Karnataka High Court

Ajay Kumar vs State Of Karnataka on 7 April, 2022

Bench: M.Nagaprasanna

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 07TH DAY OF APRIL, 2022

                           BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              CRIMINAL PETITION No.9691 OF 2021

BETWEEN:

1.     AJAY KUMAR
       S/O RAM KIRAN
       AGED ABOUT 54 YEARS,
       WORKING AS
       CHIEF WORKSHOP MANAGER
       CENTRAL WORKSHOP,
       SOUTH WESTERN RAILWAY
       MYSURU - 570 008.

2.     M.RAVEENDARAN
       AGED ABOUT 60 YEARS
       AND WORKING AS
       DIVISIONAL CHIEF
       WORKSHOP MANAGER
       CENTRAL WORKSHOP,
       SOUTH WESTERN RAILWAY
       MYSURU - 570 008.
                                              ... PETITIONERS

(BY SRI ABHINAY Y.T., ADVOCATE (PHYSICAL HEARING))

AND:

STATE OF KARNATAKA
AT THE INSTANCE OF
ASSISTANT DIRECTOR,
DIRECTOR OF FACTORIES,
DIVISION-2, 1ST MAIN
                                      2




OPP YADAGIRI INDUSTRIAL ESTATE,
MYSURU 570020,
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
                                                     ... RESPONDENT

(BY SMT.YASHODHA K.P., HCGP (PHYSICAL HEARING))

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ORDER OF COGNIZANCE DATED
11.06.2019 OF REGISTRATION OF CRIMINAL CASE AGAINST THE
PETITIONER IN C.C.NO.1907/2019 BY THE JMFC (II COURT),
MYSURU FOR ALLEGED COMMISSION OF OFFENCE P/U/S. 92 OF
FACTORIES ACT, 1948 AND 41, 62 OF THE FACTORIES ACT AND
ALSO RULE 81, 112, 119(1) AND 137 (1) OF THE KARNATAKA
FACTORIES RULES, 1969.


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

                                 ORDER

The petitioners call in question proceedings in

C.C.No.1907 of 2019 pending before the JMFC (II Court), Mysore

arising out of complaint under Section 200 of the Cr.P.C.,

registered for offences punishable under Sections 41, 62 and 92

of the Factories Act, 1948 and Rules 84, 112, 119(1) and 137(1)

of the Karnataka Factories Rules, 1969 (for short 'the Act' and

'the Rules').

2. Heard Sri Y.T. Abhinay, learned counsel appearing for

the petitioners and Smt. K.P.Yashoda, learned High Court

Government Pleader appearing for the respondent.

3. Brief facts leading to filing of the present petition, as

borne out from the pleadings, are as follows:-

The petitioners are employees of the Railways and are

working in the cadre of Chief Workshop Engineer and Divisional

Chief Workshop Manager respectively. On 12-03-2019, an

employee while working on a machine sustained injuries and

was treated at the Railway Hospital and as required in law, Form

No.17 under Rule 130 of the Rules, a report was sent to the

competent authority reporting occurrence of accident. Based on

the said incident, a complaint was made by the respondent

against the petitioners on 06-06-2019 alleging violations of

Sections 41, 62 and 92 of the Act and also Rules 84, 112, 119(1)

and 137(1) of the Rules. The learned Magistrate takes

cognizance of the offences on 11-06-2019, for the aforesaid

offences. At that juncture, the petitioners have knocked the

doors of this Court in the subject petition.

4. The learned counsel appearing for the petitioners would

urge a solitary contention which would go to the root of the

matter. The learned counsel would submit that the petitioners

are admittedly public servants as obtaining under Section 21 of

the Indian Penal Code and are deemed to be public servants in

terms of Section 188 of the Railways Act, 1989. Therefore, he

would submit that taking cognizance of the offences and

proceeding further without sanction as obtaining under Section

197 of the Cr.P.C., would become an act without jurisdiction and

seeks quashment of proceedings.

5. On the other hand, the learned High Court Government

Pleader representing the respondent would though contend that

it is a matter of trial but admits on instructions that there is no

sanction accorded to prosecute the petitioners in the case at

hand.

6. I have given my anxious consideration to the

submissions made by the respective learned counsel and

perused the material on record.

7. In furtherance of the aforesaid submissions, the only

issue that calls for my consideration is, whether the proceedings

continued against the petitioners after having taken cognizance

for the aforesaid offences by the learned Magistrate without at the

outset sanction accorded for prosecuting the petitioners being

placed before the Court is maintainable?

8. Section 21 of the IPC defines a public servant. The

petitioners cannot but be held to be the public servants within

the definition of Section 21 of the IPC as also Section 188 of the

Railways Act, 1989. Section 197 of the Cr.P.C., reads as follows:

          "197. Prosecution           of   Judges   and   public
     servants.--

(1)When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of

such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013(1 of 2014)]--

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:2[Provided that where the alleged offence was committed by a person referred to in clause (b)during the period while a Proclamation issued under clause (1)of article 356 of the Constitution was in force in a State, clause (b)will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.

Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of the Indian Penal Code(45 of 1860).

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3)The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.

(3A)Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1)of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.

(3B)Notwithstanding anything to the Contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.

(4)The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."

(Emphasis supplied)

The allegation against the petitioners is that, the accident had

occurred due to lack of supervision and training to be given by

the petitioners to the persons who were injured. Therefore,

undoubtedly, this allegation against the petitioners would come

within the Act, as the act having been performed in the course of

their duties. Therefore, sanction under Section 197 of the

Cr.P.C. is imperative. The Court having taken cognizance for

offences as aforesaid against the petitioners could not have done

so without a valid sanction for such prosecution being placed

before the Court by the respondent. Therefore, the order taking

cognizance or any further proceedings taken thereto would

become actions which are contrary to law and are consequently,

rendered un-sustainable. The view of mine in this regard is

fortified by the judgment of the Apex Court in the case of

D.DEVARAJA v. OWAIS SABEER HUSSAIN reported in (2020) 7

SCC 695, wherein it is held as follows:

"72. On the question of the stage at which the trial court has to examine whether sanction has been obtained and if not whether the criminal proceedings should be nipped in the bud, there are diverse decisions of this Court.

            73. While      this      Court     has,       in D.T.
     Virupakshappa [D.T.        Virupakshappa v. C.      Subash,

(2015) 12 SCC 231: (2016) 1 SCC (Cri) 82] held that the High Court had erred [D.T. Virupakshappa v. C. Subash, 2013 SCC OnLine Kar 10774] in not setting aside an order of the trial court taking cognizance of a complaint, in exercise of the power under Section 482 of the Criminal Procedure Code, in Matajog Dobey [Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44: 1956 Cri LJ 140] this Court held that it is not always necessary that the need for sanction under Section 197 is to be considered as soon as the complaint is lodged and on the allegations contained therein. The complainant may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty and/or under colour of duty. However, the facts subsequently coming to light in course of the trial or upon police or judicial enquiry may establish the necessity for sanction. Thus, whether sanction is necessary or not may have to be determined at any stage of the proceedings.

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 [H. Siddappa v. Owais Sabeer Hussain, 2018 SCC OnLine Kar 3805] and order observed: (H. Siddappa case [H. Siddappa v. Owais Sabeer Hussain, 2018 SCC OnLine Kar 3805], SCC OnLine Kar para 5)

5. ... it is well-recognised 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.

77. In our considered opinion, the High Court clearly erred in law in refusing to exercise its jurisdiction under Section 482 of the Criminal Procedure Code to set aside the order of the Magistrate impugned taking cognizance of the complaint, after having held that it was a recognised principle of law that sanction was a legal requirement which empowers the court to take cognizance. The Court ought to have exercised its power to quash the complaint instead of remitting the appellant to an application under Section 245 of the Criminal Procedure Code to seek discharge.

78. The appeal is allowed. The judgment and order under appeal is set aside and the complaint is quashed for want of sanction.

(Emphasis supplied)

In the light of the admitted facts obtaining in the case at hand

with regard to the sanction not being accorded and the judgment

rendered by the Apex Court (supra), any further proceedings

permitted to be continued would become contrary to law.

7. For the aforesaid reasons, the following:

ORDER

(i) The criminal petition is disposed.

(ii) The order taking cognizance dated 11-06-2019, by the

Judicial Magistrate First Class (II Court), Mysore, in

C.C.No.1907 of 2019, for the aforesaid offences stands