Karnataka High Court
Shri. Vinod B vs Sri. M. Nagaraj Hampole Ifs (Retd) on 24 November, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REVISION PETITION No.495/2016
BETWEEN:
Shri. Vinod B.,
S/o. Late Sri. Ommen Baby,
Aged 51 Years, Advocate,
Office & Residence at
'Beena Villa' (Upstairs),
Kuvempu Road,
Shivamogga - 577 201. ... Petitioner
(By Sri. M.S. Shyam Sundar, Advocate)
AND:
1. Sri. M. Nagaraj Hampole, IFS (Retd.)
Fathers name not known,
Aged 63 Years,
The then Secretary,
Forest Department,
Government of Karnataka,
Retd. as the Additional
Principal Chief Conservator of
Forests, Working Plans,
Aranya Bhavan, 18th Cross,
Malleshwaram,
Bengaluru - 01.
2. Smt. Meera C. Saxena, IAS (Retd).,
Fathers name not known,
2
Aged about 63 Years,
The then Principal Secretary,
Forest Environment and Ecology,
Government of Karnataka,
Currently Member,
Karnataka State Human Rights
Commission, 4th Floor,
5th Phase, M.S. Building,
Dr. B.R. Ambedkar Veedhi,
Bengaluru - 560 001. ... Respondents
(By Sri. Udaya Holla, Senior Advocate for
Sri. Vivek Holla, Advocate for R1;
Sri. L.M. Chidanandayya, Advocate for R2)
This Criminal Revision Petition is filed under Section
397 r/w 401 Cr.P.C praying to set aside the impugned order
dated 14.01.2016 passed at the stage of registration on the
unnumbered private complaint dated 06-01-2014 by the
Hon'ble Special Judge & the Special Court for Lokayuktha at
Shivamoga and revise the same by setting aside the
impugned order and direct the court below to initiate legal
proceedings against the accused in accordance with law,
either by referring the matter for investigation by the
Lokayukta police u/s 156(3) of Cr.P.C. or in the alternative,
to take cognizance of the complaint and issue process to the
accused.
This Criminal Revision Petition coming on for Hearing,
this day, the Court made the following:
ORDER
Heard Sri. M.S. Shyam Sundar, learned counsel for petitioner and Sri. Udaya Holla, learned Senior Counsel for 3 respondent No.1 and Sri. L.M. Chidanandayya, learned counsel for respondent No.2.
2. Petitioner herein initiated criminal action against respondents (hereinafter referred to as accused) by presenting a private complaint under Section 200 Cr.P.C. At the first instance, the complaint was dismissed as not maintainable by order dated 20.02.2014. The said order was challenged before this Court in Crl.RP.No.223/2014 and by order dated 21.10.2014, this Court set aside the order dated 20.02.2014 and restored the file and directed the learned Special Judge to deal with the case in accordance with law.
3. Accordingly, after remand, the learned Special Judge heard the arguments of the complainant regarding cognizance and on perusal of the complaint and the documents produced by the complainant, by the impugned order dismissed the complaint under Section 200 Cr.P.C. 4
4. Sri. M.S. Shyam Sundar, learned counsel for petitioner at the outset referring to the operative portion of the order passed by this Court in Crl.RP.No.223/2014 pointed out that this Court had remitted the matter to the trial Court to consider the issue of sanction as well as the merits of the case, in view of the change of law which required a prior sanction. It is the submission of the learned counsel that when the allegations are leveled against public servants, the learned Special Judge was primarily required to consider the requirement of sanction, without touching the said issue, the learned Special Judge has proceeded to dismiss the complaint on merits, which is patently illegal and contrary to the directions issued by this Court in Crl.RP.No.223/2014.
5. Further, referring to the complaint, the learned counsel for petitioner would submit that the allegations made therein and the various documents produced in support thereof clearly make out ingredients of the offences. Under the said circumstances, without recording 5 the sworn statement of the complainant, the learned Special Judge could not have dismissed the complaint and thus contending that the procedure adopted by the Special Judge has resulted in grave miscarriage of justice in as much as the legal action against the respondent is foreclosed at the initial stage without consideration of allegations has sought to set aside the impugned order and to remit the case to the learned Special Judge to consider the issue of sanction and thereafter to proceed in accordance with law.
6. Sri. Udaya Holla, learned Senior Counsel for respondent No.1 while referring to the sequence of events right from 05.11.1985 would submit that the allegations made in the complaint even if it is accepted, uncontroverted, do not make out the ingredients of the offence under Section 13(1)(d) of the Prevention of Corruption Act. The allegations made in the compliant indicate that respondent No.1 (accused No.1) on coming to know that the value of the trees were undervalued, took prompt action to set right the lapse and issued a revised 6 order on 19.07.2011 much earlier to the lodging of the complaint by the petitioner/complainant. Under the said circumstance, there was absolutely no basis to impute malafides against respondent No.1/accused No.1. That apart, the complaint did not contain any allegations to the effect that respondent No.1/accused No.1 obtained either for himself or for any other person, any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or that he obtained for any person any valuable thing or pecuniary advantage without any public interest. The only allegation made in the complaint is that the act of the respondents amount to dereliction of duty; but the material relied on by the petitioner proved it otherwise. Under the said circumstance, the complainant having failed to make out the basic ingredients of the offence under Section 13(1)(d) of the Prevention of Corruption Act or any other criminal offence, the learned Special Judge was justified in refusing to take cognizance and consequently, dismissing the complaint.
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7. Sri. L.M. Chidanandayya, learned counsel for respondent No.2 referred to paras 14, 15 and 17 of the complaint and would submit that in the wake of these allegations, trial Court was justified in refusing to take cognizance, and therefore, there is no scope to interfere with the impugned order.
Considered the submissions and perused the records.
8. Insofar as the contention urged by the learned counsel for petitioner that the matter in question was remanded to the learned Special Judge only for consideration of sanction, is concerned, in para 6 of the impugned order, the learned Special Judge has observed that this Court has held that since accused Nos.1 and 2 were already retired from service, sanction to prosecute them was not necessary. Even otherwise, on going through the order passed by this Court, it is noticed that having regard to the contentions urged by the parties, this Court had framed three issues for consideration. The first of the 8 issues related to the sanction and after considering the contentions of the parties, in page No.28 of the order, it is observed thus:
"Hence, it may be said that even if the respondents have come to occupy public offices presently, it would not require the petitioner to obtain any prior sanction for prosecution of offences punishable under the provisions of the PC Act, in respect of the allegations pertaining to misuse of an earlier office held by the particular respondents."
This finding, therefore, clearly indicate that this Court has clearly held that having regard to the change of office held by the respondents, sanction for prosecution of the respondents was not necessary. In view of this order, the contention of the learned counsel for petitioner that the matter was remanded to the Special Judge only for the purpose of considering the issue of sanction, is liable to be rejected.
9. Now coming on to the merits of the case as stated above, the learned Special Judge has dismissed the 9 complaint at the stage of taking cognizance. Learned counsel for petitioner has taken strong objection to the procedure followed by the learned Special Judge, contending that when a private complaint is presented under Section 200 of Cr.P.C., the learned Special Judge ought to have recorded sworn statement of the complainant in terms of Section 200 of Cr.P.C. and only thereafter could have taken a decision in the matter. This position is disputed by the learned Senior Counsel for respondent No.1 contending that without taking cognizance of the matter as provided under Section 200 Cr.P.C., the learned Special Judge could not have proceeded to record the sworn statement. Referring to the impugned order, the learned Senior Counsel for respondent No.1 would submit that the learned Special Judge having found no grounds to take cognizance of the alleged offences has rightly dismissed the complaint at the cognizance stage, and therefore, no fault could be found with the procedure adopted by the trial Court. I find merit in the submission of the learned Senior Counsel for respondent No.1.
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10. A bare perusal of Section 200 of Cr.P.C. makes it evident that only upon taking cognizance of an offence, Magistrate or the Court could proceed to record sworn statement of the complainant. As per this provision, when the Magistrate applies his mind for proceeding under Section 200 - 203 of the Code, he is said to have taken cognizance. In this context, I may refer to the elucidation of the law by the Apex Court in SUNIL BHARTI MITTAL Vs. CENTRAL BUREAU OF INVESTIGATION reported in (2015) 4 SCC 609, paras 47, 48, 51 and 52 extracted herebelow:
"47. We have already mentioned above that even if the CBI did not implicate the appellants, if there was/is sufficient material on record to proceed against these persons as well, the Special Judge is duly empowered to take cognizance against these persons as well. Under Section 190 of the Code, any Magistrate of First Class (and in those cases where Magistrate of the Second Class is specially empowered to do so) may take cognizance of any offence under the following three eventualities:11
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts; and
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
This Section which is the starting section of Chapter XIV is subject to the provisions of the said Chapter. The expression "taking cognizance" has not been defined in the Code. However, when the Magistrate applies his mind for proceeding under Sections 200-203 of the Code, he is said to have taken cognizance of an offence. This legal position is explained by this Court in Chief Enforcement Officer v. Videocon International Ltd [(2008) 2 SCC 492] in the following words: (SCC p.499, para 19) "19. The expression 'cognizance' has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means 'become aware of' and when used with reference to a court or a Judge, it connoted 'to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an 12 offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.
20. 'Taking Cognizance' does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence."
48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.
xxx xxx
51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion 13 of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e., the complaint, examination of the complainant and his witnesses if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction."
From the above principles, it follows that if the complaint does not disclose the ingredients of the criminal offences, there is absolutely no basis or justification for the learned Special Judge to take cognizance of the offence and to proceed in the matter. In the instant case, a perusal of 14 the impugned order and the sequence of the events referred therein would go to show that the respondents herein namely accused Nos.1 and 2 came to know about the alleged transaction only in the year 2011. To appreciate this contention, it may be proper to refer to the sequence of events as narrated by the learned Senior Counsel for respondent No.1 in the List of dates, which is as under:
"1. 05.11.1985:
Deputy Commissioner, Shivamogga passed an order granting 10 acres of land in Sy.No.99 situated at Kullunde Village, Mandagadde Hobli, Thirthahalli Taluk, Shivamogga District in favour of Sri.K.T.Ramaswamy.
Likewise, 20 acres of land in Sy.No.100 situated at Kullunde Village, Mandagadde Hobli, Thirthahalli Taluk, Shivamogga District was granted in favour of Sri.T.R.Arunachalam.
Since the said lands fell within the purview of Revenue Department, the lands were granted pursuant to the orders passed by the Revenue Department. The grantees paid the land premium and podi fee levied by the Revenue Department. The possession of the said lands were also delivered by the Revenue Department to the said grantees.
2. ---------:
In terms of Rule 11 of the Karnataka Land Grant Rules, 1969 ('Rules'), the forest officials were required to value the trees standing on the granted 15 land and in case of the value of trees so assessed is not more than Rs.25,000/-, the same were required to be recovered from the grantee. In case, the said assessed value exceeded Rs.25,000/-, the authorities of the forest department are required to remove the said trees from the land, within a period of 1 year from the date of the grant. In case of failure, under Rule 11(4), the authorities are required to sell the said trees to the grantee, on payment of value of such trees, as assessed by the authorities of the forest department.
3. 31.05.1988:
Since the Forest Department interfered with the peaceful possession of the grantee Sri.K.T.Ramaswamy, filed a suit OS.No.65/1986 before the Court of Munsiff & JMFC, Tirthahalli, for an order of injunction. The said suit came to be decreed vide judgment dated 31.05.1986, restraining the Forest Department from interfering with the possession of Sri.K.T.Ramaswamy and liberty was reserved to the Forest Department to enter the land for the purpose of valuing the trees standing thereon.
4. 24.03.1994:
As against the said judgment, the Forest Department, filed an appeal in RA.No.65/1988 before the Addl. Civil Judge, Shivamogga. The said appeal came to be dismissed.
5. 12.06.1999:
Sri. K.T. Ramaswamy, the grantee in respect of Sy.No.99, filed an application before the Divisional Forest Officer for permission to remove the trees standing on the land granted to him. (Pg.50 of Petition) 16
6. 18.11.1999:
Deputy Commissioner, Shivamogga addressed a letter to the Deputy Conservator of Forests to value the trees standing on Sy.No.99 and to collect the value of the tree from the grantee. (Pg.63 of Petition).
7. 29.03.2006:
Deputy Conservator of Forests addressed a letter to the Principal Chief Conservator of Forests stating that Tahsildhar has addressed a letter dated 01.10.1999 that the trees have to be valued as on the date of grant and hence as on the date of the grant, the seigniorage value of the trees standing in Sy.No.99 was at Rs.4,17,966/- (P.66 of Petition).
8. 12.03.2009:
Ultimately the issue with regard to valuation of the trees was placed before the Tree Authority consisting of (i) Conservator of Forest (as the Chairman), (ii) Deputy Commissioner, Shivamogga District and (iii) Superintending Engineer, Public Works Department, Shivamogga. The Tree Authority having taken note of the fact that even though the original grant was made in the year 1985, there were certain litigations in relation thereto, passed an order holding that the standing trees may be valued as per the seigniorage value prevailing as on the year 1996-97 and the said value may be recovered from the grantees. (Annexure - R1, Pg.17 of SOB).
9. 20.06.2009:
The Conservator of Forest addressed a letter, thereby stating the aggregating value payable by the grantee has to be in terms of the seigniorage value prevailing as on the year 1996-97.17
10. 25.09.2009/06.10.2009:
The Additional Principal Chief Conservator of Forest (Forest Resource and Maintenance) sent a recommendation to the Principal Secretary, Forest, Ecology and Environment Department, stating that in terms of the recommendation of the Tree Authority, the value of the trees (229 numbers) standing in Sy.No.99 aggregated to Rs.11,55,399/- and that the same may be recovered from the grantee, subject to approval of the State Government. Since the said order was passed in respect of two survey numbers i.e., Sy.No.99 and 100, two separate files were directed to be placed before the State Government for necessary action. (Annexure - R2, Pg.23 of SOB).
11. 07.11.2009:
The Principal Secretary, Forest, Ecology and Environment Department having taken note of the fact that the Tree Authority, Conservator of Forest and Addl. Principal Chief Conservator of Forest (Forest Resources Management) had valued the standing trees and had recommended for levy and collection of the said value from the grantee in terms of the seigniorage value prevailing as on 1996-97 and there being no other material placed before them to take a contrary view, accepted the said recommendation made by the said authorities.
12. 12.11.2009:
The Under Secretary without obtaining final approval from either the 1st or 2nd respondent, passed the final order, granting approval for collection of the said value as was determined by the Addl. Chief Conservator of Forest and also directed to close the said files. (Annexure - R3, Pg.36 of SOB).18
13. 16.07.2011:
Upon receiving anonymous call alleging that the standing trees on Sy.No.99 have been undervalued and that there has been loss to the State exchequer, the 1st respondent after procuring the closed file, opened a new file and examined the issue afresh. On such examination, the 1st respondent arrived at a conclusion that the value fixed by the authorities and the order dated 12.11.2009 issued by the Under Secretary without obtaining the final approval of the Principal Secretary to the Government (Forest, Ecology and Environment Department) was inappropriate and accordingly passed an order directing withdrawal of the said order and directed the concerned authority to value the trees in terms of the value as it existed as on the date of granting of permission for felling of the trees.
Note Sheets are at Annexure - R4, Pg.37 of SOB.
14. 19.07.2011:
A revised order was issued by the Under Secretary, withdrawing the earlier order dated 12.11.2009 and to value the trees in terms of the value as it existed as on the date of granting of permission for felling of the trees. (Annexure - R4, Pg.40 of SOB).
15. 28.09.2011:
In terms of the said Revised Order dated 19.07.2011, the Deputy Conservator of Forest recalculated the value payable by the grantee and issued a fresh demand notice dated 28.09.2011, thereby demanding the grantee to pay the differential amount of Rs.1,03,87,929/- (after deducting the amount of Rs.11,55,399/- already paid by the grantee). (Pg. 120 of Petition) 19
16. 02.01.2012:
The said demand notice as well as the revised order dated 19.07.2011, came to be challenged by the grantee before this Hon'ble Court in WP No.48169/2011 and this Hon'ble Court has passed an interim order staying the said revised order as well as the demand notice and the said writ petition is still pending. (Pg.122 of Petition)
17. 06.07.2013:
An un-numbered complaint dated 06.07.2013 came to be lodged by the petitioner herein before the Hon'ble Special Court, Lokayuktha, Shivamogga, alleging that the respondents herein had indulged in corrupt practices, which are punishable under the provisions of Indian Penal Code, 1908 (IPC for short) as well as the Prevention of Corruption Act, 1988 (PC Act for short).
In view of the fact that the respondents were public servants and that no prior sanction was obtained prior to lodging of the said complaint, the petitioner herein withdrew the said complaint.
18. 04.10.2013 and 12.06.2014:
Since the offences covered under IPC were also included in the said complaint, the petitioner herein made representations to the State Government seeking sanction for prosecution of the respondents, as required under Section 197 of the Criminal Procedure Code, 1973.
19. 06.01.2014:
Complaint in PCR No.6/2013 was lodged by the petitioner herein before the Hon'ble Special Court, Lokayuktha, Shivamogga, alleging that the respondents herein had indulged in corrupt practices, which are punishable under the provisions of Indian 20 Penal Code 1908 as well as the Prevention of Corruption Act, 1988. (Document No.2, Pg.38 of Petition) The only allegation that has been made is that there has been dereliction of duty on the part of this respondent while passing the 1st order and that the same would amount to criminal misconduct in terms of Section 13 of the PC Act.
20. 20.02.2014:
On the ground that the Complainant had not sought sanction under PC Act, the said complaint came to be dismissed by the learned Magistrate as not maintainable.
21. 21.10.2014:
Challenging the said order, the petitioner filed Cr.R.P.No.223/2014 before this Hon'ble Court. This Hon'ble Court having heard the said petition along with batch of other petitions and having come to the conclusion that the respondent had superannuated from service, passed an order setting aside the order of the Magistrate and restored the complaint to file to be dealt with in accordance with law. (Document No.9, Pg.189 of Petition).
22. 14.01.2016:
After the said remand, the Special Court Judge for Lokayukta, Shivamogga has now passed the impugned order, thereby rejecting the complaint filed by the Petitioner on the ground that the respondents had acted in a bona fide manner and that there was no malafides intention on the part of the respondents while taking such decisions and there was lack of mensrea on their part and that no offence had been made out against the respondents. The Hon'ble Court has further noted that there is no material to show that the accused have gained monetary gain (Document No.1, Pg.21 of Petition). The said order is under challenge in the present petition.21
23. 22.10.2018:
The State Government having considered the representation submitted by the Petitioner seeking sanction and having come to the conclusion that the respondents had acted in bona fide manner while taking such decisions while holding their office and there was lack of mensrea on their part, no offence had been made out by the respondents and hence, by exercising the powers under Section 197(1) of the Cr.P.C., rejected the said request for grant of sanction for prosecution. (Annexure - R5, Pg.41 of SOB)"
The above facts are in conformity with the averments made in the complaint which go to show that the respondents herein stepped in much earlier to lodging of the complaint by the petitioner. The records reveal that as early as on 16.07.2011, respondent No.1 re-opened the file, which was already closed and on examination of the record arrived at a conclusion that the value fixed by the authorities and the order dated 12.11.2009 issued by the Under Secretary without obtaining the final approval of the Principal Secretary to the Government (Forest, Ecology & Environment Department) was inappropriate and accordingly, he passed an order directing withdrawal of the 22 said order and further directed the concerned authority to value the trees in terms of the value as it existed as on the date of granting of permission for felling of the trees. This order is followed by the revised order issued on 19.07.2011.
11. It is not the case of the complainant that at the time of passing the above order, respondents/accused Nos.1 and 2 had acted with criminal intent to make unlawful gain through corrupt practices.
12. As a matter of fact, as on the date of passing the above order, there were no allegations against the respondents and issue itself was closed insofar as the respondents were concerned. Even otherwise, the complainant does not impute any malafides or corrupt motive to the respondents. As already stated above, the allegations in the compliant proceed on the basis that the alleged acts of the respondents amounted to dereliction of their duty, which implies that in the course of discharge of their duties, respondents passed the above orders, which in the circumstances of the case did not cause any loss to the 23 State Exchequer nor did they confer any monetary benefit on the respondents.
13. In that view of the matter, the essential ingredients of the offences having not been made out, the learned Special Judge was justified in refusing to take cognizance of the offences so as to proceed in the matter. Under the said circumstances, I do not find any error or infirmity whatsoever in the impugned order warranting interference under Section 397 of Cr.P.C.
Having regard to the facts and circumstances noticed above, no purpose would be served either in remanding the matter or continuing with the proceedings against the respondents, lest it would turn out to be an abuse of process of Court.
For the above reasons, I am not inclined to intervene in the matter. Consequently, the petition is dismissed.
Sd/-
JUDGE SV