPA
S/O LATE SOMEGOWDA
RETD. P.S.I. & FORMER S.H.O.
RURAL P.S. SHIMOGA
R/O 4TH CROSS, SHESHADRIPURA
SHIMOGA. ...RESPONDENTS
(BY SRI SHIVASWAMY, ADV. FOR R1 AND R2;
SRI K.T.NAGENDRA, ADV. FOR R3;
SRI HONNAPPA, ADV. FOR R4)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE
ORDER DATED 26.09.2009 PASSED BY THE XXXII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR
CBI CASES, BANGALORE IN SPL.C.C. NO.44/2004.
THIS CRIMINAL REVISION PETITION HAVING BEEN
RESERVED ON 07.09.2017 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The order of the Special Court in discharging accused Nos.2 to 5 from prosecution is under challenge in this revision petition.
2. For the purpose of convenience, parties will be referred to as per their ranking before the Trial court/Special Court.
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3. The Superintendent of Police, ACB, Bangalore, CBI charge sheeted five accused persons in respect of the offences under Sections 120B read with Section 420 read with Sections 511, 193, 196, 201, 209 and 218 of IPC and Sections 13(2) r/w Sec.13(1)(d) r/w Sec.15 of the Prevention of Corruption Act, 1988.
4. The allegation is, the accused Nos.1 to 5 during 1993 entered into a criminal conspiracy to cheat M/s.New India Assurance Co.Ltd., Shimoga, in the matter of availing third party compensation in respect of injury suffered by first accused in a motor vehicle accident. In furtherance of the same, first accused on 23.9.1993 preferred a claim petition before the MACT in MVC No.706/1993 seeking compensation of Rs.35 lakhs. He very well knew that the vehicle which met with the accident was his own car bearing registration No.CTQ 6545 (Ambassador shell white) but gave false details that the vehicle was KA-14/1486 (Taxi-Ambassador blue) -4- owned by A-2 which was driven by A3 in the evening of 24.3.1993. The first accused had parked his car bearing registration No.CTQ-6545 without adequate precautionary measures which strolled backwards causing permanent disability. Further, A2 and A3 in pursuance of the conspiracy gave false evidence by providing the details of the car under the ownership of A- 2, which is a taxi purported to have been parked by A-3 at the compound of Sri Venkataramana temple, Nawale, Shimoga.
5. It is the further case of the prosecution that, A-4 being the son of A-3, knowing fully well the dishonest intention, after a gap of 11 days lodged a false complaint on 4.4.1993 before the Rural Police Station, Shimoga where accused No.5 was the SHO. This complaint of accused No.4 was to facilitate the case that A-1 suffered injuries out of accident involving the car No.KA-14/1486. -5-
6. It is the further allegation that A-5 investigated Crime No.96/93 registered on the strength of false complaint in a bias manner and submitted final report that the accident was caused by A-3 in the manner reported in the complaint, thus, favoured A-1 to prefer fraudulent claim. Knowing fully well that the car involved in the accident was CTQ-6545 (Ambassador shell white), he substituted the car No.KA-4/1486 (Ambassador blue). Without examining any independent witnesses from the locality, he cited the family members and family friends of the accused as witnesses in the charge sheet filed against Ashwathanarayana in respect of the offence under section 338 IPC. The colour of the car was deliberately avoided while recording the statement under section 161 Cr.P.C.
7. It is the further allegation that, in furtherance of the same conspiracy at the time of trial initiated by A-5 in CC 3561/1993, A-3/driver appeared before the court -6- on 2.7.1993, falsely pleaded guilty and the accusation was true to facilitate A-1 to get compensation by cheating the insurance company. Thus, all the accused nos.1 to 5 committed offences under Sections 120B read with Sections 193, 196, 201, 209, 218 and 420 of IPC r/w 511 of IPC and Section 13(2) r/w Sec.13(1)(d) r/w Sec.15 of the Prevention of Corruption Act, 1988. Accused No.1 committed offences under Sections 120-B, 193, 196, 201, 209 and 420 r/w 511 of IPC. Accused Nos.2 to 4 committed offences under Sections 120-B, 193, 196 and 201 of IPC and accused No.5 committed offences under Sections 120B, 193, 196, 201 and 218 IPC and Sections 13(2) r/w Sec.13(1)(d) r/w Sec.15 of the Prevention of Corruption Act, 1988.
8. It was mentioned in the charge sheet that A-5 since no longer was a public servant, no sanction was taken for the prosecution.
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9. After submission of the charge sheet, A-1 Dattathreya Gupta expired and case against him stood abated. A-2 to A-5 filed application under Sections 227 and 239 of Cr.P.C. before the Special Court seeking their discharge from the charges alleged against them on the ground that the claim petition was adjudicated by the concerned MACT. Hence the court could not have taken cognizance of the criminal case under Section 195(1)(b)(ii) of Cr.PC.; in the absence of any complaint under Section 340 of Cr.P.C., no criminal case can be registered; for prosecution of A-5, a Police officer, sanction under Section 170 of the Karnataka Police Act and 19(1)(b) of PC Act 1988 was required.
10. The Sessions Judge after giving audience to both sides upheld the contention of the accused and discharged them of the charges.
11. Sri.P.Prasanna Kumar, learned Spl.P.P. for the petitioner submits, the accused had filed discharge -8- petitions on the grounds, 1) the claim petition M.V.C.No.706/93 was adjudicated by the Tribunal and no cognizance could be taken in respect of the offence alleged in view of the bar under section 195(1)b)(ii) of Cr.P.C.; (2) there was no complaint under Section 340 of Cr.P.C., hence, no criminal case could be registered by CBI; (3) Sri.Nagappa/A-5 was working as the Police Officer, hence, sanction under Sections 170 of the Karnataka Police Act, 1963 and 19(i)(c) of the P.C.Act was required to prosecute him. The trial court, in the order impugned observes that sanction for prosecution against A-5 was required for his prosecution under Section 170 of K.P.Act, 1963 and Section 19(1)(c) of the P.C.Act. Of course, the trial court held that accused have committed offence under Section 120B read with Sections 420, 196, 201, 209, 218 and 501 of IPC. But in the absence of complaint under Section 340 of Cr.P.C., the Court held that it was barred from taking cognizance as per the provisions of Section 195 of Cr.P.C. The trial court lost -9- sight of the position of law laid down by the apex court in State of Kerala -vs- V.Padmanabhan Nair reported in 1999 SCC (Cri) 1031 wherein it was held that no previous sanction is necessary to prosecute a public servant under Section 122 of Kerala Panchayuat Act which is similar to Section 120 of Karnataka Police Act 1963 and he cannot claim any immunity on the ground of want of sanction, if he ceases to be a public servant on the date when the court took cognizance of the offence.
12. The Apex Court in its judgment in State of Kerala -vs- M.M.Manikantan Nair reported in AIR 2001 SC 2145 while referring to Kerala Panchayat Act had held that, sanction is not necessary in case of retired public servant. In its judgment reported in AIR 2005 SC 2119 in the matter of Iqbal Singh Marwah and Another -vs- Meenakshi Marwah and Another, the Apex Court had held that, Section 195(1)(b)(ii) of Cr.P.C. would be attracted only when the offences enumerated in the said
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provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e., during the time when the document was in custodia legis. But in the present case, it is not the allegation that the documents have been fabricated in custodia legis. The allegation is, production of false and fabricated documents in the court to obtain financial benefits causing loss to insurance company, hence, complaint under Section 340 of Cr.P.C. was not essential and the trial court ought to have rejected the prayer of the accused persons and should have proceeded by framing the charge.
13. Learned counsel for R-3 Sri.K.T.Nagendra seeks to maintain the order of the Special Court for the reasons assigned in the body of the order impugned.
14. With the above rival submission, perused the impugned order.
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15. The judgments of the Apex Court in Swaran Singh -vs- State of Punjab reported in AIR 2000 SC 2017 and N.Natarajan -vs- B.K.Subba Rao reported in AIR 2003 SC 541 have overweighed for the learned Special Judge wherein it was held that Section 340 of CP.C. is to be invoked to get over the bar imposed under Section 195 of Cr.P.C., which requires a complaint to be lodged in respect of the alleged offences. The rationale of the learned Special Judge was, since allegation was only about the attempt to commit offence before the MACT in connection to the proceedings before the JMFC court, the procedure under Chapter XXVI of Cr.P.C. was to be complied and Section 340 of Cr.P.C. was mandatory. It is clear that the learned court misread the prosecution case and applied the requirements of Section 340 of Cr.P.C. to the case before it as if it was dealing with the allegation that offence was committed in respect of the documents in the custody of the court. But the entire allegation pertains to conspiracy among the accused to
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create false evidence to make illegal gain by way of compensation. On a reading of Section 195(1)(b) of Cr.P.C., it is in reference of offences under Sections 193 to 197 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228.
16. Further Section 170 of K.P.Act, 1963 is relied to hold that sanction was necessary to prosecute accused No.5/retired Police Officer, who investigated the case at the relevant point of time. The above statutory provision reads thus:
"170. Suits or prosecution in respect of acts done under colour of duty as aforesaid not to be entertained without sanction of Government.- (1) In any case of alleged offence by the Commissioner, a Magistrate, Police Officer or Reserve Police Officer or other person, or of a wrong alleged to have been done by such Commissioner, Magistrate, Police Officer or Reserve Police Officer or other person, by any act done under colour or in excess of any
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such duty or authority as aforesaid, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained except with the previous sanction of the Government".
But on the showing the above provision, it does not apply universally to the public servants retired and in service. A plain reading of the above provision applies to the persons holding the official position as Commissioner, Magistrate, Police Officer or Reserve Police Officer. The word 'or other person' cannot be interpreted to apply to the retired official unless it is expressly stated so by the provision.
17. A co-ordinate Bench of this court in D.H.Chikkadoddaiah -vs- Nataraj reported in ILR 1973 Kar 911 held that, if acts done by a Police Officer under colour or in excess of his duty or authority as provided by Section 170(1) of the Karnataka Police Act
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1963, no sanction is required. It has been the consistent position of law that sanction is not required to prosecute a public person if acts alleged against him was done by him exceeding his power (State of Maharashtra -vs- Devahari Devasingh Pawar and Others [{2008} 2 SCC 540]; State of Maharashtra -vs- Narhar Rao-AIR 1966 SC 1783). The Apex Court in Rajib Ranjan and Others -vs- R.Vijaykumar reported in (2015) 1 SCC 513, following the earlier judgments (Shreekantiah Ramayya Munipalli - vs- State of Bombay- AIR 1955 SC 287; Shambhoo Nath Misra -vs- State of U.P.- (1997) 5 SCC 326 held that, sanction for prosecution is not necessary when the act of public servant which cannot be treated as part of his official duty under Section 197 of Cr.P.C. will not be attracted.
18. Furthermore, it is also the legal position that to prosecute a public servant who is not in service on the date the court takes cognizance for the offence under the
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Prevention of Corruption Act, sanction is not necessary under Section 197 of Cr.P.C. The court fell into error in holding that, sanction was required to prosecute A-5. It was not within the periphery of his lawful authority to fabricate documents in the guise of investigation and concoct a false final report. The order of the Special Court is totally perverse and cannot be sustained.
Revision Petition is allowed. The order in Spl.C.C.No.44/2004 dated 26.9.2009 by the XXXII Addl.City Civil and Sessions Judge, Bangalore City, is hereby set aside. The Trial Court is directed to procure the accused persons and frame the charges on the basis of material available on record. The matter since is of the year 2004, trial shall be expedited.
Sd/-
JUDGE KNM/-