Dr B M Mohan vs The State Of Karnataka
2021 Latest Caselaw 5291 Kant

                          1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 2ND DAY OF DECEMBER, 2021

                     BEFORE

     THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

           CRIMINAL PETITION No.988/2018

BETWEEN

DR. B. M. MOHAN
AGED ABOUT 65 YEARS,
S/O LATE MUTHAIAH
NO.8
BSR MANTHRALAYA
APARTMENT COMPLEX
IIND SECTOR, 19TH MAIN
26TH CROSS, HSR LAYOUT
BANGALORE - 560 102
                                     ... PETITIONER

[BY SRI M.T. NANAIAH, SENIOR ADVOCATE FOR
    SRI. PRABHUGOUD B. TUMBIGI, ADVOCATE
    (PHYSICAL HEARING)]

AND

1.    THE STATE OF KARNATAKA
      BY MADIWAL POLICE
      BENGALURU
      REPRESENTED BY
      STATE PUBLIC PROSECUTOR
      HIGH COURT BUILDING
      BANGALORE - 560 001

2.    M. L. PURUSHOTHAM
      INSPECTOR OF POLICE
      MADIWALA POLICE STATION
                               2



     MADIWALA
     BENGALURU - 560 068
                                        ... RESPONDENTS

[BY SRI. R.D. RENUKARADHYA, HCGP FOR R1
    (PHYSICAL HEARING)
    R2 - SERVED]

     THIS CRIMINAL PETITION IS FILED U/S.482 OF THE
CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS
IN C.C.NO.6925/2016 REGISTERED BY THE 1ST
RESPONDENT POLICE FOR THE OFFENCE P/U/S 166, 218
OF IPC PENDING ON THE FILE OF III ADDL.C.M.M.,
BENGALURU AGAINST THE PETITIONER AND DISMISSED
THE COMPLAINT.

    THIS CRIMINAL PETITION COMING ON                   FOR
ADMISSION THIS DAY, THE COURT MADE                     THE
FOLLOWING:
                        ORDER

The petitioner is before this Court calling in

question the proceedings pending in C.C.No.6925/2016

before the III Additional C.M.M., Bangalore for offences

punishable under Sections 166 and 218 of the IPC.

2. Heard Sri. M.T. Naniah, learned Senior

counsel appearing for the petitioner, Sri. R.D.

Renukaradhya, learned HCGP appearing for respondent

No.1 and have perused the material on record.

3. Brief facts leading to the filing of present writ

petition, as borne out from the pleadings are as follows:

The petitioner at the relevant point in time was

working as a Director of the Forensic Science

Laboratories (hereinafter referred to as 'FSL' for short).

It transpires that certain documents pertaining to a

criminal case pending in Crime No.12/2007 for offences

punishable under Sections 380, 406, 420, 468, 471,

120B of IPC against several persons. The documents

which had been investigated into those offences by the

jurisdictional police had been sent to the FSL.

The petitioner is the Director and Head of the

laboratory. An application is filed by one Kishan under

the Right to Information Act, 2005 seeking those

documents that were transmitted by the Investigating

Officer before the FSL. The documents which were a

part of investigation were released by the FSL by the

Assistant Director, to which, the petitioner had affixed

his signature.

4. Learned Senior counsel appearing for the

petitioner would submit that the petitioner is not aware

of the contents of the application made and had affixed

his signature in the normal course. Be that as it may.

5. The cognizance for the offences punishable

under Sections 166 and 218 of the IPC is taken by the

Criminal Court without at the outset, the prosecution

producing a valid sanction for such prosecution by the

competent authority. As at the time, when the

investigation was ordered, the petitioner was still a

public servant and when the charge sheet is filed in the

year 2016, the petitioner had ceased to be a

Government Servant on account of his attaining the age

of superannuation.

6. If the petitioner were to be a public servant,

sanction under Section 197 of the Cr.P.C. was

mandatory to be obtained. Even the petitioner would be

retired employee, at the time, when the charge sheet is

filed, sanction under Section 197 of the Cr.P.C. is a

mandatory prerequisite for the proceedings of the trial

against the petitioner. It is an admitted fact that in the

case at hand there is no sanction accorded by the

competent authority to prosecute the petitioner. The law

in this regard is no longer res integra in the light of the

judgment of the Apex Court in the case of STATE OF

PUNJAB v. LABH SINGH1 wherein it is 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. Venkata-

raman 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

(2014) 16 SCC 807

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. 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."

(emphasis supplied)

In the light of the law laid down by the Apex Court in

the aforesaid judgment, the proceedings against the

petitioner notwithstanding the fact that he is a retired

employee can proceed only after a valid sanction is

accorded and placed before the Court hearing the case

in C.C.No.6925/2016.

7. For the aforesaid reasons, the following:

ORDER

i. Criminal petition stands disposed.

ii. The matter is remitted to the hands of the

State Government to pass appropriate orders

in terms of grant of sanction for prosecution

under Section 197 of the Cr.P.C.

iii. The trial Court is restrained from proceeding

any further in the trial against the petitioner,

till a valid sanction is produced by the

prosecuting agency.

iv. The state Government shall take necessary

action and pass appropriate orders under

Section 197 of the Cr.P.C. within three

months from the date of receipt of a copy of

this order.

Sd/-

JUDGE

SJK