Karnataka High Court
B A Padmanayan vs Central Bureau Of Investigation on 24 August, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2022 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.1144 OF 2020
C/W
CRIMINAL PETITION No.1545 OF 2020
IN CRIMINAL PETITION No.1144 OF 2020
BETWEEN:
1. B.A.PADMANAYAN
S/O B.ASHWATHNARAYAN SHETTY
AGED ABOUT 63 YEARS
OCC: FORMER INSPECTOR
GENERAL OF POLICE (RETD.)
EXCISE ENFORCEMENT AND
LOTTERY PROHIBITION WING
KARNATAKA, BENGALURU
R/O NO.1004, WARD NO.25
1ST MAIN ROAD,
VIJAYANAGAR
BENGALURU - 560 040.
2. KANAKALAKSHMI B.M.,
W/O S.NAGESHA BABU
AGED ABOUT 44 YEARS
OCC:FORMER POLICE INSPECTOR
EXCISE ENFORCEMENT AND
LOTTERY PROHIBITION WING
KARNATAKA, BENGALURU
NOW WORKING AS
2
POLICE INSPECTOR VVIP SECURITY ,
R/O FLAT NO.005,
GROUND FLOOR, CROWN LAKE
VIEW APARTMETNS, JAYANTINAGAR,
HORAMAVU, RAMAMURTYNAGAR
BENGALURU - 560 016.
3. G.T.SWAMY
S/O THIMMAPPA
AGED ABOUT 50 YEARS
OCC: FORMER POLICE INSPECTOR
EXCISE ENFORCEMENT AND
LOTTERY PROHIBITION WING
KARNATAKA, BENGALURU
NOW WORKING AS
POLICE HEAD QUARTER,
STATE SPECIAL BRANCH
BENGALURU,
R/O VILLAGE AND AT POST
DUMMI, HOLALKERE
DIST. CHITRADURGA - 577 531.
4. C.R.RANGANATHA
S/O RANGAPPA
AGED ABOUT 64 YEARS
FORMER POLICE INSPECTOR (NOW RETD.),
EXCISE ENFORCEMENT AND
LOTTERY PROHIBITION WING
R/O NO.626, 60 FEET ROAD,
8TH MAIN ROAD,
KSD LAYOUT, BENGALURU - 560 078.
5. M.J.LOKESH
S/O K.JAVARAYI GOWDA
AGED ABOUT 40 YEARS
OCC:FORMER POLICE INSPECTOR
EXCISE ENFORCEMENT AND
3
LOTTERY PROHIBITION WING,
KARNATAKA, BENGALURU
NOW WORKING AS
POLICE INSPECTOR, K.R. PURAM
TRAFFIC POLICE STATION BENGALURU
R/O MUDEENAHALLI
MADDUR TALUK,
DIST. MANDYA - 562 103.
6. B.N.SRIKANTHA
S/O NANGUDAIAH B.S.,
AGED ABOUT 40 YEARS
OCC: FORMER POLICE INSPECTOR
EXCISE ENFORCEMENT AND
LOTTERY PROHIBITION WING,
KARNATAKA, BENGALURU
NOW WORKING AS CIRCLE POLICE INSPECTOR
BANGARPET CIRCLE KGF, KOLAR DIST
R/O KUVEMPUNAGARA
DASARAHOSAHALLI
BANGARPET TALUK,
DIST: KOLAR - 563 114.
7. B.M.THIPPESWAMY
S/O MALAPPA B.T.,
AGED ABOUT 37 YEARS
OCC: FORMER SUB INSPECTOR
EXCISE ENFORCEMENT AND
LOTTERY PROHIBITION WING,
KARNATAKA, BENGALURU
NOW WORKING AS POLICE SUB INSPECTOR
SCRB, BENGALURU
R/O 4TH 'A' MAIN, KALYAN NAGAR
MUDAL PALYA
BENGALURU - 560 072.
8. B.S.VENUGOPAL
S/O B.SEENAPPA
AGED ABOUT 44 YEARS
4
OCC: FORMER HEAD CONSTABLE
EXCISE ENFORCEMENT AND
LOTTERY PROHIBITION WING,
KARNATAKA, BENGALURU
NOW WORKING AS HEAD CONSTABLE
CYBER ECONOMIC
AND NARCOTICS CRIME POLICE STATION
KGF, KOLAR DISTRICT
R/O DOOR NO.3,
NEW POLICE QUARTERS
SAIT COMPOUND, BANGARPET
DIST. KOLAR - 563 114.
9. RAVIKUMAR D.,
S/O DODDAKADIRAPPA
AGED ABOUT 32 YEARS
OCC: FORMER CONSTABLE,
EXCISE ENFORCEMENT AND
LOTTERY PROHIBITION WING,
KARNATAKA, BENGALURU
NOW WORKING AS
POLICE SUB INSPECTOR
AT MANDYA DISTRICT (UNDER TRAINEE)
POLICE TRAINING COLLEGE
GULBARGA, GULBARGA DIST.
R/O PELAVANAHALLI VILLAGE
MALLUR TALUK
KOLAR DISTRICT - 562 102.
... PETITIONERS
(BY SRI C.H.JADHAV, SR.ADVOCATE FOR
SRI CHETAN JADHAV, ADVOCATE FOR
P-1, P-3 TO 6, P-8 AND P-9;
SRI C.H.JADHAV, SR.ADVOCATE FOR
SRI B.C.VENKATESH, ADVOCATE FOR P-2;
PETITION AS AGAINST P-7 IS DISMISSED AS
WITHDRAWN VIDE ORDER DATED 28/10/2021)
5
AND:
CENTRAL BUREAU OF INVESTIGATION
GANGANAGARA, BENGALURU
REPRESENTED BY ITS PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
... RESPONDENT
(BY SRI P.PRASANNA KUMAR, SPL.PP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO ALLOW THIS CRIMINAL PETITION BY
QUASHING THE CRIMINAL PROCEEDINGS AGAINST THE
PETITIONERS IN C.C.NO.1139/2020 AND THE ORDER OF TAKING
COGNIZANCE DATED 14.01.2020 OF THE OFFENCE P/U/S.120-B,
167, 182, 193, 195, 211, 218 OF IPC AND ISSUING THE PROCESS
AGAINST THEM ON THE FILE OF THE LEARNED XVII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE BENGALURU (SPECIAL COURT
FOR CBI CASES).
IN CRIMINAL PETITION No.1545 OF 2020
BETWEEN:
SRI R.RAVIPRAKASH
S/O M.RAMASWAMY
AGED ABOUT 45 YEARS,
RESIDING AT HOUSE NO.58,
SRI RAMA NILAYA, 4TH CROSS
2ND MAIN, KANAKA LAYOUT
KADIRENAHALLI, BSK 2ND STAGE
BENGALURU - 560 070.
... PETITIONER
(BY SRI C.H.JADHAV, SR.ADVOCATE FOR
SRI SURESH BABU B.N., ADVOCATE)
6
AND:
CENTRAL BUREAU INVESTIGATION
S.C.1, NEW DELHI - 110 011
CBI, HIGH COURT PREMISES
HIGH COURT OF KARNATAKA
BENGALURU.
... RESPONDENT
(BY SRI P.PRASANNA KUMAR, SPL.PP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE CHARGE SHEET IN
C.C.NO.1139/2020 IN CR.NO.64/2015 ON THE FILE OF THE XVII
A.C.M.M., (SPECIAL COURT FOR CBI) AT BENGALURU. FOR
OFFENCE P/U/S.120-B, 167, 182, 193, 195, 211, 218 OF IPC.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 17.06.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners in Crl.P.No.1144 of 2020 are accused Nos.1 to 6, 8 to 10 and petitioner in Crl.P.No.1545 of 2020 is accused No.7 in C.C.No.1139 of 2020 and have knocked the doors of this Court calling in question order of the XVII Additional Chief Metropolitan Magistrate, Bangalore taking cognizance by his order dated 14.01.2020 for offences punishable under Sections 120B, 167, 182, 193, 195, 211 and 218 of the IPC.
72. Brief facts that lead to the filing of the present petitions, as borne out from the pleadings, are as follows:-
The 1st petitioner was, at the relevant point in time, working as Inspector General of Police, Excise enforcement and Lottery Prohibition Wing ('the Wing' for short) and claims to have served the Police Department for more than 3 decades. Similarly all the other petitioners in these petitions are Police Officers who had worked in different capacities in the Wing. On 6-03-2015 Suvarna News TV Channel broadcast a sting operation conducted by journalists attached to the said channel on certain persons dealing in lottery business in the State of Karnataka which by then was declared to be illegal. The news published was that the kingpin of the lottery business was one Pari Rajan @ Rajan who was carrying out the business in lottery though it came to be prohibited by promulgation of Lottery Prohibition Act in the State of Karnataka.
The news also mentioned that the said kingpin had nexus with Police Officers at higher levels who had assured that they would take care of all the hurdles that would come about in the business.
The telecast generated huge criticism to the Wing and the Superintendent of Police and other Police Officers attached to the 8 Wing were all transferred. One Prakash, CW-25 was posted as Sub-
Inspector of Police to the Wing at Bangarpet where accused Pari Rajan was carrying on his business.
3. It is the case of the prosecution that on 30-04-2015 at about 1 p.m. Mr. Prakash receives credible information that Pari Rajan was carrying on lottery business illegally and had to be searched. On receipt of the said information Mr.Prakash informs the same to petitioner No.1 who directs conduct of a raid with panchas and staff and accordingly, search was conducted in the house of accused No.1 Pari Rajan in the said case and seized several incriminating materials like computer, printed lottery tickets, cheque books, cash of Rs.38,985/-, and mobile phone etc. Mr. Pari Rajan came to be arrested and thereafter, crime in Crime No.64 of 2015 came to be registered under Sections 5 and 7 of the Lottery Prohibition Act and Sections 120B, 188, 420 r/w 34 of the IPC. In the course of investigation the police recorded statements of several persons. At that stage Government directed investigation to be taken over by the CID Police. Accordingly, the entire investigation was handed over to CW-44 of the CID Police and the 9 CID Police after conducting investigation filed a charge sheet on 29- 06-2015 against accused No.1/Mr. Pari Rajan for offences punishable under Sections 5 and 7(3) of the Lottery Prohibition Act and Sections 463, 467, 468, 471, 474, 420 r/w 34 of the IPC. On the final report filed by the CID, the learned Magistrate by an order dated 29.06.2015 took cognizance of the offence and issued process against accused No.1 Pari Rajan which is pending trial in C.C.No.758 of 2015.
4. When things stood thus, based upon a report submitted by the Director General and Inspector General dated 6-05-2015 which had recommended that investigation is to be handed over to the CBI as the issue had wide ramification in the State and outside the State, the Government takes a decision on the said report and hands the matter, over to the CBI by communication dated 28-05- 2015 and based on the communication, the CBI took over the investigation on 10-08-2015 and registered a FIR for offences punishable under Sections 120B, 188, 420 and 341 of the IPC.
During investigation the CBI again recorded statements of several persons and ultimately gave a clean chit to Pari Rajan 10 notwithstanding the fact that the CID Police who had conducted investigation and filed a charge sheet against Pari Rajan was still pending adjudication before the learned Magistrate at Bangarpet.
But, the CBI after conduct of further investigation, have filed a charge sheet against all these petitioners who are Police Officers.
5. The ground on which the charge sheet was filed was that these Police Officers had created bogus seizures and conducted mahazars by planting result sheets in the house of Pari Rajan without following proper procedure at the time of conducting search. The said charge sheet filed by the CBI was placed before the concerned Court and the concerned Court opined that a case is made out by the prosecution against the accused. But, since the accused are public servants sanction would be required for such prosecution to be continued further. Pending receipt of sanction from the hands of the Competent Authority, the learned Magistrate, later by his order dated 14-01-2020 takes cognizance against the petitioners for offences punishable under Sections 120B, 167, 182, 193, 195, 211, 218 of the IPC against all the accused. It is taking of 11 cognizance by the learned Magistrate that drives the petitioners to this Court in the subject petitions.
6. Heard Sri C.H.Jadhav, learned senior counsel appearing for the petitioners and Sri P.Prasanna Kumar, learned Special Public Prosecutor for the respondent.
7. The learned senior counsel Sri C.H.Jadhav appearing for the petitioners would contend with vehemence that the entire investigation conducted by the CBI was a mockery, as the main kingpin against whom the CID Police had filed the charge sheet is given a clean chit and the Police Officers who had conducted a search and brought Pari Rajan to books are hauled up. Based upon the said submissions, he would contend that the learned Magistrate could not have taken cognizance of the offences alleged in the charge sheet filed by the CBI, as there was no sanction accorded by the competent authority qua the petitioners who are all public servants and would further submit that taking cognizance for all the offences that are indicated are specifically barred under Section 195 of the Cr.P.C. as it is the learned Magistrate who had to complain 12 about forging documents which are custodia legis and would submit that the entire proceedings are vitiated on the afore-urged two counts and, therefore, no other ground need be considered.
8. On the other hand, the learned Special Public Prosecutor representing the CBI Sri.P.Prasanna Kumar would refute the submissions to contend that no sanction is required for the acts of the petitioners who have created bogus mahazar and seizure.
Accused No.1 Pari Rajan was given up when CBI noticed that it was the act of the petitioners that was to be seen and not Pari Rajan who was innocent in the matter. With regard to the submission of bar under Section 195 of the Cr.P.C. the learned counsel would submit that these documents were prepared outside and later produced in C.C.No.758 of 2015 and, therefore, it would not be documents which are custodia legis. He seeks dismissal of the petitions.
9. I have bestowed my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. In furtherance whereof, the issues that fall for my consideration are:
13(i) Whether the act of production of allegedly created mahazar or seizure material could be made an offence punishable under Sections 120B, 167, 182, 193, 195, 211 and 218 of the IPC in C.C.No.1139 of 2020?
(ii) Whether the act of the concerned Court taking cognizance stands vitiated on account of want of sanction under Section 197 of the Cr.P.C. to prosecute the petitioners who are admittedly public servants?
10. Since sanction at issue No.(ii) would go to the root of the matter, I deem it appropriate to consider the said issue at the outset.
11. Before embarking upon the aforesaid consideration, it is necessary to notice the law as laid down in the judgments rendered by the Apex Court on the issue of sanction for prosecution of public servants, in the cases where offences are committed in the discharge of official duties or the acts having nexus to the discharge of official duties. Section 197 of the Cr.P.C. reads as follows:
"197. Prosecution of Judges and public servants.--
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous 14 sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013--
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:"
Interpreting Section 197 of the Cr.P.C., the Apex Court right from the year 1955 has delineated the principle of requirement to prosecute the Government servants. The Apex Court in the case of AMRIK SINGH v. STATE OF PEPSU1 has held as follows:
"7. The result of the authorities may thus be summed up: It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.
8. It is conceded for the respondent that on the principle above enunciated, sanction would be required 1 (1955) 1 SCR 1302 15 for prosecuting the appellant under Section 465, as the charge was in respect of his duty of obtaining signatures or thumb impressions of the employees before wages were paid to them. But he contends that misappropriation of funds could, under no circumstances, be said to be within the scope of the duties of a public servant, that he could not, when charged with it, claim justification for it by virtue of his office, that therefore no sanction under Section 197(1) was necessary, and that the question was concluded by the decisions in Hori Ram Singh v. Emperor [AIR 1939 FC 43 : 1939 FCR 159] and Albert West Meads v. King [AIR 1948 PC 156 : 75 IA 185] , in both of which the charges were of criminal misappropriation.
We are of opinion that this is too broad a statement of the legal position, and that the two decisions cited lend no support to it. In our judgment, even when the charge is one of misappropriation by a public servant, whether sanction is required under Section 197(1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required."
(Emphasis supplied) Elaborating the said consideration, the Apex Court in the case of SANKARAN MOITRA v. SADHNA DAS2 has raised the following issue:
"6. The High Court by order dated 11-7-2003 dismissed the application. It overruled the contention of the accused based on Section 197 of the Code of Criminal Procedure thus:
"In its considered view Section 197 CrPC has got no manner of application in the present case. Under 2 (2006) 4 SCC 584 16 Section 197 CrPC sanction is required only if the public servant was, at the time of commission of offence, 'employed in connection with the affairs of the Union or of a State' and he was 'not removable from his office save by or with the sanction of the Government'. The bar under Section 197 CrPC cannot be raised by a public servant if he is removable by some authority without the sanction of the Government.
Committing an offence can never be a part of an official duty. Where there is no necessary connection between the act and the performance of the duties of a public servant, Section 197 CrPC will not be attracted. Beating a person to death by a police officer cannot be regarded as having been committed by a public servant within the scope of his official duties."
Finding on the said issue by the Apex Court is as follows:
"25. The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the 17 High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage. It is not for us now to answer the submission of learned counsel for the complainant that this is an eminently fit case for grant of such sanction.
26. We thus allow this appeal and setting aside the order of the High Court quash the complaint only on the ground of want of sanction under Section 197(1) of the Code of Criminal Procedure. The observations herein, however, shall not prejudice the rights of the complainant in any prosecution after the requirements of Section 197(1) of the Code of Criminal Procedure are complied with."
(Emphasis supplied) The order of High Court which was questioned before the Apex Court was set aside on the sole ground that there was no sanction under Section 197 of the Cr.P.C. to prosecute the petitioners.
Again, the Apex Court in the case of DEVINDER SINGH v.
STATE OF PUNJAB3 while giving it same sham of the principle has held as follows:
"39. The principles emerging from the aforesaid decisions are summarised hereunder:3
(2016) 12 SCC 87 18 39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.
39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197 CrPC. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule.
39.4. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.
39.5. In case sanction is necessary, it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.
39.6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of court at a later stage, finding to that effect is permissible and such a plea can be taken first time 19 before the appellate court. It may arise at inception itself. There is no requirement that the accused must wait till charges are framed.
39.7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.
39.8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to the accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in support of his case on merits.
39.9. In some cases it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial."
(Emphasis supplied) Following these judgments, the Apex Court in the case of D.DEVARAJA v. OWAIS SABEER HUSSAIN4 has held as follows:
"30. The object of sanction for prosecution, whether under Section 197 of the Code of Criminal Procedure, or under Section 170 of the Karnataka Police Act, is to protect a public servant/police officer discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings. As held by a Constitution Bench of this 4 (2020) 7 SCC 695 20 Court in Matajog Dobey v. H.C. Bhari [Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 : 1956 Cri LJ 140] :
(AIR p. 48, para 15) "15. ... Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. ...
There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction."
31. In Pukhraj v. State of Rajasthan [Pukhraj v. State of Rajasthan, (1973) 2 SCC 701: 1973 SCC (Cri) 944] this Court held: (SCC p. 703, para 2) "2. ... While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be 21 so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the "capacity in which the act is performed", "cloak of office" and "professed exercise of the office" may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty."
32. In Amrik Singh v. State of PEPSU [Amrik Singh v. State of PEPSU, AIR 1955 SC 309 : 1955 Cri LJ 865] this Court referred to the judgments of the Federal Court in Hori Ram Singh v. Crown [Hori Ram Singh v. Crown, 1939 SCC OnLine FC 2: AIR 1939 FC 43]; H.H.B. Gill v. King Emperor [H.H.B. Gill v. King Emperor, 1946 SCC OnLine FC 10: AIR 1947 FC 9] and the judgment of the Privy Council in Gill v. R. [Gill v. R., 1948 SCC OnLine PC 10: (1947-48) 75 IA 41: AIR 1948 PC 128] and held: (Amrik Singh case [Amrik Singh v. State of PEPSU, AIR 1955 SC 309: 1955 Cri LJ 865] , AIR p. 312, para 8) "8. The result of the authorities may thus be summed up : It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution."
2233. Section 197 of the Code of Criminal Procedure, 1898, hereinafter referred to as the old Criminal Procedure Code, which fell for consideration in Matajog Dobey [Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44: 1956 Cri LJ 140], Pukhraj [Pukhraj v. State of Rajasthan, (1973) 2 SCC 701: 1973 SCC (Cri) 944] and Amrik Singh [Amrik Singh v. State of PEPSU, AIR 1955 SC 309: 1955 Cri LJ 865] is in pari materia with Section 197 of the Code of Criminal Procedure, 1973. The Code of Criminal Procedure, 1973 has repealed and replaced the old Code of Criminal Procedure.
34. In Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004 SCC (Cri) 2104] this Court held : (SCC pp. 46-47, para 7) "7. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been 23 committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty."
(emphasis supplied)
35. In State of Orissa v. Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40: 2004 SCC (Cri) 2104] this Court interpreted the use of the expression "official duty" to imply that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. Section 197 of the Code of Criminal Procedure does not extend its protective cover to every act or omission done by a public servant while in service. The scope of operation of the section is restricted to only those acts or omissions which are done by a public servant in discharge of official duty.
36. In Shreekantiah Ramayya Munipalli v. State of Bombay [Shreekantiah Ramayya Munipalli v. State of Bombay, AIR 1955 SC 287 : 1955 Cri LJ 857] this Court explained the scope and object of Section 197 of the old Criminal Procedure Code, which as stated hereinabove, is in pari materia with Section 197 of the Code of Criminal Procedure. This Court held: (AIR pp. 292-93, paras 18-19) "18. Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning. What it says is--
24'When any public servant ... is accused of any "offence" alleged to have been committed by him while acting or purporting to act in the discharge of his official duty....' We have therefore first to concentrate on the word "offence".
19. Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against Accused 2 are, first, that there was an "entrustment" and/or "dominion"; second, that the entrustment and/or dominion was "in his capacity as a public servant"; third, that there was a "disposal"; and fourth, that the disposal was "dishonest". Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity.
Therefore, the act complained of, namely, the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because Accused 2 could not dispose of the goods save by the doing of an official act, namely, officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done : in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it."
37. The scope of Section 197 of the old Code of Criminal Procedure, was also considered in P. Arulswami v. State of Madras [P. Arulswami v. State of 25 Madras, AIR 1967 SC 776 : 1967 Cri LJ 665] where this Court held : (AIR p. 778, para 6) "6. ... It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted."
"If the act is totally unconnected with the official duty, there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable...."
38. In B. Saha v. M.S. Kochar [B. Saha v. M.S. Kochar, (1979) 4 SCC 177 : 1979 SCC (Cri) 939] this Court held :
(SCC p. 185, para 18) "18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him."
39. In Virupaxappa Veerappa Kadampur v. State of Mysore [Virupaxappa Veerappa Kadampur v. State of Mysore, AIR 1963 SC 849 : (1963) 1 Cri LJ 814] cited by Mr Poovayya, a three-Judge Bench of this Court had, in the context of Section 161 of the Bombay Police Act, 1951, which is similar to Section 170 of the Karnataka Police Act, interpreted the phrase "under colour of duty" to mean "acts done under the cloak of duty, even though not by virtue of the duty".
40. In Virupaxappa Veerappa Kadampur [Virupaxappa Veerappa Kadampur v. State of Mysore, AIR 1963 SC 849 :
(1963) 1 Cri LJ 814] this Court referred (at AIR p. 851, para 9) to the meaning of the words "colour of office" in Wharton's Law Lexicon, 14th Edn., which is as follows:
"Colour of office, when an act is unjustly done by the countenance of an office, being grounded upon corruption, to which the office is as a shadow and colour."26
41. This Court also referred (at AIR p. 852, para 9) to the meaning of "colour of office" in Stroud's Judicial Dictionary, 3rd Edn., set out hereinbelow:
"Colour:"Colour of office" is always taken in the worst part, and signifies an act evil done by the countenance of an office, and it bears a dissembling face of the right of the office, whereas the office, is but a veil to the falsehood, and the thing is grounded upon vice, and the office is as a shadow to it. But "by reason of the office" and "by virtue of the office" are taken always in the best part."
42. After referring to the Law Lexicons referred to above, this Court held : (Virupaxappa Veerappa Kadampur case [Virupaxappa Veerappa Kadampur v. State of Mysore, AIR 1963 SC 849 : (1963) 1 Cri LJ 814] , AIR p. 852, para 10) "10. It appears to us that the words "under colour of duty" have been used in Section 161(1) to include acts done under the cloak of duty, even though not by virtue of the duty. When he (the police officer) prepares a false panchnama or a false report he is clearly using the existence of his legal duty as a cloak for his corrupt action or to use the words in Stroud's Dictionary "as a veil to his falsehood". The acts thus done in dereliction of his duty must be held to have been done "under colour of the duty"."
43. In Om Prakash v. State of Jharkhand [Om Prakash v. State of Jharkhand, (2012) 12 SCC 72 : (2013) 3 SCC (Cri) 472] this Court, after referring to various decisions, pertaining to the police excess, explained the scope of protection under Section 197 of the Code of Criminal Procedure as follows : (SCC p. 89, para 32) "32. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it (K. Satwant Singh [K. Satwant Singh v. State of Punjab, AIR 1960 SC 266 : 1960 Cri LJ 410] ). The protection given under Section 197 of the 27 Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection (Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004 SCC (Cri) 2104] ). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood."
(emphasis supplied)
44. In Sankaran Moitra v. Sadhna Das [Sankaran Moitra v. Sadhna Das, (2006) 4 SCC 584: (2006) 2 SCC (Cri) 358] the majority referred to Gill v. R. [Gill v. R., 1948 SCC OnLine PC 10: (1947-48) 75 IA 41: AIR 1948 PC 128], H.H.B. Gill v. King Emperor [H.H.B. Gill v. King Emperor, 1946 SCC OnLine FC 10: AIR 1947 FC 9]; Shreekantiah Ramayya Munipalli v. State of Bombay [Shreekantiah Ramayya Munipalli v. State of Bombay, AIR 1955 SC 287:
1955 Cri LJ 857]; Amrik Singh v. State of PEPSU [Amrik Singh v. State of PEPSU, AIR 1955 SC 309: 1955 Cri LJ 865] ; Matajog Dobey v. H.C. Bhari [Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 : 1956 Cri LJ 140]; Pukhraj v. State of Rajasthan [Pukhraj v. State of Rajasthan, (1973) 2 SCC 701:
1973 SCC (Cri) 944]; B. Saha v. M.S. Kochar [B. Saha v. M.S. Kochar, (1979) 4 SCC 177: 1979 SCC (Cri) 939]; Bakhshish Singh Brar v. Gurmej Kaur [Bakhshish Singh Brar v. Gurmej Kaur, (1987) 4 SCC 663 : 1988 SCC (Cri) 29]; Rizwan Ahmed Javed Shaikh v. Jammal Patel [Rizwan Ahmed Javed Shaikh v. Jammal Patel, (2001) 5 SCC 7] and held: (Sankaran Moitra case [Sankaran Moitra v. Sadhna Das, (2006) 4 SCC 584: (2006) 2 SCC (Cri) 358] , SCC pp. 602-603, para 25) 28 "25. The High Court has stated [Sankaran Moitra v. Sadhana Das, 2003 SCC OnLine Cal 309 :
(2003) 4 CHN 82] that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage.
It is not for us now to answer the submission of the learned counsel for the complainant that this is an eminently fit case for grant of such sanction."
45. The dissenting view of C.K. Thakker, J. in Sankaran Moitra [Sankaran Moitra v. Sadhna Das, (2006) 4 SCC 584 :
(2006) 2 SCC (Cri) 358] supports the contention of Mr Luthra to some extent. However, we are bound by the majority view.29
Furthermore even the dissenting view of C.K. Thakker, J. was in the context of an extreme case of causing death by assaulting the complainant.
46. In K.K. Patel v. State of Gujarat [K.K. Patel v. State of Gujarat, (2000) 6 SCC 195 : 2001 SCC (Cri) 200] this Court referred to Virupaxappa Veerappa Kadampur [Virupaxappa Veerappa Kadampur v. State of Mysore, AIR 1963 SC 849 :
(1963) 1 Cri LJ 814] and held : (K.K. Patel case [K.K. Patel v. State of Gujarat, (2000) 6 SCC 195 : 2001 SCC (Cri) 200] , SCC p. 203, para 17) "17. The indispensable ingredient of the said offence is that the offender should have done the act "being a public servant". The next ingredient close to its heels is that such public servant has acted in disobedience of any legal direction concerning the way in which he should have conducted as such public servant. For the offences under Sections 167 and 219 IPC the pivotal ingredient is the same as for the offence under Section 166 IPC. The remaining offences alleged in the complaint, in the light of the averments made therein, are ancillary offences to the above and all the offences are parts of the same transaction. They could not have been committed without there being at least the colour of the office or authority which the appellants held."
... ... .. ..
55.Devinder Singh v. State of Punjab [Devinder Singh v. State of Punjab, (2016) 12 SCC 87: (2016) 4 SCC (Cri) 15: (2017) 1 SCC (L&S) 346] cited by Mr Luthra is clearly distinguishable as that was a case of killing by the police in fake encounter. Satyavir Singh Rathi v. State [Satyavir Singh Rathi v. State, (2011) 6 SCC 1: (2011) 2 SCC (Cri) 782] also pertains to a fake encounter, where the deceased was mistakenly identified as a hardcore criminal and shot down without provocation. The version of the police that the police had been attacked first and had retaliated, was found to be false. In the light of these facts, that this Court held that it could not, by any stretch of imagination, be claimed by anybody that a case of murder could be within the expression "colour of duty". This Court dismissed the appeals of the policemen concerned against conviction, inter alia, under 30 Section 302 of the Penal Code, which had duly been confirmed [Satyavir Singh Rathi v. State, 2009 SCC OnLine Del 2973] by the High Court. The judgment is clearly distinguishable.
"34. In Matajog Dobey [Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 : 1956 Cri LJ 140] the Constitution Bench of this Court was considering what is the scope and meaning of a somewhat similar expression 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' occurring in Section 197 of the Criminal Procedure Code (5 of 1898). The Constitution Bench observed that no question of sanction can arise under Section 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. On the question as to which act falls within the ambit of abovequoted expression, the Constitution Bench concluded that there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim that he did it in the course of performance of his duty. While dealing with the question whether the need for sanction has to be considered as soon as the complaint is lodged and on the allegations contained therein, the Constitution Bench referred to Hori Ram Singh [Hori Ram Singh v. Crown, 1939 SCC OnLine FC 2 : AIR 1939 FC 43] and observed that at first sight, it seems as though there is some support for this view in Hori Ram Singh [Hori Ram Singh v. Crown, 1939 SCC OnLine FC 2 : AIR 1939 FC 43] because Sulaiman, J. has observed in the said judgment that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution and Varadachariar, J. has also stated that : (Matajog Dobey case [Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 : 1956 Cri LJ 140] , AIR p. 49, para 20) '20. ... the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceedings.' 31 *** The legal position is thus settled by the Constitution Bench in the above paragraph. Whether sanction is necessary or not may have to be determined from stage to stage. If, at the outset, the defence establishes that the act purported to be done is in execution of official duty, the complaint will have to be dismissed on that ground.
***
42. It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This Court has repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognised as legal by our criminal justice administration system. They amount to State- sponsored terrorism. But, one cannot be oblivious of the fact that there are cases where the police, who are performing their duty, are attacked and killed. There is a rise in such incidents and judicial notice must be taken of this fact. In such circumstances, while the police have to do their legal duty of arresting the criminals, they have also to protect themselves. The requirement of sanction to prosecute affords protection to the policemen, who are sometimes required to take drastic action against criminals to protect life and property of the people and to protect themselves against attack. Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel. The plea regarding sanction can be raised at the inception.
... ... ...
65. The law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly committed by a police officer under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, is well settled by this Court, inter alia by its decisions referred to above.32
66. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the Government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate Government.
67. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a policeman assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However, if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be.
68. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of the government sanction for initiation of criminal action against him.33
69. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.
70. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law."
(Emphasis supplied) On a coalesce of the judgments rendered by the Apex Court as afore-quoted, what would unmistakably emerge is, prosecution cannot continue against public servants, if the acts alleged against such public servants were in the course of discharge of their official duty or has reasonable nexus to the discharge of official duty. An illustration is also given by the Apex Court in all the above cases as to what would amount to discharge of official duty and what would amount to personal offence and the unmistakable inference that can be drawn in the considered view of this Court, is that, if there is 34 nexus qua the allegation to the discharge of official duty, sanction for such prosecution of public servant is imperative. On the bedrock of the principles laid down by the Apex Court in the aforesaid cases, the case at hand is required to be noticed.
12. The afore-narrated facts of the genesis of the issue are not in dispute and, therefore, are not reiterated. The scam got erupted on a sting operation on 06-03-2015. This led to the CID registering a crime against Pari Rajan and others which is now pending trial before the JMFC, Bangarpet in C.C.No.758 of 2015.
But, the entire matter was later handed over to the CBI. The CBI registered a crime against PAri Rajan and all these petitioners for offences punishable as afore-quoted. The CBI after investigation filed a charge sheet in the matter. The relevant paragraphs of the charge sheet that are germane for consideration are as follows:
".... .... .... ....
q) As per the Examination Report of CFSL, New Delhi, 07
(.pdf) files, namely, BT010415.pdf, BT020415.pdf, BT030415.pdf, BT040415.pdf, BT050415.pdf, BT060415.pdf and BT260415.pdf, containing data related to the aforesaid 13 Result Sheets were retrieved from a computer hard disk drive of erstwhile EE&LPW Bangalore East PS, with their date and time of creation as 30.04.2015 at 09.10.44pm, 09.11.38pm, 09.12.48pm, 35 09.14.17pm, 09.14.55pm, 09.15.28pm and 09.42.38pm respectively. It is pertinent to mention that 13 copy of Result sheets seized by EE&LPW officers/officials from the residence of Parirajan are exactly the same as the 13 Result sheets retrieved by CFSL, New Delhi from the hard disk drive of erstwhile EE&LPW Bangalore East PS. It is also pertinent that PSI R. Raviprakash had worked on the computer of EE&LPW Bangalore East PS for around 1-1½ hours and taken printouts, before leaving the PS at around 10pm on 30.04.2015 for EE&LPW, Bangalore West PS, which matches with the time of creation of these files as mentioned above.
r) As per the Examination Report of CFSL, New Delhi, one file, namely, New Microsoft Office Excel Worksheet.xlsx, was retrieved from a computer hard disk drive of erstwhile EE&LPW Bangalore West PS with its date and time of creation as 01.05.2015 at 12.28.41 am. It is pertinent to mention that the said MS Excel file contained details (including the date, name, series/number, value) of 633 lottery tickets/chits, importantly including the details of more than 200 lottery tickets/chits which are part of the 461 lottery tickets/chits shown to have been seized by EE&LPW officers/officials from the residence of Parirajan @ Rajan on 01.05.2015. It is also pertinent that PSI R. Raviprakash had stayed at EE&LPW Bangalore West PS on the intervening night of 30.04.2015/01.05. 2015.
s) From the retrieval of the aforesaid (.) pdf files from the hard disk drive of computer of erstwhile Bangalore East PS with their date and time of creation as 30.04.2015 during 09.10 pm- 09:42 pm and retrieval of aforesaid MS excel file from the hard disk drive of computer of erstwhile Bangalore West PS with its date and time of creation as 01.05.2015 at 12.28.41 am, it is clearly revealed that EE&LPW officers/officials were already in possession of the aforesaid copy of the Result sheets and Lottery tickets/chits with before the same were shown to have been seized from the 36 residence of Parirajan on 01.05.2015 during 02 am- 03.30 am. Thus it is clear that the copy of Result sheets and Lottery tickets/chits were planted by the EE&LPW officers for seizure from the residence of Parirajan @ Rajan in order to book a case against him.
t) PSI R. Raviprakash had left is PS at about 10 pm on 30.04.2015 after working on the PS computer and taking printout, but he made false entry in the PS Station Diary showing him leaving his PS at 08 pm with an ulterior motive of masking his role in creating evidence which was seized from the house of Parirajan later.
u) While Parirajan was on police remand, vide a Seizure Panchanama dated 10.05.2015, one mobile phone (Samsung Galaxy Grand) of Parirajan @ Rajan was seized by PI Kanakalakshami B.M. (IO) from G. Shanmugam @ Kutty. The Panchanama was signed by PI Kanakalakshami B. M. and HC B. S. Venugopal (who also wrote the Seizure Panchanama), besides G. Shanmugam, Parirajan and two fake witnesses. The said mobile phone was already in possession/available with EE&LPW police officials since 08.05.2015 night, but the same was falsely shown seized/recovered from G. Shanmugam on 10.05.2015. One Ninge Gowda, S/o Shivalinge Gowda and Ravish, S/o Rame Gowda, both Contract JEs, KPTCL, HBR Layout, Bengaluru and R/o Vill.- H. Basavapura, PS- Halaguru Hobali, Taluka- Malavalli, Distt.- Mandya were though shown as independent witnesses in the Panchnama, but against their names, Anand (S/o Shivalinge Gowda) and Yogesh (S/o Gulli Gowda), both R/o Vill Delavaikodihalli, PS-Halaguru Hobali, Taluka- Malawalli, Distt.-Mandya were made to sign respectively. Neither there was any person by name Ninge Gowda S/o Shivalinge Gowda or Ravish Slo Rame Gowda at the said village-H.. Basavapura, P.S.- Halaguru Hobali, Taluka- Malavalli, Distt.- Mandya nor contract JEs at Karnataka Power Transmission Corporation Limited (KPTCL), HBR Layout, Bengaluru. The services of the said signatory witnesses was arranged by PS R. Raviprakash and utilized by PI Kanakalakshami BM, IO.
37v) From the facts and circumstances of the case and the material available on record, it is established that the accused EE&LPW officers/officials acted with mala-fide and showed false/bogus seizure of the Lottery ticket chits/copy of Result sheets from the house/ residence of Parirajan @ Rajan and false/bogus seizure of mobile phone of Parirajan from G. Shanmugam. The Lottery ticket chits/copy of Result sheets were planted by the accused EE&LPW officers for showing their seizure from the house/residence of Parirajan. The lottery tickets so seized by EE&LPW officers/officials were also not genuine lottery tickets.
w) In view of the aforesaid and circumstances, Parirajan @ Rajan, against whom charge sheet has been filed in the aforesaid FIR No.64/2015 of EE&LPW KGF PS, Bangarpet on 29.06.2015, merits consideration for discharge.
Charge (Attached separate sheet, if necessary)
x) From the facts and circumstances of the case and the materials on record, a case is well made out for prosecution against accused B.A. Padmanayan (A-1), Kanakalakshmi B.M. (A-2), G.T. Sway (A-3), C.R. Ranganatha (A-4), M.J.. Lokesh (A-5), B.N.Srikarta (A-6). R.Raviprakash (A-7), B. M. Thippeswamy (A-8), B. S. Venugopal (A-9) and Ravikumar D. (A-10), under Section 120-B, 167, 182, 193, 195, 211, 218 IPC and substantive offences thereof. Hence, this Charge sheet is submitted against the aforesaid accused officers/officials (A-1 to A-10), with a request that the accused may be tried as per the procedures of the Law. Sanction for prosecution against the accused officers/officials have been sought from the Govt. of Karnataka under relevant sections of Law and the same will be submitted before the Hon'ble Court, as and when received."
(Emphasis applied) 38 The aforesaid findings in the charge sheet which formed a charge was placed before the concerned Court. While filing the charge sheet, in the last paragraph i.e., paragraph (x) it was opined "with a request that the accused may be tried as per the procedures of the law." After receipt of sanction is also indicated. By then sanction for prosecution had been sought from the Government and, it has not yet seen the light of the day. The said charge sheet was before the learned Magistrate who took the same for consideration on 14-01-2020 and takes cognizance of the offences by the following order:
"Perused the charge sheet and other records. Cognizance taken for the offences punishable under Section 120B r/w 167, 182, 193, 195, 211, 218 of IPC against the accused No.1 to 10.
Office to register the case as CC and Call on 25.02.2020."
(Emphasis applied) Taking cognizance, the learned Magistrate directs the matter to be listed on 25-02-2020 for commencement of further proceedings. It is at that juncture the petitioners have knocked the doors of this Court.
3913. The allegation against the petitioners, as could be gathered from the afore-quoted charge sheet, is that the petitioners have, with mala fide intention, showed all bogus seizure of lottery ticket chits, copy of result sheets from the house/residence of Pari Rajan and also false/bogus seizure of mobile phone of Pari Rajan.
The lottery ticket chits or the result sheets were planted by the petitioners herein showing their seizure from the house of Pari Rajan and the lottery tickets were also not genuine is what is alleged. The very charge sheet filed notices the fact that sanction for prosecution against the accused has been sought from the Government of Karnataka and will be submitted before the Court as and when received. Therefore, it is an admitted fact that there is no sanction to prosecute the petitioners placed before the Court or before this Court even as on date.
14. The contention of the learned counsel for the CBI is that sanction for the acts of the petitioner is not required notwithstanding the fact that they had themselves opined that sanction was imperative to prosecute the petitioners. Therefore, the 40 submission runs counter to the record. Even otherwise, the allegations made against the petitioners are for offences punishable under Sections 120B, 167, 182, 193, 195, 211 and 218 of the IPC.
Sections 167, 182, 192, 193, 195, 211 and 218 of the IPC read as follows:
"167. Public servant framing an incorrect document with intent to cause injury.--Whoever, being a public servant, and being, as [such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record] in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
182. False information, with intent to cause public servant to use his lawful power to the injury of another person.--Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant--
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
192. Fabricating false evidence.--Whoever causes any circumstance to exist or makes any false entry in any book or record, 225[or electronic record] or makes any 41 document 226[or electronic record] containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said "to fabricate false evidence".
Illustrations
(a) A, puts jewels into a box belonging to Z, with the intention that they may be found in that box, and that this circumstance may cause Z to be convicted of theft. A has fabricated false evidence.
(b) A makes a false entry in his shop-book for the purpose of using it as corroborative evidence in a Court of Justice. A has fabricated false evidence.
(c) A, with the intention of causing Z to be convicted of a criminal conspiracy, writes a letter in imitation of Z's handwriting, purporting to be addressed to an accomplice in such criminal conspiracy, and puts the letter in a place which he knows that the officers of the police are likely to search. A has fabricated false evidence.
193. Punishment for false evidence.--Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
42 227Explanation 1.--A trial before a Court-martial [* * *] is a judicial proceeding.
Explanation 2.--An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of judicial proceeding, though that investigation may not take place before a Court of Justice.
Illustration A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to be committed for trial, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding, A has given false evidence.
Explanation 3.--An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.
Illustration A, in an enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding, A has given false evidence
195. Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment.--Whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which [by the law for the time being in force in [India]] is not capital, but punishable with [imprisonment for life], or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished.
Illustration 43 A gives false evidence before a Court of Justice, intending thereby to cause Z to be convicted of a dacoity. The punishment of dacoity is [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, with or without fine. A, therefore, is liable to [imprisonment for life] or imprisonment, with or without fine.
211. False charge of offence made with intent to injure.--Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
218. Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture.--Whoever, being a public servant, and being as such public servant, charged with the preparation of any record or other writing, frames that record or writing in a manner which he knows to be incorrect, with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury to the public or to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 167 deals with an act of a public servant framing an incorrect document with intent to cause injury. Section 182 deals with intent of the public servant to use his lawful power to the 44 injury of another person. Section 192 is an offshoot of the aforesaid which deals with fabricating false evidence. Section 193 deals with punishment for false evidence. Section 195 is again an offshoot of the aforesaid which deals with giving or fabricating false evidence with intent to procure conviction. Section 211 again makes false charge of offence to injure a person and Section 218 deals with framing incorrect record. All these charges are laid against the petitioners on the ground that during the search and seizure conducted in the house of Pari Rajan, false documents were created. The charge itself has indicated that it is during search and seizure; if it is during search and seizure; it cannot but be in the discharge of their official duty; if the acts are done in the discharge of their official duty or has nexus to the discharge of their official duty, the prosecution cannot continue without the sanction.
Therefore, on the admitted fact that all the charges against the petitioners relate to search and seizure conducted in the house of Pari Rajan who has now been given a clean chit, the order of cognizance would tumble down, as it is taken without awaiting order of sanction from the hands of the Competent Authority.
4515. The other offence so alleged is Section 120B of the IPC which deals with punishment for criminal conspiracy. The criminal conspiracy is alleged against these petitioners for the afore-quoted offences which would also require sanction at the hands of the Competent Authority. The submission of the learned counsel for the CBI that for the acts which would become aforesaid offences no sanction is required is unacceptable, as it is fundamentally flawed.
It is germane, at this juncture, to notice the subsequent judgment of the Apex Court in the case of INDRA DEVI v. STATE OF RAJASTHAN5 against whom the offences alleged were the ones punishable under Sections 420, 467, 468, 471, 120B and 3(1)(iv), 3(xv) and 3(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Apex Court considering the necessity of sanction even for the aforesaid offences has held as follows:
"10. We have given our thought to the submissions of the learned counsel for the parties. Section 197 CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognizance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to 5 (2021) 8 SCC 768 46 protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance.
(See Subramanian Swamy v. Manmohan Singh [Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64: (2012) 1 SCC (Cri) 1041:(2012) 2 SCC (L&S) 666].) The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him "while acting or purporting to act in the discharge of his official duty" and in order to find out whether the alleged offence is committed "while acting or purporting to act in the discharge of his official duty", the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties. (See State of Maharashtra v. Budhikota Subbarao [State of Maharashtra v. Budhikota Subbarao, (1993) 3 SCC 339: 1993 SCC (Cri) 901].) The real question, therefore, is whether the act committed is directly concerned with the official duty.
11. We have to apply the aforesaid test to the facts of the present case. In that behalf, the factum of Respondent 2 not being named in the FIR is not of much significance as the alleged role came to light later on. However, what is of significance is the role assigned to him in the alleged infraction i.e. conspiring with his superiors. What emerges therefrom is that insofar as the processing of the papers was concerned, Surendra Kumar Mathur, the Executive Officer, had put his initials to the relevant papers which was held in discharge of his official duties. Not only that, Sandeep Mathur, who was part of the alleged transaction, was also similarly granted protection. The work which was assigned to Respondent 2 pertained to the subject-matter of allotment, regularisation, conversion of agricultural land and fell within his domain of work. In the processing of application of Megharam, the file was initially put up to the Executive Officer who directed the inspection and the inspection was carried out by the Junior Engineer and only thereafter the Municipal Commissioner signed the file. The result is that the superior officers, who have dealt with the file, have been granted protection while 47 the clerk, who did the paper work i.e. Respondent 2, has been denied similar protection by the trial court even though the allegation is of really conspiring with his superior officers. Neither the State nor the complainant appealed against the protection granted under Section 197 CrPC qua these two other officers.
12. We are, thus, not able to appreciate why a similar protection ought not to be granted to Respondent 2 as was done in the case of the other two officials by the trial court and High Court, respectively. The sanction from the competent authority would be required to take cognizance and no sanction had been obtained in respect of any of the officers. It is in view thereof that in respect of the other two officers, the proceedings were quashed and that is what the High Court has directed in the present case as well."
(Emphasis supplied)
16. In the light of admitted and recorded fact that there was no sanction to prosecute the petitioners, the acceptance of charge sheet, taking cognizance and issuing summons, had to await the sanction by the Competent Authority. The order of the learned Magistrate dated 14-01-2020 taking cognizance of the offences runs counter to Section 197 of the Cr.P.C. and its interpretation by the Apex Court in the aforesaid judgments. In the light of sanction cutting at the root of the matter, the other issue on merits of the matter would not arise for consideration at this juncture.
4817. Insofar as petitioner Nos.1 and 4 in Crl.P.No.1144/2020 are concerned, it is the specific statement of the learned counsel for the CBI that they are retired from service and there need not be any sanction for their prosecution, at least, in these cases is also unacceptable, as the Apex Court in the case of STATE OF PUNJAB v. LABH SINGH6 while considering this very issue has held as follows:
"9. In the present case the public servants in question had retired on 13-12-1999 and 30-4-2000. The sanction to prosecute them was rejected subsequent to their retirement i.e. first on 13-9-2000 and later on 24-9-2003. The public servants having retired from service there was no occasion to consider grant of sanction under Section 19 of the PC Act. The law on the point is quite clear that sanction to prosecute the public servant for the offences under the PC Act is not required if the public servant had already retired on the date of cognizance by the court. In S.A. Venkataraman v. State [S.A. Venkataraman v. State, AIR 1958 SC 107: 1958 Cri LJ 254:
1958 SCR 1040] while construing Section 6(1) of the Prevention of Corruption Act, 1947 which provision is in pari materia with Section 19(1) of the PC Act, this Court held that no sanction was necessary in the case of a person who had ceased to be the public servant at the time the court was asked to take cognizance. The view taken in S.A. Venkataraman [S.A. Venkataraman v. State, AIR 1958 SC 107: 1958 Cri LJ 254: 1958 SCR 1040] was adopted by this Court in C.R. Bansi v. State of Maharashtra [C.R. Bansi v. State of Maharashtra, (1970) 3 SCC 537: 1971 SCC (Cri) 143] and in Kalicharan Mahapatra v. State of Orissa [Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411: 1998 SCC (Cri) 1455] and by the Constitution Bench of this Court in K. Veeraswami v. Union of India [K. 6 (2014) 16 SCC 807 49 Veeraswami v. Union of India, (1991) 3 SCC 655: 1991 SCC (Cri) 734]. The High Court was not therefore justified in setting aside the order passed by the Special Judge insofar as charge under the PC Act was concerned.
10. However as regards charges for the offences punishable under the Penal Code, the High Court was absolutely right in setting aside the order of the Special Judge. Unlike Section 19 of the PC Act, the protection under Section 197 CrPC is available to the public servant concerned even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13.9.2000 and secondly on 24-9-2003, the Court could not have taken cognizance insofar as the offences punishable under the Penal Code are concerned. As laid down by this Court in State of H.P. v. Nishant Sareen [State of H.P. v. Nishant Sareen, (2010) 14 SCC 527: (2011) 3 SCC (Cri) 836], the recourse in such cases is either to challenge the order of the sanctioning authority or to approach it again if there is any fresh material."
The Apex Court holds that unlike Section 19 of the PC Act, protection under Section 197 of the Cr.P.C. is available to the public servant concerned even after his retirement. Therefore, the submission of the learned counsel for the CBI that prosecution should be permitted de hors sanction against petitioners 1 and 4 who have ceased to be public servants on attaining their age of superannuation, is also unacceptable. Sanction for prosecution, be it for other petitioners, who are still public servants in service or petitioners 1 and 4 who have retired from service is imperative qua the facts of this case. In the light of the facts obtaining in the cases 50 at hand and the judgment of the Apex Court as afore-quoted, permitting further proceedings would amount to abuse of the process of the law and result in miscarriage of justice.
18. For the aforesaid reasons, I pass the following:
ORDER
(i) Criminal Petitions are allowed in part.
(ii) The order taking cognizance dated 14-01-2020 stands quashed.
(iii) Liberty is reserved to the prosecution to seek sanction from the hands of the Competent Authority and if granted, place it before the concerned Court.
(iv) Till such time, the concerned Court shall not proceed further, in the event, sanction at the hands of the competent authority is placed before the concerned Court, the proceedings shall continue from the stage of issuance of process.
(v) All contentions of both the parties except to the extent considered in this order are left open.
Consequently, I.A.No.1/2020 pending in Crl.P.No.1545/2020 also stands disposed.
Sd/-
JUDGE bkp