Mr B Arun vs Karnataka State Police
2021 Latest Caselaw 6042 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 14 T H DAY OF DECEMBER, 2021

                        BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

     WRIT PETITION NO.20194 OF 2021(GM-RES)


BETWEEN:


1.    Mr. B Arun
      Aged about 34 years,
      Income Tax Officer,
      Income Tax Office,
      C.R.Building, Queens Road ,
      Beng aluru-560001

      Presently Working as
      Dep uty Commissioner
      Of Income Tax-TDS,
      Circle-1(1).

2.    Mr. S Arun Kumar
      Income Tax Officer,
      Income Tax Office,
      C.R.Building, Queens Road ,
      Beng aluru-560001

      Presently Working as
      Dep uty Director
      Of Income Tax-Inv,
      Unit-1(1).

3.    Mr. Rohit Sharma
      Income Tax Officer,
      Income Tax Office,
      C.R.Building, Queens Road ,
      Beng aluru-560001
                           :: 2 ::


     Presently Working as
     Income Tax Inspector-Inv
     Unit-3(2)                                    ...Petitioners

(By Sri M.B.Naragund, Addl. Solicitor General, for
    Sri K.V.Aravind, Advocate)


AND:


1.   Karnataka State Police,
     Kodig ehalli Police Station,
     3H5M+C5F,
     BB Nag ar, Koti Hosahalli,
     Beng aluru-560092.

2.   Mr. Pawan Kumar Sachdeva
     S/o Late Buta Ram
     Aged about 49 years,
     Residing at
     No.2, Anand a Extension,
     Vidyaranyapuram (P.O),
     Beng aluru-560097.
                                              ...Respondents
(By Sri B.J.Rohith, HCGP for R1;
    Sri K.Diwakara, Advocate for R2)


     This Writ Petition is filed under Article 226 of the
Constitution of India read with Section 482 of Criminal
Procedure    Cod e,   praying       to    quash     the   PCR
No.10270/2019,    Annexure-W        and   consequential    FIR
filed by the R1 in Cr.No.59/2021 dated 20.04.2021
pend ing on the file of VII ACMM, Bengaluru produced
as Annexure-T to the Writ Petition and etc.


     This Writ Petition coming on for preliminary
hearing this day, the Court made the following:
                               :: 3 ::


                           ORDER

In this writ petition the petitioners have

sought a certiorari to quash the proceedings in

PCR 10270/2019 on the file of VII ACMM,

Bengaluru and the consequent FIR in Crime No.

59/2021 registered at Kodigehalli Police Station.

The facts necessary for disposal of this writ

petition are as follows:

2. The petitioners are all income tax officers.

In between the dates 7.8.2019 and 10.8.2019, a

raid was conducted by the office of the income tax

department at more than 20 places on the

premises of an industrial establishment namely A-

One Steels India Private Limited. In relation to

one such raid conducted in a premises situated at

Sahakarnagar, Bengaluru, the second respondent

herein made a complaint to the police alleging

excesses committed by the petitioners while

conducting the raid. The police did not take any :: 4 ::

action, rather issued non-cognizable offence report

(NCR). This prompted the second respondent to

approach the court of Magistrate with a complaint

under section 200 Cr.P.C to prosecute them in

relation to offences punishable under sections 324,

503, 506, 166, 120B read with 34 of IPC. The

learned Magistrate referred the matter to the

police for investigation under section 156(3)

Cr.P.C. Consequently, FIR in Crime No. 59/2021

came to be registered and the police issued

notices to the petitioners to appear for

investigation. Hence, this petition.

3. All the three petitioners herein along with

one Mr.Anand, Assistant Director of Income Tax,

on earlier occasion approached this court by filing

W.P.No.14567/2021. It was dismissed on

26.10.2021 as the writ petition was not verified by

the aggrieved party. Liberty was given to file a :: 5 ::

fresh writ petition and hence the petitioners are

again before this court.

4. I have heard Sri M.B.Nargund, learned

Additional Solicitor General, Sri K.Diwakara for

respondent No.2 and the Government Pleader for

respondent No.1.

5. Sri Nargund raised the following

contentions: -

(i) The raid was conducted at various

places by the officers of income tax

department in between 7.8.2019 and

10.8.2019. The petitioners exercised

their official duty being the officers of

the income tax department. Section

132 (4) of Income Tax Act empowers

the authorized officer to record

statement of any person who is found

to be in possession of books of :: 6 ::

accounts, money, bullion, etc., The

statement thus recorded during search

may be used during investigation. The

petitioners have produced copies of

the statements that they recorded

after examining the second respondent

at the time of search. Therefore this

shows that the petitioners did nothing

more than conducting a search in the

premises of the second respondent.

They exercised their official duty.

(ii) The second respondent approached the

Magistrate with a mala fide intention

to get over the information that the

petitioners extracted from him while

examining under section 132 of the

Income Tax Act.

(iii) The second respondent complains of

certain excesses committed by the

petitioners. He has stated that he was :: 7 ::

assaulted by the first petitioner and as

a result there was damage to his left

ear. It is found in the complaint that

he went to Bowring Hospital for

treatment, and if really the second

respondent had sustained such a kind

of injury as he has stated in the

complaint, the doctor who treated him

would have registered a medico-legal

case at that point of time. But, the

second respondent then went to

K.C.General Hospital for treatment and

thereafter went to the police station.

This itself is enough to show that if

really the second respondent had

suffered injury, in the first instance

the doctor at Bowring Hospital would

have passed on the information to the

police. Very interestingly the second

respondent went to Kodigehalli Police :: 8 ::

Station on 14.8.2019 and that the

police issued NCR opining that there

was no case for investigation. This

itself is enough to demonstrate

falsehood in the case of the second

respondent.

(iv) The complaint dated 13.8.2019

addressed to the Inspector of Police,

Kodigehalli Police Station, very clearly

shows that the other three persons

namely Pawan Kumar Jindal, Pankaj

Kumar Gidra and Sachin Dhanuka have

not signed it though their names are

typed. Only the second respondent

had signed it. That means the others

did not join for the reason that the

contents of the said complaint are not

correct. If it is read, there are

averments which show that Pawan

Kumar Jindal, Sachin Dhanuka were :: 9 ::

also tortured by the income tax

officers. The very fact that the others

did not come forward to sign is itself

sufficient to doubt the veracity of the

allegations made by the second

respondent in his private complaint

made before the court.

(v) One of the Directors of A-One Steel

and Alloys Limited made a report to

the police on 13.8.2019 alleging that

income tax officer by name Suresh

subjected Chand Pasha, Shamshuddin,

Ashif, Naveen Kumar to harassment

while conducting raid at Munirabad.

But the police filed 'B' report on that

FIR. This shows that the Directors of

A-One Steel and Alloys Limited

instigated their employees to make

false complaints against the officers of

the income tax department, in order to :: 10 ::

get over the information that the

officers collected while conducting

raid. This shows malafide intention.

(vi) When the complaint was filed before

the Magistrate, the affidavit required

to be filed in accordance with the ratio

in Priyanka Srivastava and Another

vs State of Uttar Pradesh and

others [(2015) 6 SCC 287], had not

been filed. According to the

respondent No.2, the affidavit has

been now submitted, but it does not

cure the legal requirement. The

proceedings do not get ratified.

(vii) Section 293 of the Income Tax Act

bars any proceedings either Civil or

Criminal against the officers of the

income tax department. In this view,

private complaint is not maintainable.

:: 11 ::

(viii) The complaint has been filed without

obtaining sanction as required under

Section 197 of Cr.P.C. Sanction is a

must because all the allegations

aspersed against the petitioners are in

connection with their discharging

official duties. Since now sanction was

obtained, the complaint should have

been dismissed by the Magistrate,

without taking cognizance.

6. Learned counsel for respondent No.2, Sri

Diwakara K, made the following submissions:

(i) Sanction is not necessary, because, in

the private complaint, one of the

offences alleged is under Section 166 of

IPC which deals with excesses committed

by the public servants while discharging

their official duty. If Section 353 IPC

deals with taking action against the :: 12 ::

persons who cause obstruction to the

performance of official duty by the public

servants, section 166 of IPC provides for

taking action against the public servants.

In this view, sanction is not necessary.

(ii) The petitioners have been issued with

notice under Section 41A of Cr.P.C., to

appear for interrogation. It is the duty

of everyone to appear for investigation

whenever the police issues notice. It

cannot be called harassment. The

petitioners have challenged this notice

and in this view, writ of certiorari cannot

be issued.

(iii) Even if sanction is necessary, it can be

obtained at any time, in accordance with

Section 173(8) of Cr.P.C.

(iv) The petitioners were under the wrong

impression that a verifying affidavit filed

along with the complaint would meet the :: 13 ::

requirement of the dictum of the

Supreme Court in Priyanka Srivastava.

Now that an affidavit has been filed, it

cures the defect. If according to the

petitioners, the Magistrate should not

have accepted the affidavit, the

petitioners should have challenged it

before this Court and that issue cannot

be raised now.

(v) The incident that has been complained of

in the complaint cannot be co-related

with the raid conducted at Munirabad.

The allegations made in the complaint

clearly show as to how the second

respondent was brutally harassed by the

petitioners. There is damage to the left

ear of the second respondent. This

shows that the petitioners exceeded their

limits in the guise of conducting raid. In

this view, the investigation has to go on :: 14 ::

and there cannot be interference by this

Court with the investigation process.

Hence this writ petition is to be

dismissed.

7. I have considered the arguments.

Before dealing with the main issues, one

argument of Sri Naragund in regard to non-

compliance of the mandate of Supreme Court in

the case of Priyanka Srivastava may be

considered. It is submitted by Sri Diwakara that

affidavit has been filed now. According to Sri

Naragund subsequent filing of affidavit does not

cure the requirement. What is held in the case

of Priyanka Srivastava is that if an affidavit is

filed along with the complaint in which a

reference to police under section 156(3) Cr.P.C

is sought, it makes the complainant more

responsible. It has been observed by the

Supreme Court that since the complaints are :: 15 ::

being filed in a routine manner without taking

any responsibility whatsoever in order to harass

certain persons, if the contents of the affidavit

are found to be false, the complainant can be

prosecuted for swearing to a false affidavit. It

is also necessary that the complainant must

state in the affidavit that before approaching

the court, he approached the police station and

then the Superintendent of Police. If these

ingredients are found in the complaint as also in

the affidavit, it enables the Magistrate to take

cognizance. Therefore though filing of affidavit

is made mandatory, in case it is not filed, it may

be cured by filing an affidavit at a subsequent

stage. It is a curable mandatory requirement.

Now, in this case it is stated that it is filed. The

procedural mandate appears to have been

complied with and therefore the argument of Sri

Naragund on this score is not sustainable.

:: 16 ::

8. Now coming to the main point, the

petitioners have sought to quash the

proceedings against them on the ground that

they have been falsely implicated to wreak

vengeance as they conducted search in the

premises of the company in which the

respondent No.2 is employed. Even if the

allegations made in the complaint are taken to

be true on their face value, so far as sanction is

concerned, what section 197 Cr.P.C. envisages

is that the court cannot take cognizance without

obtaining sanction. Sanction is absolutely

essential if the act amounting to an offence has

reasonable nexus with performance or discharge

of official duty. In D.Devaraja Vs. Owais

Sabeer Hussain - (2020) 7 SCC 695, the

position is made clear in the following

paragraphs.

"68. If in doing an official duty a policeman has acted in excess of :: 17 ::

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 government sanction for initiation of criminal action against him.

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."

(underlining by me)

9. Explanation to section 197 Cr.P.C. states

that sanction is not necessary if a public servant is

accused of committing offences under section :: 18 ::

166A, section 166B, section 354, sections 354A to

354D, section 370, section 375, section 376,

section 376A, section 376AB, section 376C, section

376D, section 376DA, section 376DB and section

509. Section 166 IPC is not there in the

explanation part, that means sanction is necessary

for the offence under section 166 IPC. Question is

at what stage sanction is to be obtained. The

answer to this question is found in the judgment of

the Supreme Court in the case of

D.T.Virupakshappa Vs. C. Subash (2015) 12

SCC 231. It is held

"5. The question, whether sanction is necessary or not, may arise at any stage of the proceedings, and in a given case, it may arise at the stage of inception as held by this Court in Om Prakash and others v. State of Jharkhand [(2012) 12 SCC 72]. To quote:

"41. The upshot of this discussion is that whether sanction is :: 19 ::

necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his official duty and is entitled to protection given under Section 197 of the Code. It is not possible for us to hold that in such a case, the court cannot look into any documents produced by the accused or the public servant concerned at the inception. The nature of the complaint may have to be kept in mind. It must be remembered that previous sanction is a precondition for taking cognizance of the offence and, therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea. ..."

:: 20 ::

10. Therefore, the question of obtaining

sanction may arise at any stage, and moreover, it

is for taking cognizance only. Production of

sanction is not necessary when a reference to

police under section 156(3) Cr.P.C. is sought. The

complainant's only grievance in his application

under section 156(3) Cr.P.C. is that the police did

not initiate any action when he approached the

police, and therefore seeks intervention of court

for the purpose of investigation. If the Magistrate

or the court decides to refer the case for

investigation under section 156(3) Cr.P.C., it does

not amount to taking cognizance; and only if the

investigating officer is able to collect evidence

showing commission of offence, he must apply for

sanction and obtain it for the purpose of

submitting charge sheet to the court. That means,

at the stage of taking cognizance sanction order

from the concerned government as envisaged in :: 21 ::

clauses (a) and (b) of Section 197(1) of Cr.P.C.

must be made available.

11. In the case on hand, cognizance is not yet

taken; the Magistrate has just ordered for

investigation under section 156(3) Cr.P.C. It is

too early to expect production of sanction order.

It may be seen that in the case of

D.T.Virupakshappa, the issue as regards sanction

emerged after the Magistrate took cognizance.

12. Then with regard to section 293 of Income

Tax Act, what is to be stated is that, though this

section bars suits or prosecution against the

government or any officer of the government, it

applies when anything is done in good faith. This

is a question of fact; it is not possible to draw any

inference at the inception whether act alleged

against the petitioners were done in good faith or

not. As of now, the petitioners have received

notice under section 41A Cr.P.C., that means they :: 22 ::

can explain the situation to the investigating

officer, and also produce all the materials

available with them, so that the investigating

officer can take a proper decision for preparing

final report. Though the jurisdiction under section

482 Cr.P.C. can be exercised for quashing FIR, it

is settled principle that such a power has to be

sparingly exercised. In the case on hand, since

there is scope for investigation, FIR cannot be

quashed. In the result the writ petition is

dismissed, but the Magistrate is hereby directed to

pass fresh orders as regards referring the case for

investigation under section 156(3) Cr.P.C in view

of affidavit being filed by the respondent.

Sd/-

JUDGE

ckl/-