Sri.H.L. Shivananda S/O H.R. ... vs The State Of Karnataka
2021 Latest Caselaw 2400 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 25TH DAY OF JUNE 2021

                        BEFORE

            THE HON'BLE MRS.JUSTICE M.G.UMA

            CRIMINAL PETITION NO.101875/2018

BETWEEN :

SRI H.L.SHIVANANDA
S/O.H.R.LAKSHMAN NAIK,
AGED ABOUT 62 YEARS,
JOINT DIRECTOR OF INDUSTRIES
AND COMMERCE, KHANIJA BHAVAN,
RACE COURSE ROAD, BENGALURU,
R/A.NO.352, 15TH CROSS,
4TH SECTOR, H.S.R. LAYOUT,
BENGALURU-560 102.
                                          ...PETITIONER

(BY SRI MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)

AND :

THE STATE OF KARNATAKA
BY DRUGS INSPECTOR,
BELGAUM DISTRICT,
DRUGS CONTROL OFFICE,
BENGALURU,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
                                        ......RESPONDENT
(BY SRI VINAYAK S.KULKARNI, AGA)
                              -2-




      THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO SET ASIDE THE JUDGMENT DATED 26.02.2018 IN
CRIMINAL REVISION PETITION NO.358/2013 PASSED BY THE
HON'BLE I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BELAGAVI AND ALSO THE ORDER DATED 22.06.2013 IN
C.C.NO.1180/2010 PASSED BY THE HON'BLE COURT OF III
J.M.F.C. BELAGAVI ON THE APPLICATION FOR DISCHARGE
FILED BY THE PETITIONER UNDER SECTION 245 OF CR.P.C.
AND TO ALLOW THE APPLICATION DATED 13.09.2012 FILED BY
THE PETITIONER FOR DISCHARGE UNDER SECTION 245 OF
CR.P.C. AS PRAYED FOR (ANNEXURE-M), AND EXONERATE THE
PETITIONER OF THE ALLEGED OFFENCES LEVELED AGAINST
HIM, IN THE INTEREST OF JUSTICE.

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

                          ORDER

Petitioner/accused No.10 is before this Court

aggrieved by the impugned order dated 26.02.2018 passed

in Crl.R.P.No.358/2013 on the file of the learned I Addl.

District and Sessions Judge, Belagavi (for short, 'revisional

Court') confirming the order dated 22.06.2013 passed in

Criminal Case No.1180/2010 on the file of learned JMFC-III,

Belagavi (for short, 'trial Court') rejecting the application

filed by the present petitioner under Section 245 of Cr.P.C.

praying to stop the proceedings and discharge him for the

offence under Section 18(c) read with Section 27(b)(ii) of

the Drugs and Cosmetics Act, 1940 (for short the Act,

1940).

2. Brief facts of the case are that the Government of

Karnataka had constituted a Government agency and

issued Direction that the Government Hospitals should

purchase their medical requirements through these

agencies, from the manufacturers and dealers.

3. The present petitioner is arrayed as accused No.10

said to be the Managing Director of Bengaluru Rural District

Industrial Supplies and Marketing Co-operative Society

Limited (for short 'the DSMS Society') which was acting as

an agency to place order and to procure necessary drugs to

be supplied to various Government Hospitals. It is stated

that accused No.10 without there being any licence placed

the orders with accused No.1 for supply of certain drugs,

which was not having valid license to supply the drugs and

thereby committed the offence. It is stated that after

investigation charge sheet was came to be filed against

accused Nos.1 to 10 making specific allegations against

each of the accused.

4. The present petitioner had approached this Court

by filing Criminal Petition No.3701/2006 seeking quashing

of the criminal proceedings under Section 482 of Cr.P.C.

The said petition was came to be dismissed vide order

dated 23.04.2009. It is observed by this Court that since

the learned counsel for the petitioner contended that an

application seeking discharge is pending before the trial

Court as there is no sanction under Section 197 of Cr.P.C.,

the trial Court can dispose off the said application in

accordance with law. Accordingly, the petitioner prosecuted,

the application seeking his discharge for want of sanction.

5. The trial Court under the impugned order dismissed

the said application holding that the petitioner was on

deputation and was working in the DSMS Society. Therefore

no sanction is required to be obtained to prosecute him. It

is specifically observed that accused No.10 will not fall

within the ambit of a 'public servant' and further even if he

were to contend that he can take immunity under Section

197 of Cr.P.C. as there is no direct nexus between the

alleged act of accused No.10 in discharge of his official

duty. This order passed by the Trial Court was challenged

by the petitioner before the revisional Court. The revisional

Court vide order dated 26.02.2018 confirming the order of

the trial Court affirming that the petitioner was working on

deputation and therefore seeking sanction under Section

197 of Cr.P.C. does not arise. It is specifically held that he

is not a public servant and therefore, no sanction is

required to prosecute him.

6. Being aggrieved by the impugned order passed by

the trial Court and also revisional Court, petitioner is before

this Court in this petition.

7. Heard Sri Mallikarjunswamy B. Hiremath, learned

counsel for petitioner and Sri Vinayak S.Kulkarni, learned

AGA for respondent.

8. Learned counsel for the petitioner has raised only

one ground before me stating that the petitioner who is

Deputy Director in the Department of Industries and

Commerce was Ex-Officio Managing Director of the DSMS

Society. Under such circumstances, it cannot be said that

he is not a public servant. The trial Court and the revisional

Court have committed error by proceeding on the ground

that the petitioner was on deputation as Managing Director

to the DSMS Society. As per the bye-law of the Society,

the Deputy Director of the department of Industries and

Commerce will be the Ex-Officio Managing Director of the

Society. Under such circumstances, the stand taken by the

trial Court as well as by the revisional Court is per se

erroneous and therefore, the same is liable to be set aside.

9. Learned counsel further submitted that when the

petitioner is held to be a public servant, the sanction under

Section 197 of Cr.P.C. is a must. Since there is no sanction

to prosecute, taking cognizance by the trial Court is void

and therefore the impugned order passed by the trial Court

as well as by the revisional Court is to be set aside and the

accused is to be discharged for the offence charged against

him.

10. Per contra, learned AGA submitted that the

petitioner had taken the stand before the trial Court as well

as before the revisional Court that he was on deputation to

the DSMS Society as Managing Director. Under such

circumstances, both the Courts have proceeded to hold that

he was not a public servant while working on deputation.

Now the petitioner has taken a different stand stating that

he was Ex-Officio Managing Director in the DSMS Society in

his capacity as Deputy Director of Department of Industries

and Commerce which is contrary to the stand was taken

earlier. Therefore, the contention now taken by the

petitioner cannot be allowed to stand and hence, the

petition is to be dismissed.

11. Perused the materials on record. In the light of the

rival submissions, the point that would arise for my

consideration is,

"Whether the criminal proceedings initiated against the petitioner/accused No.10 are liable to be quashed?"

12. My answer to above the point is in 'Affirmative' for

the following:

REASONS

13. Only contention taken by the learned counsel for

petitioner is that the petitioner is an Ex-Officio Managing

Director of DSMS Society, as he was working as Deputy

Director in the Department of Industries and Commerce.

Learned counsel drawn my attention to the bye-law of the

DSMS Society to contend that the petitioner who was

working as Deputy Director in the Department of Industries

and Commerce was the Ex-Officio Managing Director in the

DSMS Society.

14. The learned counsel for the petitioner produced

additional documents in support of his contention that he

was working as Deputy Director in the Department of

Industry and Commerce and subsequently, he was

transferred as Deputy Director (planning) in District

Industrial Centre with effect from 31.05.1995. Learned

counsel produced the Office Memorandum dated

06.01.1998 issued by Bengaluru Rural Zilla Panchayat,

which shows that the present petitioner is working as

Deputy Director (planning) and as Ex-Officio Managing

Director of DSMS Society. These documents prima-facie go

to show that he is working as Deputy Director in his parent

department and only Ex-officio Managing Director in the

DSMS Society. Under such circumstances, sanction under

Section 197 of Cr.P.C. is very much required to be obtained

before prosecuting the present petitioner. Admittedly, no

such sanction is obtained to prosecute the petitioner, who is

arrayed as accused No.10. Therefore, I am of the opinion

that the criminal proceedings initiated against the

petitioner/accused No.10 is liable to be quashed.

Accordingly, I answer the above point in the affirmative and

proceed to pass the following :

ORDER

The petition filed by the petitioner/accused No.10 is

allowed.

The impugned order passed in Criminal Revision

Petition No.358/2013 passed by the learned I Additional

District and Sessions Judge, Belagavi dated 26.02.2018 and

also the order dated 22.06.2013 passed in Criminal Case

No.1180/2010 by the learned JMFC-III, Belagavi on the

application for discharge filed by the petitioner/accused

No.10 under Section 245 of Cr.P.C. are set aside.

Accordingly, application dated 13.09.2012 filed by the

petitioner/accused No.10 for discharge under Section 245 of

Cr.P.C. is allowed and the petitioner is discharged for the

offences punishable under Section 18(c) read with Section

27(b)(ii) of the Act, 1940.

Sd/-

JUDGE

Ckk/Naa/CKK