Sri N Krishnappa vs Anti Corruption Bureau
2021 Latest Caselaw 1821 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                                                     R
          DATED THIS THE 24TH DAY OF MARCH, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION NO.468/2021

BETWEEN:

  1. SRI N.KRISHNAPPA
     S/O NARAYANAPPA
     AGED ABOUT 60 YEARS
     R/A THIMMASANDRA
     KASABA HOBLI
     RAJAGHATTA POST
     DODDABALLAPURA POST-562 160.

  2. SRI N.RAMA MURTHY
     S/O NARAYANAPPA
     AGED ABOUT 57 YEARS
     R/A VISHWANATHPURA GRAM PANCHAYAT
     DEVANAHALLI TALUK-562 110
     BENGALURU RURAL DISTRICT.
                                      ... PETITIONERS

            (BY SRI SANDEEP S. PATIL, ADVOCATE)
AND:

  1. ANTI-CORRUPTION BUREAU
     BENGALURU RURAL DISTRICT
     BENGALURU-560 001
     REPRESENTED BY
     SPECIAL PUBLIC PROSECUTOR

  2. SRI S. RANGANAGOWDA
     AGED ABOUT 56 YEARS
     UNDER SECRETARY
     GOVERNMENT OF KARNATAKA
                                 2



     DEPARTMENT OF RURAL DEVELOPMENT
     & PANCHAYAT RAJ,
     M.S.BUILDING
     BENGALURU-560 001.
                                               ... RESPONDENTS

     (BY SRI MANMOHAN P.N., SPL.PUBLIC PROSECUTOR)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE COMPLAINT DATED
21.04.2017 PENDING ON THE FILE OF PRL.DISTRICT AND
SESSIONS JUDGE, BENGALURU RURAL, FIR IN CR.NO.6/2017
DATED 02.06.2017 REGISTERED BY THE RESPONDENT ACB,
BENGALURU RURAL DISTRICT FOR THE OFFENCES PUNISHABLE
UNDER SECTION 13(1)(c) R/W SECTION 13(2) OF PREVENTION
OF CORRUPTION ACT, 1988. AND ETC.,

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 09.03.2021 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:


                           ORDER

This petition is filed under Section 482 of Cr.P.C. praying

this Court to quash the complaint dated 21.04.2017 pending on

the file of IX Additional District and Sessions Judge and Special

Judge, Bengaluru Rural District, Bengaluru; FIR in Crime

No.6/2017 dated 02.06.2017 registered by the respondent-ACB,

Bengaluru Rural District, for the offence punishable under

Sections 13(1)(c) read with Section 13(2) of Prevention of

Corruption Act, 1988 (for short 'the PC Act'); also the order of

taking cognizance dated 19.01.2019 for the above offence; and

charge sheet in Spl.C.No.9/2019 for the above offence and to

consequently, quash all further proceedings thereto.

2. The factual matrix of the case is that respondent

No.2 had lodged the complaint before respondent No.1-Police

making the allegation that based on the application dated

02.01.2016 submitted by M/s Fortius Land Developers L.L.P., the

Vishwanathapura Gram Panchayat, Devanahalli Taluk, in its

meeting on 08.01.2016 and 11.03.2016 had decided to write a

letter to Panchayat Development Officer and to seek permission

and thereafter, to take necessary steps. It is also alleged that

under the Karnataka Gram Swaraj and Panchayat Raj Act, 1993

and Karnataka Panchayat Raj (Acquisition of Moveable and

Immoveable properties by Gram Panchayat) Rules, 1996

permission has to be sought from the Taluk Panchayat. It is also

alleged in the complaint that an endorsement has been given by

the Executive Officer stating that no such proposal was placed

before the Taluk Panchayath, Devanahalli. It is further alleged

that accused No.1 by abusing his office has taken the decision to

allot the CA sites No.1 and 2 formed in Sy.No.64 and Sy.No.12

situated at Bommanavara Village and Badraramanahalli Village

within the limits of Devanahalli Taluk as such the State

Government vide its order dated 21.04.2017 directed the

respondent - Police to register FIR for the above offences.

3. In pursuant to the direction, the police have

registered the case, investigated the matter and filed the charge

sheet and jurisdictional Trial Court taken the cognizance for the

offences and issued the summons to the petitioners and the said

case was registered as Spl.C.No.9/2019. Petitioner No.1 has

been arraigned as accused No.2 and petitioner No.2 has been

arraigned as accused No.3 in the charge sheet.

4. It is the contention of the petitioners herein that in

pursuance of the requisition given by M/s. Fortius Land

Developers L.L.P. for a lease for the purpose of club house, that

on 04.01.2016, Special meeting was called and convened on

08.01.2016. The members, who had participated in the

Panchayat took the decision unanimously to take necessary

approval from Taluk Panchayat before proceeding further in the

matter. It is also contended that notice was issued on

03.03.2016 regarding convening of the General Meeting on

11.03.2016 and in the said meeting, it was decided to take

further steps in relation to allotment of Civic Amenity Sites only

after taking the approval of the Taluk Panchayat. In the light of

the resolution dated 11.03.2016, the Panchayat Development

Officer by the communication dated 25.05.2016 sought approval

of the Taluk Panchayath. The notice of the Special meeting

dated 25.05.2016 was served upon the members of the Village

Panchayat calling them to attend the meeting convened on

28.06.2016. In the said meeting, Panchayat decided to take up

the said subject along with other subjects and it was decided to

act in accordance with approval to be granted by the Taluk

Panchayat.

5. It is further contended that the Panchayat

Development Officer vide communication dated 20.07.2016 once

again forwarded the proceedings of the meeting dated 28.6.2016

seeking approval of the Taluk Panchayat, which through its Chief

Executive Officer-accused No.1 issued a memorandum dated

28.07.2016 permitting the Vishwanathapura Gram Panchayat to

execute the lease deed subject to the condition that deposit

amount shall not be utilized for any other purpose except

utilizing the interest amount accrued for the public works.

Pursuant to the approval of the Taluk Panchayat, lease deed was

executed on 15.09.2016. As there was some error, a

rectification deed was executed on 23.01.2017. It is also

contended that the State Government vide its order dated

05.12.2017 cancelled the lease deed and report was called,

immediately petitioner No.2 got issued a notice of emergency

meeting dated 18.01.2018. In the emergency meeting held on

19.01.2018, the Gram Panchayat decided to give effect to the

Government Order dated 05.12.2018. In view of the decision

taken by the Gram Panchayat on 19.01.2018, the PDO vide

communication dated 06.04.2018 requested the Sub-Registrar,

Devanahalli Taluk to cancel the lease deed, in the light of the

Government order dated 05.12.2017. The action taken by the

Gram Panchayat was intimated to accused No.1-Chief Executive

Officer of Taluk Panchayath by the communication dated

03.02.2018.

6. It is contended that the Trial Court without the

application of his judicious mind to the facts and circumstances

of the case has mechanically taken cognizance and hence, the

very initiation of the proceedings amounts to gross abuse of

process of Court and law. Hence, the petitioners are constrained

to file the present petition.

7. Learned counsel appearing for the petitioners would

vehemently contend that Section 19 of the PC Act, 1988 was

amended vide Act 16 of 2018 which states that no Court shall

take cognizance of the offence punishable under Sections 7, 11,

13 and 15 alleged to have been committed by the public servant

except with the previous sanction in the case of person who is

employed or as the case may be was at the time of

communication of the alleged offence employed with the affairs

of the Union or a State with the sanction of the Central

Government or the State Government as the case may be.

Learned counsel would vehemently contend that the said

amended Section 9 of the PC Act, 1988 was substituted by the

Act 16 of 2018 with effect from 26.07.2018. In view of the

amendment, the Court shall not take cognizance of an offence

which is punishable under Sections 7, 11, 13 and 15 against the

public servant "who is or was" employed at the time of

commission of alleged offence without the previous sanction

from the competent authority in respect of the cases as on the

date of 26.07.2018.

8. In the present case, accused No.3 was serving as

President of Vishwanathapura Gram Panchayat at the time when

the alleged FIR was registered and as on the date of taking

cognizance of the alleged offence, petitioner No.2 i.e., accused

No.3 was a public servant. Therefore, as per the amended

Section 19 of the PC Act, without the previous sanction from the

competent authority, the Trial Court could not have taken

cognizance inasmuch as Section 19 of the PC Act was applicable

with effect from 26.07.2018. Hence, the order of taking the

cognizance dated 19.01.2019 is liable to be quashed.

9. Learned counsel also would vehemently contend that

the learned Trial Judge while taking the cognizance also has

committed an error and only reference has been made while

taking the cognizance. On perusal of the records, it does not

indicate that the Trial Judge has applied his judicious mind.

Learned counsel also would submit that the membership of

petitioner No.2 was cancelled and the same was questioned in

W.P.No.20304/2018, which came to be allowed by setting aside

the order. It is contended that the Gram Panchayat had infact

obtained the prior permission of Taluk Panchayat before

executing the lease deed. Indeed, Taluk Panchayath had issued

a memorandum dated 28.07.2016 according approval for

execution of the lease deed in favour of M/s Fortius Land

Developers L.L.P.. Hence, it cannot be said that there is no

proper prior approval of the Taluk Panchayath. It is also

contended that it is the collective decision of the Gram

Panchayat, which unanimously decided to allot the Civic Amenity

Sites in favour of M/s. Fortius Land Developers L.L.P. on

collecting Rs.30 lakhs as deposit and also to prevent illegal

encroachment of the public properties belonging to the Village

Panchayat. Therefore, no criminal act can be fastened against

the petitioners herein even on cancellation of the lease deed, in

view of the State Government decision and the same being

communicated to the Sub Registrar and lease deed was also got

cancelled. Hence, there cannot be any criminal prosecution

against the petitioners herein.

10. Learned counsel in support of his arguments also

relied upon the judgment of the Apex Court in the case of PEPSI

FOODS LIMITED AND ANOTHER v. SPECIAL JUDICIAL

MAGISTRATE AND OTHERS, reported in (1998) 5 SCC 749,

wherein the Apex Court discussed with regard to invoking of

Section 482 of Cr.P.C. by quashing the proceedings and held

that power of the Court to discharge the accused at the stage of

framing of charge or existence of remedy of appeal and revision

not a bar to invoke the jurisdiction of the High Court under

Article 227 of the Constitution of India or Section 482 of Cr.P.C.

11. Learned counsel also relied upon the judgment in the

case of SUNIL BHARTI MITTAL v. CENTRAL BUREAU OF

INVESTIGATION reported in (2015) 4 SCC 609 and referring

this judgment, learned counsel brought to the notice of this

Court with regard to scope of Section 204 of Cr.P.C. for issuing

the process and the Apex Court held that the Magistrate could

not have issued the process and set aside the order and also

clarified that the present order not to affect future exercise of

power by Magistrate and he would be at liberty to take action

under Section 319 of Cr.P.C. later, if warranted. The Apex Court

held that when Company is the accused, its Directors can be

roped in only if there is sufficient incriminating evidence against

them coupled with criminal intent or the statutory regime

attracts the doctrine of vicarious liability.

12. Learned counsel also relied upon the unreported

judgment of this Court passed in Criminal Petition

Nos.5134/2014 connected with 5148/2014 dated 07.11.2014

and this Court observed, the charge sheet papers discloses that

the Deputy Superintendent of Police has sought for permission to

prosecute the public servants and the sanction is yet to be

obtained from the competent authority and he requested the

Court to permit him to file the charge sheet against the above

said persons after getting permission from the competent

authority. The Court also discussed with regard to whether the

allegations made in the charge sheet against the accused

persons are separable in nature or inter twined with each other.

In para No.4 of the judgment, this Court set aside the order

passed by the Special Court in taking cognizance against the

offences against some of the accused.

13. Learned counsel further relied upon the unreported

judgment of this Court decided on 19.04.2017 passed in

Crl.P.No.3053/2017 and brought to the notice of this Court para

Nos.3 and 5, wherein this Court fully endorsed the opinion

expressed by the Co-ordinate Bench of this Court and held that it

would not be possible for the Court below to take cognizance

piecemeal against some of the accused and to have postponed

the question of taking cognizance against the other accused till

such time, sanction for prosecution was obtained.

14. Per contra, learned counsel appearing for the

respondent would submit that the request was made in the year

2016 and resolution was also passed to obtain the prior

permission from the Taluk Panchayat and subsequently, without

the prior sanction from the Taluk Panchayat, lease deed was

executed. Learned counsel would vehemently contend that the

complaint was given on 21.04.2017 and offence invoked is under

the provisions of the PC Act. The specific allegation against the

petitioners is that without the approval from the Taluk

Panchayat, the file was not placed before the Taluk Panchayat. A

decision was taken by the Government vide its proceedings

dated 14.05.2017, from which it is very clear that the same is in

violation of the statute and prima facie found that an illegal

decision was taken. Hence, accorded the permission against

petitioner No.1 in terms of the complaint dated 21.4.2017, by

granting sanction to prosecute petitioner No.1.

15. Learned counsel would vehemently contend that

sanction was also sought against the second petitioner herein

and an endorsement was issued that there is no need to accord

sanction against petitioner No.2 herein and his office was

ceased. Learned counsel also vehemently contend that the

amendment which was brought in the year 2018 i.e.,

26.07.2018 is perspective in nature and the same cannot be a

retrospective one, wherein its applicability would goes back to

the commission of an offence. Hence, the very contention of the

learned counsel for the petitioners cannot be accepted.

16. Learned counsel in support of his argument, relied

upon the judgment of the Kerala High Court in the case of

K.R.RAMESH v. CENTRAL BUREAU OF INVESTIGATION

AND ANOTHER reported in 2020 SCC Online Ker. 2529 and

brought to the notice of this Court para Nos.1, 7, 10, 38, 42 and

43, wherein it has been elaborately discussed with regard to

scope of offence under Section 13(1)(d) of the PC Act and also

the amendment which was brought to the PC Act. The Kerala

High Court in this judgment, particularly in para No.44, held that

the Prevention of Corruption (Amendment) Act 2018 has to be

held to be prospective and has no application to the cases

registered prior to the amendment and pending under various

stages of investigation and to cases, in which investigation has

been completed and are pending trial. Learned counsel referring

to this judgment would vehemently contend that the contention

of the petitioners cannot be accepted.

17. Learned counsel also relied upon the judgment of

this Court dated 20.12.2019 passed in W.P.No.29176/2019 and

brought to the notice of this Court para No.19 of the judgment,

wherein it is held that the Statute may operate retrospectively

by express enactment, by necessary implication from the

language implied or where the statute is explanatory or

declaratory or where statute is passed for the purpose of

protecting the public against some evil or abuse and also taken

note of there is no express amendment nor it is discernable from

the language that amendment is retrospective in nature.

18. Learned counsel also relied upon the judgment of the

Apex Court in the case of L.NARAYANA SWAMY v. STATE OF

KARNATAKA AND OTHERS reported in (2016) 9 SCC 598.

Learned counsel referring to this judgment brought to the notice

of this Court para No.21, wherein the Apex Court discussed with

regard to the principles laid down in the case of Abhay Singh

Chautala and Prakash Singh Badal in respect of obtaining the

sanction. It is also made clear that where the public servant had

abused the office which he held in the check-up period, but had

ceased to hold "that office" or was holding a different office, then

sanction would not be necessary. Likewise, where the alleged

misconduct is in some different capacity than the one which is

held at the time of taking cognizance, there will be no necessity

to take the sanction. It is further observed that a detailed

discussion contained in these judgments would indicate that the

principle laid down therein would encompass and cover the cases

of all public servants, including the government employees who

may otherwise be having constitutional protection under the

provisions of Articles 309 and 311 of the Constitution. Having

relied upon these judgments, learned counsel would vehemently

contend that the contention of the learned counsel for the

petitioners cannot be accepted and there is no need to take

sanction against the petitioner as he has ceased his office.

19. Having heard the respective counsel and also the

principles laid down in the judgments referred supra by both the

learned counsel, the moot point that would arise for the

consideration of this Court is whether it is a fit case to exercise

the powers under Section 482 of Cr.P.C. to quash the

proceedings on the ground that no sanction is obtained

consequent upon the amendment to the PC Act in the year 2018

and so also whether the learned Judge has applied his judicious

mind in taking the cognizance. It is also settled law that while

exercising the powers under Section 482 of Cr.P.C., the Court

has to exercise its power sparingly where there is a case of

abuse of process, which leads to miscarriage of justice. The Apex

Court also in Pepsi Foods' case held that power of the Court to

discharge the accused at the stage of framing of charge or

existence of remedy of appeal and revision not a bar to invoke

the jurisdiction of High Court under Article 227 of Constitution of

India or Section 482 of Cr.P.C.

20. The Apex Court in Sunil Bharti Mittal's case

discussed with regard to the scope of the Court while exercising

the powers under Section 204 of Cr.P.C. The other judgments of

this Court are with regard to quashing of the proceedings on the

ground of absence of any sanction.

21. Learned counsel appearing for the respondent No.1

also relied upon the decisions of the Kerala High Court, Apex

Court and also this Court with regard to when the sanction is

required for prosecution.

22. Having given anxious consideration to the principles

laid down in the judgments referred supra, this Court has to look

into the factual aspects of the case on hand. In the case on

hand, it has to be noted that the specific allegations against

these two petitioners along with accused No.1 are that they

executed the lease deed in respect of CA site Nos.1 and 2 in

favour of M/s. Fortius Land Developers L.L.P. as against the

statute and thereby, committed the offences under the PC Act.

On perusal of the records, document No.2 discloses with regard

to giving of sanction to proceed against accused Nos.1 and 2

vide order dated 21.04.2017. The main contention of the

petitioners before this Court is also that before executing the

lease deed, they had obtained the prior permission from the

Taluk Panchayat. It is not in dispute that when the sanction was

not obtained, the Government in the year 2017 set aside the

lease granted in favour of M/s. Fortius Land Developers L.L.P. It

is also the contention of the petitioners that in view of the

Government order, the lease has been cancelled, but the fact

remains before the Court is that whether they had executed the

lease deed without obtaining the approval from the Taluk

Panchayat. In order to substantiate the fact that prior approval

was obtained from the Taluk Pachayat, no document is placed

before the Court. But only the documents with regard to the

resolution being passed by the Panchayat has been placed and

also the documents relating to calling of the Special Meeting and

proceedings of the meeting are also placed before the Court.

23. The main contention of the learned counsel for the

petitioners is that without sanction, there cannot be any

prosecution against the petitioner No.2 herein, who has been

arraigned as accused No.3. It is pertinent to note that the case

was registered prior to the amendment and it is also not in

dispute that the amendment was brought on 26.07.2018.

Learned counsel for the petitioners also brought to the notice of

this Court that the charge sheet was filed on 25.10.2018. No

doubt, in view of the amendment, it is clear that for prosecuting

the public servant, who is or was working or holding the public

office, the sanction is necessary. But the question before the

Court is that in view of the amended Section, the sanction is

necessary in respect of petitioner No.2, who has been arraigned

as accused No.3.

24. Learned counsel appearing for the respondent -

Lokayuktha also not disputed the fact that the sanction is not

obtained. Learned counsel for the petitioners also not disputed

the fact that the membership of accused No.3 was seized. The

judgment relied upon by the respondent's counsel subsequent to

the amendment in the judgment of the Kerala High Court

reported in 2020 SCC online Ker. 2529 in detailed discussed with

regard to the amendment is concerned and ultimately, comes to

the conclusion in para No.44 that the Prevention of Corruption

(Amendment) Act, 2018 has to be held to be prospective and

has no application to cases registered prior to the amendment

and pending under various stages of investigation and to cases

in which investigation has been completed and are pending trial.

25. Having perused the principles laid down in the said

judgment, it is clear that the amendment brought in the year

2018 is prospective and has no application to the cases

registered prior to the amendment. In the case of hand, the

case was registered prior to the amendment and also the fact

that an endorsement was issued stating that there is no need to

issue the sanction. Hence, it is clear that when the post of

petitioner No.2 was ceased, on account of completion of his

term, the very amendment brought in the year 2018 is not

applicable to the case on hand. This Court also in the

W.P.No.29176/2019 in para No.19 discussed with regard to the

implication of the amendment and the Statute operates

retrospectively only by express enactment, by the necessary

implication from the language implied or where the statute is

explanatory or declaratory or where the statue is passed for the

purpose of protecting the public against some evil or abuse.

26. In the case on hand also, the allegation is made

against petitioner No.2 herein that when he was working as a

President along with other accused persons, indulged in

executing the lease deed. When such being the facts and

circumstances of the case and also the Apex Court in

L.Narayana Swamy's case in para No.21 categorically held that

where the public servant had abused the office, which he held in

the check-up period, but had ceased to hold "that office" or was

holding a different office, then sanction would not be necessary.

Likewise, where the alleged misconduct is in some different

capacity than the one which is held at the time of taking

cognizance, there will be no necessity to take the sanction.

Hence, the very contention of the learned counsel for the

petitioners that without the sanction, there cannot be any

prosecution against petitioner No.2, cannot be accepted. The

other contention of the learned counsel for the petitioners before

this Court is that learned Judge has not applied his judicious

mind while issuing the process against the petitioners.

27. Having perused the order, the learned Judge,

considering the material available on record i.e., first

information, statement of witnesses recorded by the

investigating officer and also the document seized and collected

at the time of investigation and so also on perusal of the entire

prosecution papers, the learned Magistrate found that there are

sufficient grounds and materials to take cognizance for the

offence, particularly, for the offence under Section 13(1)(c) and

13(2) of PC Act and issued the process. When such being the

facts and circumstances of the case and when the learned Judge

has applied his judicious mind while issuing the process, the very

contention of the learned counsel for the petitioners that the

learned Trial Judge has not applied his judicious mind also

cannot be accepted. Hence, it is not a fit case to exercise the

powers under Section 482 of Cr.P.C.

28. In view of the discussion made above, I pass the

following:-

ORDER

The petition is hereby dismissed.

In view of allowing the main petition, I.A.No.1/2021 for

stay does not survive for consideration and the same stands

disposed of.

Sd/-

JUDGE PYR