Karnataka High Court
Dr D B Anjutigi vs Dr D Chandrashekar on 10 October, 2023
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NC: 2023:KHC:37596
CRL.P No. 493 of 2018
C/W WP No. 2954 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CRIMINAL PETITION NO. 493 OF 2018
C/W
WRIT PETITION NO. 2954 OF 2018 (GM-RES)
IN CRL.P.NO.493/2018:
BETWEEN:
1. DR. D.B. ANJUTIGI
S/O LATE DHAREPPA BIMANNA,
AGED ABOUT 64 YEARS,
RETIRED SENIOR SPECIALIST,
R/O SANGOLLIRAYANANAGAR,
EXTENSION OF THEJESWININAGAR,
FRONT OF GANESHA TEMPLE,
DHARWAD-581204
2. DR. N.VENKATESHMURTHY
S/O NARASAPPA,
AGED ABOUT 48 YEARS,
PRESENTLY SERVING AS
SENIOR MEDICAL OFFICER,
Digitally
signed by TALUK HOSPITAL PAVGADA,
SUMA TUMKUR DISTRICT-572117
Location:
HIGH 3.
COURT OF DR. DIWAKAR PRASAD B.M.
KARNATAKA D/O CHIKKAMUNIYAPPA,
AGED ABOUT 40 YEARS,
SPECIALIST,
GENERAL HOSPITAL,
SHIVAPUARA TALUK,
KOLAR DISTRICT-563133
...PETITIONERS
(BY SRI. SAGAR B.B., ADVOCATE)
AND:
DR. D. CHANDRASHEKAR
S/O LATE DODDA SETTY,
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NC: 2023:KHC:37596
CRL.P No. 493 of 2018
C/W WP No. 2954 of 2018
AGED ABOUT 60 YEARS,
VIJAYA, NO.35, 2ND CROSS,
BHAVANI ROAD, RAMAMURTHYNAGAR,
BENGALURU-560016
...RESPONDENT
(BY SRI. P.N. NANJAREDDY, ADVOCATE)
THIS CRL.P IS FILED UNDER SECTION 482 OF THE CODE OF
CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE ORDER
DATED 22.12.2017 PASSED IN SPL.C.C.NO.211/2017
(P.C.R.NO.2/2012) PENDING ON THE FILE OF PRINCIPAL DISTRICT
AND SESSIONS JUDGE AT CHIKKABALLAPUR VIDE ANNEXURE A
ONLY IN SO FAR AS THE PETITIONERS ARE CONCERNED.
IN W.P.NO.2954/2018:
BETWEEN:
1. SRI. H.R. JAGADEESH
S/O LATE M. REVANNA,
AGED ABOUT 65 YEARS,
RETIRED CHIEF EXECUTIVE OFFICER,
DEVIKA RANI RORICH ESTATE,
KANAKAPURA ROAD,
BENGALURU
PRESENTLY RESIDING AT
NO.42, ASHTAGRAMA LAYOUT
BASAVESHWARNAGAR
BANGALORE-79.
2. DR. S. VIJAYA
W/O RAMESH,
AGED ABOUT 48 YEARS,
PRESENTLY SERVING AS SPECIALIST,
DISTRICT HOSPITAL,
CHIKKABALLAPUR-562105
3. SRI. MAHADEVU B
S/O M. BASAVAIAH
AGED ABOUT 54 YEARS,
NOW SERVING AS F.D.A,
OFFICE OF THE ADDITIONAL DIRECTOR,
KARNATAKA STATE DRUG LOGISTIC
AND WAREHOUSING SOCIETY,
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NC: 2023:KHC:37596
CRL.P No. 493 of 2018
C/W WP No. 2954 of 2018
DR. SIDDAIAHPURANIK ROAD,
MAGADI ROAD,
BANGALORE-79.
...PETITIONERS
(BY SRI. SAGAR B.B., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
HEALTH AND FAMILY WELFARE DEPARTMENT,
VIKASA SOUDHA,
BENGALURU-01,
REPRESENTED BY ITS SECRETARY
2. DR. D. CHANDRASHEKAR
S/O LATE DODDA SHETTY,
AGED ABOUT 59 YEARS
VIJAYA ROAD,
NO.35, 2ND CROSS,
BHAVANI ROAD,
RAMAMURTHYNAGAR,
BENGALURU-560016.
...RESPONDENTS
(BY SRI. VENKATA SATYANARAYANA, HIGH COURT GOVERNMENT
PLEADER FOR RESPONDENT NO.1;
SRI. P.N. NANJA REDDY, ADVOCATE FOR RESPONDENT NO.2)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE
OF CRIMINAL PROCEDURE, 1973 PRAYING TO CALL FOR RECORDS
IN SPL C.C.NO.211/2017 (PCR No.2/2012) PENDING ON THE FILE OF
PRINCIPAL DISTRICT AND SESSIONS JUDGE AT CHIKKABALLAPUR
VIDE ANNEXURE 'Q' AND QUASH THE IMPUGNED ORDER DATED
22.12.2017 PASSED IN SPL C.C.No.211/2017 (PCR NO.2/2012)
PENDING ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS
JUDGE AT CHIKKABALLAPUR VIDE ANNEXURE-Q ONLY IN SO FAR AS
THE PETITIONERS ARE CONCERNED.
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NC: 2023:KHC:37596
CRL.P No. 493 of 2018
C/W WP No. 2954 of 2018
THESE PETITIONS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioners in Crl. P. No.493/2018 were the accused Nos.1, 2 and 3 while the petitioners in W.P. No.2954/2018 were accused Nos.6, 4 and 5 in Spl. C.C. No.211/2017 (PCR No.2/2012) pending trial before the Principal District and Sessions Judge, Chikkaballapura (henceforth referred to as 'the Trial Court').
2. The petitioners' in these petitions have challenged the Order dated 22.12.2017 in PCR No.2/2012 by which the Trial Court took cognizance of the offences punishable under Sections 13(1)(c), 13(2) of the Prevention of Corruption Act, 1988 (for short 'P.C. Act') and under Sections 120B, 167 and 420 of the Indian Penal Code, 1860 (for short, 'IPC') against them and directed the office to register case against them. Pursuant to the said direction, Spl.C.C. No.211/2017 was registered against the petitioners herein.
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3. The respondent in Crl.P. No.493/2018 / respondent No.2 in W.P. No.2954/2018 (henceforth referred to as 'the complainant') filed a private complaint in PCR No.2/2012 stating that during 2007-2008, Special Medical Camps under the Member of Parliament Local Area Development (MPLAD) Fund were conducted. The complainant sought information about the camp so conducted from accused No.1, who directed him to obtain information from the concerned Taluk Health Officer, which he obtained. He claimed that the information furnished by Taluk Health Officer, Madhugiri and Koratagere Taluks disclosed that accused No.1 had not conducted any Specialist camp during 2007-08 in Koratagere and Madhugiri. He alleged that accused No.1 had misappropriated sum of Rs.2,60,000/-. The complainant later sought information from accused No.2 / District Health and Family Welfare Officer, Chikkaballapur and District Programme Managing Officer regarding the specialist camp held at Sidlaghatta on 31.03.2008 and 01.04.2008, but no information was provided and he was -6- NC: 2023:KHC:37596 CRL.P No. 493 of 2018 C/W WP No. 2954 of 2018 passing the buck. However, the incumbent Taluk Health Officer, Sidlaghatta and the District Health and Family Welfare Officer, Chikkaballapur, informed the complainant that there was no information about the conduct of the camps. He placed on record, a list of Specialists who attended the camps that was signed by accused No.3 which was attested by accused No.2 and accepted by accused No.1. Therefore, he alleged that the accused Nos.1 to 3 had misappropriated a sum of Rs.1,30,000/-. The complainant further alleged that accused Nos.1 and 4 had created a Charge Transfer Certificate on 18.03.2009 to take over the administrative functions of the General Hospital, Sidlaghatta. He claimed that under Rule 12 of Karnataka Civil Service (Conduct) Rules, 1966 and the Karnataka Finance Code-100, a post of Administrative Medical Officer had to be created, which was not done. He therefore alleged that there was enormous illegality in creating the Charge Transfer Certificate. Turning the tirade against accused No.4, he alleged that accused No.4 had drawn fund of Rs.8,99,500/- on 23.03.2009 towards -7- NC: 2023:KHC:37596 CRL.P No. 493 of 2018 C/W WP No. 2954 of 2018 the purchase of a generator for the hospital. Thus he alleged that accused No.1 and accused No.4 had colluded with each other to draw and disburse the Government fund of Rs.8,99,500/- without authority and thus they misappropriated it. He further alleged that accused No.4 again drew Rs.8,94,030/- for purchase of instrument and furniture to the hospital which was disbursed on 19.06.2009 without proper sanction from Competent Authority. He claimed that accused No.5 visited the General Hospital, Sidlaghatta on 06.01.2010 on the oral directions of accused No.6 without obtaining order in writing from the Competent Authority or from the Chief Vigilance Officer. He alleged that in the report submitted by accused No.5 and accused No.6, to the Disciplinary Authority in a departmental enquiry against complainant, they had accused complainant of misappropriating Rs.8,94,030/- and Rs.8,99,500/-. He claimed that this was evidence against the evidence of accused No.5 who stated in the enquiry that accused No.4 had drawn and disbursed the said amount. Thus the complainant claimed -8- NC: 2023:KHC:37596 CRL.P No. 493 of 2018 C/W WP No. 2954 of 2018 that he was implicated in the case and the Disciplinary Authority imposed punishment on him.
4. The Principal District and Sessions Judge, Chikkaballapur, by order dated 17.01.2013, initially took cognizance and referred the matter under Section 156(3) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C') for investigation by Lokayukta Police, Chikkaballapur. This was challenged by the petitioners in Crl. P. No.493/2018 and petitioner No.2 in W.P. No.2954/2018 before this Court in Crl.P. No.6571/2013. The petitioner Nos.1 and 3 in W.P. No.2954/2018 filed Crl.P. No.6572/2013. This Court in terms of two separate orders dated 11.01.2017, disposed off the said Criminal Petitions and held that the order dated 17.01.2013 passed by the District and Sessions Judge, Chikkaballapur, (for short, 'the Sessions Court') in PCR No.2/2012 taking cognizance of the offences and then referring the matter for investigation by the Lokayukta Police was lopsided and therefore, directed the Sessions Court to proceed in -9- NC: 2023:KHC:37596 CRL.P No. 493 of 2018 C/W WP No. 2954 of 2018 accordance with law from the stage of taking cognizance of the offences. This Court, however, left the question of obtaining prior sanction for prosecution of the petitioners' to be considered by the Sessions Court.
5. Later, the Trial Court in terms of the order dated 22.12.2017 in PCR No.2/2012, took cognizance of the offences against the accused / petitioners' and in the course of doing so, held that in view of the judgment of the Hon'ble Apex Court in the case of Subramanian Swamy v. Manmohan Singh and another [2012 (3) SCC 64] held that if official superiors of the accused did not grant sanction within four months from the date of request, the sanction is deemed to have been granted. Consequently, it held that there was sufficient material to try the accused for the offences punishable under Sections 13(1)(c) and 13(2) of the P.C. Act and Sections 120B, 167 and 420 of IPC and directed the office to register the case against the accused / petitioners' herein in Register No.III and issued process to the accused. Pursuant to the said
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NC: 2023:KHC:37596 CRL.P No. 493 of 2018 C/W WP No. 2954 of 2018 order, Spl.C.C. No.211/2017 was registered against the accused / petitioners'.
6. The petitioners being aggrieved by the said order of the Trial Court taking cognizance and issuing process to them, have filed these petitions.
7. Learned counsel for the petitioners' reiterated the contentions urged in the petitions and contended that the impugned order of the Trial Court taking cognizance without sanction deserves to be interfered with, as by the time the Trial Court took cognizance, the request for sanction was already rejected in respect of petitioner Nos.1 to 3 in both these petitions on 07.02.2013, 10.05.2013 and 06.03.2013 respectively. Therefore, he submits that the Trial Court should not have taken cognizance without sanction under Section 19 of the P.C. Act. He further contended that the complainant had based his complaint on the materials sourced from a departmental enquiry taken out against him, where the charges were proved and the complainant was handed
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NC: 2023:KHC:37596 CRL.P No. 493 of 2018 C/W WP No. 2954 of 2018 down punishment of reduction of two increments with cumulative effect. He, therefore, submits that the instant private complaint is nothing but an action in vengeance by the complainant after he retired from service.
8. Per contra, the learned counsel for the respondent No.2 - complainant submitted that the complainant had made a request for grant of sanction to prosecute the petitioners on 13.08.2012 and since the request was not granted within four months, a private complaint was lodged on 26.12.2012 which is after a lapse of four months as mandated by the Hon'ble Apex Court of India in the case of Subramanian Swamy, supra. He further submitted that the Trial Court after considering the material on record found a prima facie case to prosecute the petitioners for the offences punishable under Sections 13(1)(c) and 13(2) of P.C. Act read with Section 120B, 167, 420 of IPC. He submits that the Trial Court had gone through the documents placed on record which clearly disclosed that the accused Nos.1 to 3 had misappropriated
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NC: 2023:KHC:37596 CRL.P No. 493 of 2018 C/W WP No. 2954 of 2018 a sum of Rs.3,90,000/- and Rs.8,94,303/- for purchase of furniture and a sum of Rs.8,99,500/- for the purchase of generator apart from misappropriating the sum of Rs.3,99,000/-. He therefore, submits that there is no error committed by the Trial Court in taking cognizance of the offence.
9. I have considered the submissions made by the learned counsel for the accused and the learned counsel for the complainant.
10. The complainant, who was an erstwhile employee of the Department of Health and Family Welfare, was proceeded against in a departmental enquiry for alleged misconduct and in terms of an order dated 08.04.2013, he was handed down punishment of reduction of two increments with cumulative effect. A perusal of the private complaint lodged by the complainant indicates that he had sourced some material and oral evidence extracted during the course of such departmental enquiry and also other material collected after he retired from service and
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NC: 2023:KHC:37596 CRL.P No. 493 of 2018 C/W WP No. 2954 of 2018 alleged that all the accused had misappropriated the funds of the State Government which was earmarked under Member of Parliament Land Area Development fund. The complainant has placed on record information secured by him under the Right to Information Act, 2005, which formed the basis for filing the private complaint. However, he cannot seek to prosecute the accused for acts which were the subject matter of the departmental proceedings. The complainant has not called in question the punishment imposed upon him based on the enquiry report. Thus, he cannot A perusal of the private complaint does indicate traces of alleged commission of the offence punishable under Section 13(1)(c) and Section 13(2) of the P.C. Act and therefore, the complainant had made out a prima facie case to prosecute the petitioners/accused.
11. In so far as the contention that the Trial Court would not have taken cognizance of the offence against the petitioners/accused on the ground that the sanction was deemed to have been granted, the submission of the
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NC: 2023:KHC:37596 CRL.P No. 493 of 2018 C/W WP No. 2954 of 2018 learned counsel for the accused that the order of the State Government rejecting the sanction even before taking cognizance, render the order taking cognizance illegal.
The claim of the learned counsel for the petitioners/accused that the order refusing to grant
sanction prior to the Trial Court taking cognizance, came in the way of taking cognizance, cannot be accepted for the simple reason that the request for sanction was made on 13.08.2012 by the concerned authority and four months time prescribed by the Hon'ble Apex Court in the case of Subramanian Swamy, supra, expired on 13.12.2012 and the complaint was itself filed on 26.12.2012. Therefore, it was deemed that as on the date of filing the private complaint, there was a deemed sanction to prosecute the petitioners/accused. In that view of the matter, there is no error committed by the Trial Court in taking cognizance of the offence by the petitioners/accused.
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NC: 2023:KHC:37596 CRL.P No. 493 of 2018 C/W WP No. 2954 of 2018 Consequently, these petitions lack merits and are dismissed.
Sd/-
JUDGE Sma-para Nos.1 to 7 PMR-para Nos.8 till the end List No.: 1 Sl No.: 19