Telangana High Court
Lt. Gen. Malhotra vs The State Of Telangana on 5 November, 2024
THE HONOURABLE SMT JUSTICE K. SUJANA
CRIMINAL PETITION No.6455 of 2023
ORDER:
This Criminal Petition is filed under Section 482 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') to quash the proceedings against the petitioners/accused Nos.1 to 7 in Crime No.91 of 2023 of Karkhana Police Station, Hyderabad, registered for the offences punishable under Sections 406, 420, 464, 465, 468, 469, 471, 500 of the Indian Penal Code, 1860 (for short 'IPC') and Section 156 (3) of Cr.P.C.
2. The brief facts of the case are that respondent No.2/de facto complainant received permission from the learned XI Additional Chief Metropolitan Magistrate, for taking cognizance and registering the case against the petitioners stating that respondent No.2, a Brigadier in Directorate General of Quality Assurance (for short 'DGQA'), was subjected to a de novo Fact Finding Inquiry (for short 'inquiry') conducted by petitioner Nos.1 and 2. The inquiry report contained forged financial documents supplied by Petitioner Nos.5 and 6. The original documents showed expenditure of 2 SKS,J Crl.P.No.6455 of 2023 Rs.8,06,162/-, while the forged documents claimed Rs.12,60,541/-. It is further stated that DGQA confirmed the forgery. Petitioner Nos.1 and 2 prepared tentative charges using these forged documents. Petitioner No.7 was responsible for replacing original documents with forgeries. It is alleged that though Respondent No. 2 informed the Army Authorities and DGQA, the Petitioner Nos.3 and 4 (then DG DGQA and Director Vigilance Cell) did not take any action and on contrary, they had cleared the forged documents. It is further stated that the inquiry violated Army Rule 180 and Army HQ AG Branch Policy, requiring the presence and signatures of respondent No.2 on each page. Petitioner Nos.1 and 2, being hand in hand with Petitioner Nos.5 to 7, ignored the said Rule to forge documents. On repeated reminders, Petitioner Nos.1 and 2 falsely claimed that respondent No.2 stated "no action is required" through letters dated 03.04.2021 and 30.03.2021.
3. Heard Sri B. Narasimha Sarma, learned Additional Solicitor General of India appearing for Sri Gadi Praveen Kumar, learned Deputy Solicitor General of India, for the petitioners, as well as, Sri S. Ganesh, learned Assistant Public 3 SKS,J Crl.P.No.6455 of 2023 Prosecutor appearing on behalf of respondent No.1-State and Sri Vikram Ahooja, party-in-person for respondent No.2.
4. Learned Additional Solicitor General of India appearing on behalf of the petitioners submitted that respondent No.2 filed Writ Petition No.16914 of 2019, seeking vigilance clearance and promotion to Major General, without mentioning the allegations and this Court allowed the petition, which was upheld on appeal. He further submitted that respondent No.2 also filed Writ Petition No.17075 of 2021, challenging the Fact Finding Inquiry and disciplinary proceedings and that the Raksha Mantri approved disciplinary action.
5. Learned Additional Solicitor General of India appearing for the petitioners further submitted that the petitioners are under the immunity available under Section 197 of Cr.P.C as they are Central Government headed defense Officials. He further submitted that respondent No.2 lodged complaint with a delay of three-years and without assigning any satisfactory explanation for the said delay. That apart, no prior sanction from the concerned Authority was obtained before lodging the 4 SKS,J Crl.P.No.6455 of 2023 complaint. Therefore, the allegations leveled against the petitioners are vague and baseless as there is a lack of specific allegations against each petitioner and prayed the Court to quash the proceedings against them.
6. Learned party-in-person/respondent No.2 filed counter affidavit, sturdily opposing the contentions made by learned Additional Solicitor General, appearing for petitioners. He contended that there is no requirement of prior sanction as per Section 197 of Cr.P.C., as forgery and fabrication of records for personal gains do not form part of Official duties of public servant. In support of the said contention, he relied on the judgment of the Hon'ble Supreme Court in the case of Station House Officer, CBI/ACB/Bangalore Vs. BA.Srinivas and Another 1 . The relevant paragraph No.14 of the said judgment reads as under:
"14. Again, it has consistently been laid down that the protection under Section 197 of the Code is available to the public servants when an offence is said to have been committed "while acting or purporting to act in discharge of their official duty", but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected. The statements of law in some of 1 2020 2 SCC 153 5 SKS,J Crl.P.No.6455 of 2023 the earlier decisions were culled out by this Court in Inspector of Police v. Battenapatla Venkata Ratnam [Inspector of Police v. Battenapatla Venkata Ratnam, (2015) 13 SCC 87 : (2016) 1 SCC (Cri) 164] as under: (SCC pp. 89-90, paras 7-9)
"7. No doubt, while the respondents indulged in the alleged criminal conduct, they had been working as public servants. The question is not whether they were in service or on duty or not but whether the alleged offences have been committed by them 'while acting or purporting to act in discharge of their official duty'. That question is no more res integra. In Shambhoo Nath Misra v. State of U.P. [Shambhoo Nath Misra v. State of U.P., (1997) 5 SCC 326 :
1997 SCC (Cri) 676] , SCC para 5, this Court held that:
(SCC p. 328) '5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund, etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds, etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund, etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court [Shambhoo Nath Mishra v. State of U.P., 1995 SCC OnLine All 492 : (1995) 32 ACC 775] as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained.' 6 SKS,J Crl.P.No.6455 of 2023
8. In Parkash Singh Badal v. State of Punjab [Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] , at para 20 this Court held that: (SCC pp. 22-23) '20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.' and thereafter, at para 38, it was further held that:
(Parkash Singh Badal case [Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] , SCC p. 32) '38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.'
9. In a recent decision in Rajib Ranjan v. R. Vijaykumar [Rajib Ranjan v. R. Vijaykumar, (2015) 1 SCC 513 : (2015) 1 SCC (Cri) 714] , SCC at para 18, this Court has taken the view that: (SCC p. 521) '18. ... even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official 7 SKS,J Crl.P.No.6455 of 2023 duties and, therefore, provisions of Section 197 of the Code will not be attracted.' "
(emphasis in original)"
7. Respondent No.2 further submitted that since the Court did not order notice to the petitioners, prior sanction is not required for registering the case and submitted that sanction is necessary only for taking cognizance. He also pointed out that he had already raised similar concerns by way of filing the writ petitions but the documents were not provided to prove the claims at that time. Moreover, he submitted that since the criminal action involves forgery and fabricated documents, sanction is not necessary. Therefore, he prayed the Court to dismiss the criminal petition.
8. In the light of the submissions made by both the learned counsel and a perusal of the material available on record, it is noted that respondent No.2 specifically alleged that petitioner Nos.1 and 2 used forged documents to prepare charges against him and Petitioner No.7 was responsible for replacing original documents. Further, petitioner Nos.3 and 4 - Directors at DGQA, had not taken any action against 8 SKS,J Crl.P.No.6455 of 2023 the alleged forgery and fabrication. In essence, respondent No.2 is seeking dismissal of the petition, emphasizing the lack of notice and the nature of the criminal charges and this highlights the complexities of legal proceedings, where the nuances of jurisdiction, notice, and sanction can significantly impact the outcome.
9. As seen from the record, Writ Petition No.16914 of 2019 was filed by respondent No.2 seeking vigilance clearance and promotion to Major General. However, the said petition did not mention the allegations of forgery that were later raised in the present complaint. Further, Writ Petition No.17075 of 2021 was filed challenging the Fact Finding Inquiry and disciplinary proceedings initiated against respondent No.2 and even then there was no mention of forgery allegations in the said petition. That being so, it is noted that respondent No.2 had filed these writ petitions before filing the complaint, without there being any whisper regarding the alleged forgery and fabrication and thereafter, questions relating to the alleged forgery and fabrication were raised which gives rise to the intention of delay and motivations on the part of respondent No.2, behind the lodging of complaint. That apart, it is 9 SKS,J Crl.P.No.6455 of 2023 relevant to mention that as the respondent No.2 failed to file any strong evidence in support of his allegations relating to forgery and fabrication, the petitioners had acted in line with departmental directions by considering the material available on record thereof. Therefore, it can be observed that there is no force in the contentions made by respondent No.2.
10. In view of the above discussion, it is held that prima facie, the complaint lacks evidence and there are no ingredients to show that the petitioners forged the documents and enhanced expenditure. In other words, involvement of petitioners in the alleged forgery and fabrication lacks evidence and does not prove anything against the petitioners. Further, filing of complaint after the adverse outcome of inquiry suggests malice as the earlier writ petitions had no mention with regard to the alleged forgery. That apart, the contention whether the alleged offences have been committed by petitioners 'while acting or purporting to act in discharge of their official duty' has no relevance as there is no evidence that would prove the involvement of petitioners in the forgery. Further, as there is no prior sanction from the concerned 10 SKS,J Crl.P.No.6455 of 2023 authorities, continuation of proceedings against the petitioners is nothing but abuse of process of law.
11. Therefore, this Court opines that the averments in the complaint lodged by respondent NO.2 do not constitute the offences as alleged against the petitioners, hence, the proceedings initiated against them are liable to be quashed.
12. In view thereof, this Criminal Petition is allowed and the proceedings against the petitioners in Crime No.91 of 2023 of Karkhana Police Station, Hyderabad, are hereby quashed.
Miscellaneous applications, if any pending, shall stand closed.
_______________ K. SUJANA, J Date: 05.11.2024 sai