Karnataka High Court
Usha R Patavari vs Smt. Suvarna D/O Chidananadayya ... on 7 January, 2019
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF JANUARY, 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
WRIT PETITION NOS.114517-518/2015 (GM-RES)
BETWEEN:
1. USHA R PATAVARI,
AGE:59 YEARS,
OCC:JOINT DIRECTOR IN
PHYSICAL HANDICAPPED DEPARTMENT,
BENGALURU.
2. K.H.VIJAYKUMAR,
AGE:46 YEARS,
OCC:SENIOR ASST. DIRECTOR,
WOMEN AND CHILD DEVELOPMENT
DEPARTMENT,
DEPUTY DIRECTOR OFFICE,
DAVANAGERE,
TQ:DIST:DAVANAGFERE.
...PETITIONERS
(BY SRI.F.V.PATIL, ADVOCATE)
AND:
SMT. SUVARNA D/O CHIDANANADAYYA
HIREMATH, ANGANWADI KARYAKARTE
KALLIHAL,
TQ:DIST:HAVERI.
...RESPONDENT
(BY SRI.A.A.PATHAN, ADVOCATE)
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THESE PETITIONS ARE FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482
OF Cr.P.C. PRAYING TO QUASH THE IMPUGNED ORDER
DATED:08.06.2015 IN CC.NO.427/2015(PC.NO.83/2003)
PASSED BY THE COURT OF CIVIL JUDGE AND JMFC, HAVERI
IN REGISTERING THE CRIMINAL CASE AGAINST THE
PETITIONERS FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 166, 167, 323, 504, 506(2) OF IPC VIDE ANNEXURE-
K.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING-B GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the arguments of the petitioners' counsel and also the respondent's counsel.
2. The factual matrix of the case is that petitioner No.1 is the Joint Director in Physical Handicapped Department, Bengaluru and petitioner No.2 is the Senior Assistant Director, Women and Child Development Department, Deputy Director Office, Davanagere and these petitioners invoking Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. have sought an order to issue a writ in the nature of certiorari quashing the impugned order 3 dated 08.06.2015 in C.C.No.427/2015 passed by the Court of Civil Judge and JMFC, Haveri in registering the criminal case against the petitioners and issuing summons to the petitioners for the offences punishable under Sections 166, 167, 323, 504 and 506(2) of IPC vide Annexure-K. The petitioners have also sought a writ in the nature of certiorari to quash all the criminal proceedings pursuant to the impugned complaint dated 23.12.2003 in P.C.No.83/2003 (Now C.C.No.427/2015) vide Annexure-J.
3. The main contention of the petitioner is that during the year 2001, 1st petitioner was working as an Assistant Director of Women and Child Development Department and the 2nd petitioner was working as Child Development Officer in Haveri Taluk. During the said period, the respondent was working as an Anganwadi Karyakarte at Kallihal village.
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4. On 5/10/2001, the Adhyaksha and Members of the Gram Panchayat and the residents of Kallihal village lodged a complaint to the 2nd petitioner against the respondent inter alia contending that as an Anganwadi Karyakarte, she is treating SC/ST children by practicing untouchability and also there is a deficiency in discharging of her duty. Similar complaint was filed on 5/1/2001 by Upadhyaksha of Gram Panchayat.
5. On 8/10/2001, a resolution came to be passed in the Panchayat taking the immediate action against the respondent for effecting necessary transfers.
6. As there was grave and serious situation, the petitioners have visited the place and made an attempt to pacify the same. The efforts became vain and ultimately, the office bearers of the Panchayat and also the local residents locked the Anganwadi Kendra and 5 prevented the respondent from entering the Anganwadi Kendra. Hence, the respondent gave a representation against the office bearers. That on 18/10/2001, the second petitioner visited the spot and made an enquiry and the second petitioner was able to see that lock is removed and the Anganwadi Kendra is being run smoothly.
7. The genuine efforts of the first and the second petitioner to see that Anganwadi Kendra is run smoothly at Kallihal village did not materialize since the respondent was having a political support of one group. On 5/11/2001, the respondent wrote a letter to the second petitioner stating that she has been prevented from entering the Anganwadi Kendra and asked the help of the 2nd petitioner to join and to perform as an Anganwadi Karyakarte and the very conduct of the respondent has taken political turn and the second petitioner drew the panchanam and made an in-charge 6 arrangement for functioning of Anganwadi Kendra. That on 27/11/2001, respondent gave another representation to the second petitioner to come personally to see that he should make an arrangement for working with the respondent. The second petitioner was left with no other alternative, issued reminder requesting her to permit the running of the Anganwadi Kendra in a smooth manner or otherwise, necessary steps will be taken as per the law. There was a law and order problem in the village. The Sub-Inspector of Police wrote a letter to the second petitioner. Under the circumstances, the second petitioner was left with no other alternative, but, to recommend for transferring her to another place, by reporting the same to the 1st petitioner. Accordingly, on 21/12/2001, the necessary report was submitted seeking the opinion of the higher authorities. The respondent again gave a representation on 1/1/2002 asking the second petitioner to come 7 personally and see that charge is given to her. As the matter assumed very serious situation, on 5/1/2002, the matter was placed before the Taluk Panchayat, Haveri. The Taluk Panchayat, passed a resolution that she should be transferred to another place and the respondent did stop the same at that sage. Contrary to that, she wrote a letter to the 2nd petitioner on 30/3/2002 putting a threat and again that on 22/5/2002, a similar threat was given to the second petitioner. The respondent had political influence of Adhyaksha of Zilla Panchayat, Haveri, and she went to meet the Minister for Women and Child Department and placed a minute to the effect that an arrangement should be made to permit her to work as Anganwadi Karyakarte at Kallihal village. On oral enquiry with the higher authorities, the 1st petitioner was left with no alternative, but to transfer her from Kallihal village to Kurugund. It is contended that respondent working as 8 Anganwadi Karyakarte has taken a political turn, there was pressure to cancel the transfer order and accordingly, it was cancelled and she was reinstated. The localites did not permit her to work as an Anganwadi Karyakarte. There was a hunger strike by respondent for payment of salary and for joining her to duty. Under the circumstances, respondent made an attempt to take vengeance against the petitioners by making frivolous and silly allegations and ultimately, she has filed a private complaint on 23/12/2013 before the JMFC Court, Haveri. After the investigation, the police have filed a 'B' report and thereafter, she has been examined and the Court below issued process by taking the cognizance against the petitioners herein. The petitioners by placing all these records before this Court as per Annexures-A to K, have filed the present writ petition.
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8. The main contention of the petitioner is that both of them were discharging the duties as official duty and there was no any nexus with the official duty and the alleged crime and the Court below failed to take note of the mandatory provision under Section 197 of Cr.P.C. that there must be sanction before prosecuting the Government official when they have discharged the duties in the official capacity and has wrongly relied on the judgment reported in the case of S.V.Hiremath Vs. Veerabhadragouda in 2004(3) KCCR 1775.
9. The further contention of the petitioner that after reading the complaint averments and corresponding documents and 'B' summary report, there was no any materials to take the cognizance and erroneously issued process against the petitioners. Taking cognizance after lapse of 12 years is the abuse of process of the Court and the proceedings have been continued just to victimize the petitioners. Hence, the 10 order impugned is liable to be set aside by invoking Articles 226 and 227 r/w Section 482 of Cr.P.C.
10. The counsel appearing for the petitioners in his argument vehemently referring the documents Annexures-A to K contended that the trial Court failed to take note of the fact that these petitioners have discharged the duties in the official capacity and erroneously comes to the conclusion that Section 197 of Cr.P.C. is not applicable to the case on hand.
11. In support of his contention, he has relied upon the judgment reported in (2000) 5 SCC 15 between Gauri Shankar Prasad Vs. State of Bihar and Another. The Apex Court in this judgment held that "sanction for prosecution of public servant - Condition precedent for invoking S.197- Whether he committed an offence while acting or purporting to act in discharge of his official duty - Test to determine is 11 whether the alleged action which constituted an offence has a reasonable and rational nexus with the official duties required to be discharged by the public servant - If answer is in affirmative then sanction for his prosecution is required to be obtained- Appellant in his official capacity as Sub-Divisional Magistrate going to the place of the complainant for the purpose of removal of encroachment from Govt. land and in exercise of such duty he allegedly entering the chamber of the complainant using filthy language and dragging him out of his chamber - Held, the act alleged had a reasonable nexus with the official duty of the appellant - Hence, no criminal proceedings could be initiated against the appellant without obtaining sanction".
12. The counsel also brought to my notice the paras 3, 5 and 9 of the judgment.
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13. Per contra, the counsel appearing for respondent in his arguments, vehemently contended that this Court cannot invoke Section 482 Cr.P.C. for having considered the contents of the complaint and counsel also brought to my notice para Nos.6 and 7 of the allegation made in the complaint against these petitioners. It is a case for the trial and this Court cannot exercise powers under Section 482 of Cr.P.C., when the complaint averments are specific with regard to the allegation made against petitioners 1 and 2 and the Court below with regard to Section 197 is concerned has made an observation that act is not purporting to be done in discharge of official duty and formed an opinion that sanction under Section 197 of Cr.P.C. is not necessary and relied upon the judgment reported in 2004 KCCR 1775 and the reason was given in the order itself that the decision is rightly applicable to the present case and further formed an opinion that at this 13 stage this Court is satisfied that there is sufficient material to proceed against the accused for the offences and further observed that the complainant has made out a prima facie case against the petitioners and issued process. The counsel further contends that the Court has to take note of whether the Magistrate has applied its judicial mind while taking cognizance and issuance of process and nothing else. Hence, there are no grounds to interfere with the order of the Trial Court exercising the writ jurisdiction and Section 482 of Cr.P.C.
14. After having heard the arguments of the petitioner's counsel and also the learned counsel for the respondent, this Court has to examine whether this Court can invoke the writ jurisdiction under Articles 226 and 227 of Constitution of India and under Section 482 of Cr.P.C. to exercise its powers.
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15. The factual matrix of the case is that the complainant is working as Anganwadi Karyakarte and the averments of petition and also the documents enclosed along with the petition disclose that the dispute was started from the year 2001 and ultimately, the complaint was filed in the year 2013. On filing of the complaint, the matter was referred to the concerned police to investigate the matter under Section 156(3) of Cr.P.C. The police after investigation has filed a 'B' report and the same is challenged by the complainant and she was examined before the Court and also examined one more witness as PW-2 and the trial Court considering the evidence of PWs.1 and 2 and also the documents Exhibits P1 and P2 found that the evidence and the documents prima facie reveal that the order of transfer of complainant from Kallihal village to Kurugund village has been cancelled by the Child Welfare Department and have not given charge in favour 15 of the complainant as Anganwadi Worker and further observed that they have abused with filthy language and they gave life threat and assault.
16. After having taken note of the statement of PWs.1 and 2 and also Exhibits P1 and P2, the averments of the complaint, the court below has proceeded to take cognizance and issued the process.
17. Learned counsel for the petitioner has brought to my notice the Annexure-A to K, what are all the things were happened between 2001 to 2013. It is pertinent to note that while exercising the powers under Section 482 of Cr.P.C. and also considering the petition under Articles 226 and 227, the petitioner cannot invoke Articles 226 and only under Article 227, under the supervisory powers of the trial Court jurisdiction can be exercised. While exercising the powers, the Court also must be very cautious and while 16 invoking Section 482 of Cr.P.C. the Court should kept in mind that also, Section 482 of Cr.P.C. is not a rule and the same is an exception and only in order to prevent injustice, the Court can exercise the powers under Section 482 of Cr.P.C. While exercising the powers under Section 482 of Cr.P.C. the Court cannot consider the defence of the accused persons and only to see that what are the averments of the complaint and documents. On perusal of this complaint, the complainant has made a specific allegation in Paras 6 and 7, what has been transpired between the accused and also between these petitioners and also relied upon the documents Exs.P1 and P2 and it is also made to note that while considering the case for issuance of cognizance, the Court has to apply its judicial mind and not to see the evidence and what would be the result of the case. Having considered the scope of Section 482 of Cr.P.C. and also exercising the powers under Article 227 17 of the Constitution of India, the High Court has to exercise its supervisory powers and to see that whether the Magistrate applied his judicial mind, and on perusal of the impugned order dated 8/6/2015 of the Court below, the Magistrate has applied his mind and considered the statement of PWs.-1 and 2 and also Exs.P1 and P2 and formed an opinion that it reveals prima facie case that the Agnawadi Karyakarte has not been given charge to discharge the duties inspite of order passed by the 1st petitioner to transfer her from Kallihal to Kurugund and the Women and Child Welfare Minister issued minute to the effect that an arrangement should be made to permit her to work as Anganwadai Karyakarte at Kallihal village. Hence, I am of the opinion that contents of the complaint and statement of witness has been considered by the Court below and formed an opinion that there are materials to 18 proceed against petitioner Nos.1 and 2 and found prima facie material.
18. The other contention of the petitioner's counsel that the Court below has committed an error in not considering Section 197 of Cr.P.C. in its letter and spirit and there is a protection under Section 197 of Cr.P.C. against the person who discharge the public duty. The provision is also very clear that when any person who is or was a Judge or Magistrate or public servant not removable from his office save by or with the sanction of the Government Servant is accused of any offence alleged to have been committed by him while acting purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction.
19. After having taken note of provision of Section 197 of Cr.P.C. no doubt there is a clear 19 protection against the public servant to discharge duty of his official duty acting or purporting to act in discharge of his official duty and the same has been considered by the Apex Court's judgment referred by the petitioner's counsel.
20. Having considered the factual aspects of the case and the averments made in the complaint, it is a specific allegation against the petitioner Nos.1 and 2 that they are coming in the way of discharging duties of the respondents/complainant as Anganwadi Karyakarte and the contents of the complaint has to be tested in the trial and allegations also has to be considered during the course of the trial. The Judicial Magistrate considering the complaint averments and the documents and the sworn statement of the complainant and other witnesses applied the judicial mind and issued process and while discussing with regard to Section 197 of Cr.P.C. distinguished the Act purporting 20 to be done with official duty and comes to the conclusion that Section 197 would not come to the aid of the petitioners. Hence, I do not find any force in the contention of the petitioners' counsel that Section 197 of Cr.P.C. comes into the aid of the petitioners and it is a specific allegation that even though the Women and Child Minister has issued minute to the effect that an arrangement should be made to permit her to work as Anganwadi Karyakarte and to give an opportunity for her to discharge duty as Anganwadi Karyakarte, she has not been allowed.
21. Hence, I am of the opinion that this has to be tested in trial only and there are prima facie materials to proceed against the petitioners and this Court at this stage cannot allow the petitioners to raise the defence and evidence cannot be looked into. 21
22. In view of the discussions made above, I proceed to pass the following:
ORDER The petition is dismissed.
Sd/-
JUDGE Sh/VMB