Dr M Basappa Reddy vs State Of Karnataka
2021 Latest Caselaw 3501 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25TH DAY OF OCTOBER, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE K.NATARAJAN

          WRIT PETITION No.12915 of 2021 (GM-RES)


BETWEEN

DR. M. BASAPPA REDDY,
AGED ABOUT 76 YEARS,
S/O. LATE MUNIYAPPA,
#15, GURAPPA AVENUE,
PRIMROSE ROAD,
BENGALURU - 560 025.

                                             ...PETITIONER

(BY SRI HASHMATH PASHA, SENIOR ADVOCATE FOR
SRI NASIR ALI, ADVOCATE)


AND

STATE OF KARNATAKA
BY SIT/LOKAYUKTA,
BENGALURU - 560 001.

                                            ...RESPONDENT

(BY SRI B.S. PRASAD, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE,
PRAYING TO QUASH THE ORDER DATED 12.02.2021 VIDE
ANNEXURE-A PASSED BY THE 23RD ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU, IN TAKING COGNIZANCE
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OF THE OFFENCES AGAINST THE PETITIONER, QUASHING OF
THE CHARGE SHEET DATED 01.01.2021 FILED BY THE
RESPONDENT VIDE ANNEXURE-B AND QUASHING OF THE FIR
IN CRIME No.3/2017 DATED 09.10.2017 VIDE ANNEXURE-C
AND ALSO ENTIRE CRIMINAL PROCEEDINGS INITIATED
AGAINST THE PETITIONER IN SPL.C.C.No.130/2021 ARISING
FROM CRIME No.3/2017 FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 409 AND 420 READ WITH SECTION 120(B)
OF THE INDIAN PENAL CODE AND SECTION 13(1)(d) READ
WITH SECTION 120(B) OF THE INDIAN PENAL CODE AND
SECTION 13(1)(d) READ WITH SECTION 13(2) OF THE
PREVENTION OF CORRUPTION ACT, 1988 AND UNDER
SECTIONS 21 AND 23 READ WITH SECTIONS 4(1) AND 4(1-A)
OF THE M.M.D.R. ACT.

     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 24.09.2021 AND COMING ON FOR
PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE
FOLLOWING:

                           ORDER

This petition is filed by the petitioner-accused No.4

under Articles 226 and 227 of the Constitution of India

read with Section 482 of Cr.P.C. for quashing the criminal

proceedings in Spl.C.C.No.130/2021 arising out of Crime

No.3/2017 for the offences punishable under Sections 409

and 420 read with Section 120(B) of the Indian Penal

Code, 1860 (for short 'IPC') and Section 13(1)(d) read

with Section 13(2) of the Prevention of Corruption Act,

1988 (for short 'P.C. Act').

2. Heard the arguments of Sri Hashmath Pasha,

learned Senior counsel for the petitioner and

Sri B.S.Prasad, learned counsel for the respondent-

Lokayukta.

3. The case of the prosecution is that the FIR has

been registered by the Police Inspector, Special

Investigation Team, Karnataka Lokayukta, Bengaluru

against the accused persons for the offences punishable

under Section Sections 379, 409, 420, 468 and 471 read

with Section 120(B) of IPC, Section 13(1)(d) read with

Section 13(2) of P.C. Act and Sections 21 and 23 read

with Section 4(1) and 4(1A) of the Mines and Mineral

(Development and Regulation) Act, 1957 (for short 'MMDR

Act'. As per the source of information, the Mining lease (ML

236) was granted in favour of M/s. Mysore Stoneware

Pipes and Potteries Ltd. (hereinafter referred to as

'MSPPL') for extraction of Manganese and Kaolin in

Sondenahalli and Hatyal Villages of Chikkanayakanahalli

and Tiptur Talukas of Tumakuru District over an area of

640 acres for a period of 20 years with effect from

06.07.1954. Later with the consent of MSPPL, the lease for

mining of manganese ore was transferred to M/s.

Deepchand Kishanlal by the State Government vide

Notification No.CI 63 MNL 62 dated 20.06.1962,

permission was given to M/s. Deepchand Kishanlal to

extract the iron ore after obtaining approval of the

Government of India. However the lease period was meant

for co-terminus with the original lease period of MSPPL and

was valid till 05.07.1974. The original lease holder i.e.,

MSPPL continued to have lease over the entire extent of

640 acres for extraction of kaolin for a period of 20 years

from 06.07.1954.

4. The further case of the prosecution is that the

lease for extraction of kaolin was extended for a period of

10 years from 06.07.1974 to 05.07.1984 and the second

renewal was also extended for a period of 10 years from

06.07.1984 to 05.07.1994. Later the lessee filed the third

renewal application on 03.05.1997. In response to this, the

Director, Mines and Geology issued a Notification dated

01.04.2005 for third renewal for extraction of fire clay

(kaolin) over an area of 130 acres for a period of 20 years

which is granted from 06.07.1994. Subsequently, a

corrigendum was also issued by the Director, Mines and

Geology on 16.06.2005 increasing the area for an extent

of 303.10 acres. This lease deed was executed on

02.06.2006.

5. The further case of the prosecution is that on

the request of MSPPL, the Director-this petitioner granted

illegal temporary permission for transportation of 4,300

metric tons of iron ore fines on 07.04.1992. This was done

without authority and any legal basis. The Deputy Director

of Mines (Squad), Bengaluru, inspected the leased area on

14.12.2010, he noticed that the lessee had illegally

extracted large quantity of iron ore besides the fire clay

and in his report, he has stated that more than 30,000

metric tons of iron ore was illegally extracted and more

than 3,00,000 metric tons of iron ore was illegally

extracted and dispatched by accused No.1-Company.

Thereby, they have cheated the Government and caused

huge loss. The Lokayuktha Police took up the investigation

and it was found that this petitioner-accused No.4 was the

then Director of the Mines and Geology Department who

had illegally granted permission to accused No.1-Company

by issuing a letter on 29.01.2001 despatched on

31.01.2001 permitting the Senior Geologist of Tumkur

District to issue permit to accused No.1-Company for

removing the iron ore dust. Hence, the Lokayukta Police

registered a case and after investigation, they have filed

charge-sheet against the accused persons.

6. The petitioner-accused No.4 has filed this

petition for taking cognizance by the Special Court on

various grounds. The learned senior counsel Sri Hashmath

Pasha appearing for the petitioner has contended that

registering of the FIR and filing of the charge-sheet against

this petitioner is abuse of process of law and the action of

the Police is illegal and without the authority of law. There

was no iota allegation against this petitioner in the FIR that

the petitioner had either conspired with the other accused

or he had directed the Senior Geologist to issue permit for

Iron Ore Fines illegally in favour of accused No.1. The

letter dated 29.01.2001 was issued to remove the iron ore

dust but not iron ore fines. The respondent has failed to

consider the said letter which was issued to the Senior

Geologist after payment of necessary Royalty to issue

permit. The iron ore dust is not considered as iron ore as

per the schedule to the Mines and Minerals (Development

and Regulation) Act, 1957. The Police have failed to

consider the act of the petitioner in writing the letter to the

Senior Geologist was in good faith and further contended

the that the iron ore dust mined by M/s. Deepchand

Kishanlal was legal and it can be transported any time

even after the expiry of the lease period on payment of

royalty and the same was not considered by the

respondent during the Departmental Proceedings. The trial

Court has also failed to consider that the act of the

petitioner was done purely in discharge of his Official duty,

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

required apart from Section 19 of the P.C. Act for taking

cognizance. Therefore, taking cognizance itself is not

correct. Hence, prayed for quashing the proceedings.

7. Learned senior counsel for the petitioner has

further contended that the trial Court is wrong in holding

that once the application for sanction is pending for more

than three months which amounts to deemed sanction

granted. It is not correct that the said law is applicable

only to new cases after the amendment of the P.C. Act.

The said law does not exist at the time of filing of the

charge-sheet in the present case before the order of the

trial court passed under Section 227 of Cr.P.C. is not

sustainable and contended that without obtaining the

sanction under Section 197 of Cr.P.C., filing the charge-

sheet for the offences punishable under IPC is not

sustainable. He further contended that the trial Court has

not taken any cognizance in respect of offences punishable

under the MMDR Act as there is no violation of any of the

provisions of Sections 21 and 23 read with Section 4(1)

and 4(1A) of the MMDR Act. Therefore, prayed for

quashing the same.

8. Learned senior counsel for the petitioner has

relied upon the following judgments of the Hon'ble

Supreme Court which are as follows:

1) (1999) 5 SCC 690 State of Kerala vs. Padmanabhan Nair.

2) (2016) 2 SCC 143 N.K Ganguly vs. CBI, New Delhi.

3) (2020) 7 SCC 695 D Devaraja vs. Owais Sabeer Hussain.

4) (1996) 1 SCC 478 R Balakrishna Pillai vs. State of Kerala and Another.

9. Per contra, Sri B.S. Prasad, learned counsel

appearing for the respondent has contended that the

petitioner being the Director of the Mines and Geology

Department has given permission without looking to the

matter as there is no valid permit for the petitioner for

extracting the iron ore. The act of the accused is not in

accordance with law which was passed in collusion with

accused Nos.1 and 2, therefore, it cannot be considered

that the offence committed while discharging the official

duty, for obtaining any sanction under Section 197 of

Cr.P.C. for filing the charge sheet for the offences

punishable under the IPC. That apart, the accused has

already retired from the service in the year 2005 itself and

as on the date of filing charge-sheet, he was neither the

Director nor he was in the service. Therefore, a sanction

under Section 19 of P.C. Act is not required.

10. Learned counsel for the respondent has further

contended that the letter issued by the petitioner on

29.01.2001 in the absence of any mining lease given to

the petitioner. He has permitted accused No.1 to remove

the iron ore dust. In order to remove the iron ore either

dust or fines, the accused shall obtain the lease as

provided under Section 27 of the MMDR Act. Without

verifying the records, the petitioner directed the Senior

Geologist of Tumkur District to issue permission to remove

the iron ore dust which is illegal act and further contended

that the license was expired after 1994 and a renewal

application was also filed and the renewal of license

granted only in the year 2006. Such being the case,

removing the iron ore dust or giving permission to remove

the iron ore dust itself is illegal. Therefore, it cannot be

considered that the accused has committed any offence

while discharging his official duty, but it is done by him for

his pecuniary benefit. Therefore, the question of taking

sanction under Section 197 of Cr.P.C. for filing charge-

sheet under IPC offences does not arise. Therefore, he

has contended that the petitioner is required to face the

trial and hence, prayed for dismissing the petition. In

support of his arguments, he has relied upon the following

judgments which are as under:

      1)    2004     (2)    SCC        349    State     of
            Himachal        Pradesh          vs.      M.P.
            Gupta.





     2)    (2015) 13 SCC 87 Inspector of
           Police & Others vs. Battenapatla
           Venkata Ratnam & Another.

     3)    (1999) 5 SCC 690 State of Kerala
           vs. Padmanabhan Nair.


     4)    Unreported judgment of the High Court of

Karnataka passed in Crl.P.No.1958/2017 and connected matters in the case of K.M.Vishwanath vs. State of Karnataka and Crl.R.P.No.1313/2019 in the case of Syed Sameer Pasha vs.State of Karnataka through Karnataka Lokayukta.

11. Upon hearing the arguments of learned senior

counsel for the petitioner and the learned Special counsel

for the respondent and on perusal of the judgments relied

by both the counsel and charge-sheet materials, before

going to the merits of the case, it is worth to mention the

principle laid down by the Hon'ble Supreme Court in

respect of obtaining the sanction for the purpose of

prosecuting the public servant while in service or retired

from the service for initiating proceedings for the offences

punishable under the IPC as well as P.C. Act.

12. The Hon'ble Supreme Court in the case of N.K.

Ganguly vs. CBI stated supra as held at paragraph Nos.

23, 24, 25 and 32 which are as under:

"23. Mr. Gopal Subramanium, the learned Senior Counsel on behalf of some of the appellants has further rightly placed reliance upon the judgment of a three-Judge Bench of this Court in Amrik Singh v. State of Pepsu to buttress the contention that the issue of requirement of prior sanction under Section 197 CrPC can be raised at any stage of the proceedings, and not just at the stage of framing of charges. The decision in Hori Ram Singh was also quoted with approval, especially the categorisation of situations in three scenarios, as under:

(Amrik Singh case, AIR p.311, para 6)

a) Decision which held that sanction was necessary when the act complained of

attached to the official character of the person doing it;

b) Judgments which held that sanction was necessary in all cases in which the official character of the person gave him an opportunity for the commission of the crime; and

c) Those which held it was necessary when the offence was committed while the accused was actually engaged in the performance of official duties.

It was further held in the Amrik Singh case that: (AIR p.312, para 8)

"8.The result of the authorities may thus be summed up: it is not every offence committed by a public servant that requires sanction for prosecution under Section 197 CrPC; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of his directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would

be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of grant of sanction, which must precede the institution of the prosecution." (emphasis supplied)

24. The position of law, as laid down in Hori Ram Singh was also approved by the Privy Council in H.H.B. Gill v. R., wherein it was observed as under: (SCC OnLine PC)

"... A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty."

25. Reliance was further rightly placed by the learned Senior Counsel on the decision of a Constitution Bench of this Court in Matajog Dobey v. H.C. Bhari, which pertained to an income tax investigation. It was alleged by the appellant therein that while conducting a search, the officials of the Income Tax Department had forcibly broke open the

entrance door of the house and interfered with the boxes and drawers of the tables. It was also alleged by the appellant therein that the officials tied him and beat him up. Upon an enquiry of the said complaint, the Magistrate came to the conclusion that a prima facie case had been made out and issued process. During the course of trial, the issue pertaining to want of sanction was urged. This Court held as under: (AIR p.48, para 15)

"15. ... Article 14 does not render Section 197 of the Criminal Procedure Code 'ultra vires' as the discrimination is based upon a rational classification.

Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard." (emphasis supplied)

On the other hand, ordinary citizens not so engaged do not require this safeguard. It was further observed that: (AIR p.48, para 15)

"15. ......Whether sanction is to be accorded or not is a matter for the government to consider.

The absolute power to accord or withhold sanction on the Government is irrelevant and foreign to the duty cast on that court, which is the ascertainment of the true nature of the act."

The Court finally summed up the result of the discussion as follows: (AIR p.49, para 19)

"19. ...There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty." (emphasis supplied)

32. The learned Additional Solicitor General, on the other hand, appearing on behalf of CBI placed strong reliance on the decision of this Court in Prakash Singh Badal v. State of Punjab to buttress his contention that no sanction was required to be taken in the instant case as the appellants have entered into a criminal conspiracy, therefore, it cannot be said to be a part of their official duty as the public servants. The act of the appellants of

transferring the plot in question in favour of the aforesaid Society, allotted in favour of ICMR for the purpose of construction of the flats and allotting the same in favour of the employees of ICPO-ICMR Society without obtaining the order from either CEO or Chairman of NOIDA with a motive to make wrongful gain for themselves after entering into a conspiracy cannot be said to be an act that has been carried out in discharge of their official duty. The learned Additional Solicitor General placed reliance on the following paragraphs of the Prakash Singh Badal case: (SCC pp.37-38, paras 49-50)

"49. Great emphasis has been laid on certain decisions of this Court to show that even in relation to offences punishable under Sections 467 and 468 sanction is necessary. The foundation of the position has reference to some offences in Rakesh Kumar Mishra case. That decision has no relevance because ultimately this Court has held that the absence of search warrant was intricately (sic linked) with the making of search and the allegations about alleged offences had their matrix on the absence of search warrant and other

circumstances had a determinative role in the issue. A decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context.

50. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence."

13. In another judgment in the case of Devaraja

vs. Owais Sabeer Hussain stated supra, the Hon'ble

Supreme Court in the latest decision it has held at

paragraph Nos.67, 68, 74, 75, 76 which are as under:

"67. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure

Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be.

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

74. It is well settled that an application under Section 482 of the Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court.

75. There is also no reason to suppose that sanction will be withheld in case of prosecution, where there is substance in a complaint and in any case if, in such a case, sanction is refused, the aggrieved complainant can take recourse to law. At the cost of repetition it is reiterated that the records of the instant case clearly reveal that the complainant alleged of police excesses while the respondent was in custody, in the course of investigation in connection with Crime No.12/2012. Patently

the complaint pertains to an act under colour of duty.

76. Significantly, the High Court has by its judgment and order observed: (H.Siddappa case, SCC OnLine Kar para 5)

5. ... it is well-recognized principle of law that sanction is a legal requirement which empowers the Court to take cognizance so far as the public servant is concerned. If at all the sanction is absolute requirement, if takes cognizance it becomes illegal, therefore, an order to overcome any illegality the duty of the Magistrate is that even at any subsequent stages if the sanction is raised it is the duty of the Magistrate to consider".

14. In another judgment in the case of

R. Balakrishna Pillai, the Hon'ble Supreme Court has

held at paragraph No.6 which is as under:

"6. The next question is whether the offence alleged against the appellant can be said to have been committed by him while acting or purporting to act in the discharge of his official duty. It was contended by the

learned counsel for the State that the charge of conspiracy would not attract Section 197 of the Code for the simple reason that it is no part of the duty of a Minister while discharging his official duties to enter into a criminal conspiracy. In support of his contention, he placed strong reliance on the decision of this Court in Harihar Prasad vs. The State of Bihar.

He drew our attention to the observations in paragraph 74 of the judgment where the Court, while considering the question whether the acts complained of were directly concerned with the official duties of the public servants concerned, observed that it was no duty of a public servant to enter into a criminal conspiracy and hence want of sanction under Section 197 of the Code was no bar to the prosecution. The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the public servant concerned would depend on the facts of each case. There can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant in or out of office the bar of Section 197(1) of the Code would have no application.

Such a view would render Section 197(1) of the Code specious. Therefore, the question would have to be examined in the facts of each case. The observations were made by the Court in the special facts of that case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted. It must also be remembered that the said decision was rendered keeping in view Section 197(1), as it then stood, but we do not base our decision on that distinction. Our attention was next invited to a three-Judge decision in B. Saha & Ors. vs. M.S. Kochar. The relevant observations relied upon are to be found in paragraph 17 of the judgment. It is pointed out that the words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed Section 197(1) of the code, are capable of both a narrow and a wide interpretation but their Lordships pointed out that if they were construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of

an official duty to commit an offence, and never can be". At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed. The right approach, it was pointed out, was to see that the meaning of this expression lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important, and if it falls within the scope of the afore-quoted words, the protection of Section 197 will have to be extended to the concerned public servant."

15. In another judgment in the case of State of

Kerala vs. V. Padmanabhan Nair, the Hon'ble Supreme

Court has held at paragraph Nos.6, 7 and 8 which are as

under:

"6. The correct legal position, therefore, is that an accused facing prosecution for offences under the PC Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. So the High Court was at any rate wrong in quashing the prosecution proceedings insofar as they related to offences under the PC Act.

7. That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B of IPC sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated that correct legal position in Shreekantiah Ramayya Munnipalli v. State of Bombay and also a Amrik Singh v. State of Pepsu that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official

duties. Following the above legal position it was held in Harihar Prasad as follows: (SCC p.115, para 66)

"As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409, Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."

8. Learned Single Judge of the High Court declined to follow the aforesaid legal position in the present case on the sole premise that the offence under Section 406 of IPC has also been fastened against the accused besides Section 409 of IPC. We are unable to discern the rationale in the distinguishment.

Sections 406 and 409 of IPC are cognate

offences in which the common component is criminal breach of trust. When the offender in the offence under Section 406 is a public servant (or holding any one of the positions listed in the section) the offence would escalate to Section 409 of the Penal Code. When this Court held that in regard to the offence under Section 409 of IPC read with Section 120-B it is no part of the duty of the public servant to enter into a criminal conspiracy for committing breach of trust, we find no sense in stating that if the offence is under Section 406 read with Section 120-B IPC it would make all the difference vis-à-vis Section 197 of the Code."

16. On perusal of the principle laid down by the

Hon'ble Supreme Court in the cases of V.Padmanabhan

Nair and R.Balakrishna Pillai, it is clear that the sanction

under Section 197 of Cr.P.C. is required if the offence

committed in the course of the same transaction in which

the official duty is performed or is purported to be

performed and it is not every offence committed by a

public servant while engaging in the performance of his

official duty which is entitled to the protection. Only an act

constituting an offence directly or reasonably connected

with his official duty shall require sanction for the

prosecution and if the quality of the act is important and if

it falls within the scope of the above said observation, then

the protection under Section 197 of Cr.P.C. will have to be

extended. If the act is done in collusion with the co-

accused without following the procedures and committed

any offence under the IPC while discharging duty or any

conspiracy with the co-accused, then the protection under

Section 197 Cr.P.C. is not entitled and launching the

prosecution has no bar.

17. By keeping in mind the said principles laid

down by the Hon'ble Supreme Court, now coming to the

act done by accused No.4 who is the Director of the Mines

and Geology Department who is authorised to accord

permission or lease to the person who approached the

Department for excavation of Mining Minerals and in

accordance with law, it has to be granted, if the application

filed by the existing lessee or new applicant under Section

27 of the MMDR Act. Admittedly, accused No.1 has

obtained lease for 20 years for excavation of fire clay, but

not for excavating the iron ore. Admittedly, accused No.1

has given sub-lease to one Deepchand Kishanlal for

extracting iron ore in the year 1962 and the said lease

period was already expired in the year 1994. Subsequently

an application for renewal of the licence has been filed

which was granted only in the year 2005 for excavation of

fire clay but not iron ore. Admittedly, accused No.1 moved

an application for removing the iron ore dust before the

Senior Geologist, Department of Mines and Geology,

Tumkur District and the same was forwarded to the

petitioner who is the Director of the Department. The

petitioner vide letter dated 29.01.2001 despatched on

31.01.2001 has accorded permission to remove the iron

ore dust and for the convenience, the letter issued by the

petitioner reads as under:

GOVERNMENT OF KARNATAKA

No.IMG 172 AML 93/15585-86 Office of the Director, Department of Mines and Geology, No.49,Khanija Bhavan, Race Course Road, Bengaluru-1, dtd.29.01.2001.

Despatched on 31.01.2001

To

The Senior Geologist, Department of Mines and Geology, Tumkur District.

Sub: Issue of Mineral Despatch permite - reg. Ref : Applicants request dt.21.11.2000.

**** Advertising to the subject cited above the applicant has requested to issue movement permite for the old worked pits for Iron ore. A copy of the representation is herein enclosed it is self explanatory.

Hence you are hereby requested to inspect the leased area and to ascertain the stock position of Iron ore dust and to issue movement permite for the dumped stock only, on payment of necessary royalty.

Yours faithfully,

SD/-

DIRECTOR

Copy to: The Mysore Stoneware Pipes & Potteries Limited, P.B.No.9537, 6th cross Road, Gandhinagar, Bangalore-560009 for information.

DIRECTOR

18. On bare reading of the letter of the petitioner

clearly reveals that he has not followed any procedure

prescribed under the MMDR Act. It is also pertinent to note

that accused No.1 was a licensee for extracting the fire

clay but not for an iron ore and as on the date of

permission granted by this petitioner to accused No.1 on

29.01.2001 despatched on 31.01.2001, there is no

existence of any licence either for extracting fire clay or

extracting any iron ore either by accused No.1 or by

Deepchand Kishanlal as the licence was already expired in

the year 1994 itself. The application for renewal was filed

and it was pending and the licence was granted for

extracting fire clay only in the year 2005. Such being the

case, there is a clear violation of procedure and licence

Rules under the MMDR Act by this petitioner by giving a

permission to accused No.1 for removing the iron ore dust

which is illegal.

19. Based upon the letter issued by accused No.1

to the Director on 21.11.2000 for removing the iron ore

dust on payments, the petitioner issued the order to the

Senior Geologist, Tumkur District for according permission

to remove the iron ore dust even though there is no

licence enforcing at that time. Learned Senior counsel for

the petitioner also produced the note sheet of the Mines

and Minerals Department, Tumkur where a note was put

up on the letter sent by accused No.1-Company and this

petitioner has given permission and based upon the

permission, the Department has accorded permission to

accused No.1 to remove the iron ore dust. The documents

were produced herein to show that the accused already

removed the iron ore dust by paying some royalty. But the

fact remains whether the iron ore or iron ore dust cannot

be sold without proper licence. Accused No.1 has no

authority to sell the same without obtaining the licence. It

is an admitted fact that no such licence has been granted

to accused No.1 by the Authorities and the note put up by

the official in the Mines and Mineral Department, Tumkur

clearly reveals that the permission granted by the

Department is only based upon the permission ordered by

the petitioner being a Director of the Mines and Geology

Department on 29.01.2001. On perusal of the entire

records, it is a clear violation of Rules and Regulation by

this petitioner, he has exceeded the power and without

following the procedures has accorded the permission to

accused No.1 to remove the iron ore dust. The documents

reveal that the iron ore contain nearly 68% of the iron.

Therefore, looking to every angle, it reveals that the

conspiracy between petitioner and accused No.1 is nothing

but illegal transportation of iron ore. Therefore, no

protection is available to the petitioner under Section 197

of Cr.P.C. for initiating prosecution against him under the

cases registered against him for the offences punishable

under the IPC. As regards to the Prevention of Corruption

Act, he has already retired from service in the year 2005

itself, therefore question of getting sanction under Section

19 of P.C. Act is not necessary. The contention raised by

the petitioner counsel that launching of the prosecution

against the petitioner is abuse of process of law and it

cannot be acceptable and on the other hand, the illegal

mining were detected by the Special Investigation Team

appointed by the Hon'ble Supreme Court. Otherwise, the

truth could have buried by accused No.1 who had hand in

gloves with the officials of the Mines and Mineral

Department.

20. As regard to the contention of the learned

senior counsel for the petitioner that the observation made

by the trial Court holding that the application filed for

sanction was pending and deemed sanction is not

applicable to the cases which was already pending before

the Court for the offences which was committed prior to

the amendment to the Prevention of Corruption Act, 2018.

Though the trial Court committed error in holding that

there is deemed sanction in view of the amendment to

Section 19 of P.C. Act, but for the reasons stated above by

this Court, the petitioner is not entitled for discharge from

the charges leveled against him.

21. Though the trial Court passed the order in

clubbing both charge-sheet case as well as private

complaint filed by the Mines and Mineral Department, but

while taking cognizance of the offence, the trial Court has

not taken any cognizance as against the petitioner in

respect of the offences under the MMDR Act. Merely some

error has been occurred in the order, that cannot be a

ground for the petitioner for quashing the order of taking

cognizance by the Trial Court.

22. In view of the same, the petition is devoid of

merits and liable to be dismissed.

23. Accordingly, the writ petition under Articles

226 and 227 of the Constitution of India read with Section

482 of Cr.P.C. filed by petitioner-accused No.4 is hereby

dismissed.

24. The cognizance taken by the trial Court on the

charge-sheet filed by the Lokayuktha Police is hereby

upheld and the trial Court is directed to take appropriate

cognizance in respect of the offences committed under the

MMDR Act and proceed with the trial by clubbing both the

cases.

Sd/-

JUDGE

GBB