Sriram D vs The State Of Karnataka
2022 Latest Caselaw 12001 Kant

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                                                         CRL.P No. 9890 of 2021




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 21ST DAY OF SEPTEMBER, 2022

                                               BEFORE

                             THE HON'BLE MR JUSTICE M.NAGAPRASANNA

                                CRIMINAL PETITION NO. 9890 OF 2021

                      BETWEEN:

                      SRIRAM D
                      S/O LATE A V DYAVAPPA
                      AGED ABOUT 56 YEARS
                      NO.77/H, 3RD FLOOR
                      17TH CROSS, 4TH STAGE
                      4TH BLOCK, BASAVESHWARA NAGARA,
                      BENGALURU-560 076.
                                                                  ...PETITIONER

                      (BY SRI. B VISWESWARAIAH, ADVOCATE)

                      AND:

                      1.    THE STATE OF KARNATAKA
                            BY POLICE INSPECTOR
                            SHESHADRIPURAM POLICE STATION
                            REPRESENTED BY STATE PUBLIC PROSECUTOR
                            HIGH COURT OF KARNATAKA
                            BENGALURU-560 009.
Digitally signed by
PADMAVATHI B K
Location: HIGH
COURT OF
                      2.    MR.RAVIKUMAR
KARNATAKA                   POLICE INSPECTOR,
                            VIGILANCE AND STF,
                            BDA HEAD OFFICE,
                            5TH MAIN ROAD,
                            KUMARAPARK WEST,
                            GUTTAHALLI,
                            BENGALURU - 560 020.
                                                               ...RESPONDENTS

                      (BY SMT.K.P.YASHODHA, HCGP FOR R1)
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                                           CRL.P No. 9890 of 2021




     THIS CRL.PETITION IS FILED U/S.482 OF CR.P.C
PRAYING    TO   QUASH        THE  CHARGE     SHEET    IN
C.C.NO.5017/2021 IN CR.NO.89/2020 FOR THE OFFENCES
P/U/S 120B, 406, 409, 417, 463, 465, 467, 470, 420, 471,
473, 472, 474, 475, 476 R/W 511 OF IPC REGISTERED BY
SHESHADRIPURAM P.S., BANGALORE PENDING ON THE FILE
OF THE IV ACMM, BANGALORE AND ALL CONSEQUENT
PROCEEDINGS AND ETC.

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

                              ORDER

The petitioner-accused No.12 is before this Court calling

in question the proceedings in C.C.No.5071/2021 (arising out of

Crime No.89/2020) registered for the offences punishable

under Sections 120B, 406, 409, 417, 463, 465, 467, 470, 420,

471, 473, 472, 474, 475, 476 R/W 511 OF IPC.

2. Heard the learned counsel appearing for the

petitioner and the learned HCGP appearing for respondent

No.1.

3. The learned counsel appearing for the petitioner

would submit that this Court, insofar as it concerns other public

servants, who were co-accused, along with the petitioner, in

the very same crime, has quashed the proceedings in

Crl.P.No.8854/2021 and connected matters, disposed of

CRL.P No. 9890 of 2021

on 22.03.2022, in the light of the fact that they were public

servants and sanction which was imperative for continuance of

any such trial against those accused has not been obtained.

4. Since, the petitioner is a co-accused and is also a

public servant would get covered by the reasons so rendered

by this Court in the aforesaid judgment. This Court in the

criminal petition (supra) has held as follows:

"11. The afore-narrated facts being not in dispute, are not reiterated. The issue that fall for consideration is, whether further proceedings could go on against the petitioners, who are admittedly Officers of the BDA, who are alleged of preparation of draft CDRs' on which the aforesaid offences are levelled against the petitioners?

12. Section 197 of 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-

CRL.P No. 9890 of 2021

(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: 1 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.

(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.

CRL.P No. 9890 of 2021

(3A) 1 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 , 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, Magis- trate or public servant is to be conducted, and may specify the Court before which the trial is to be held."

(Emphasis supplied)

CRL.P No. 9890 of 2021

In the light of the afore-extracted provision, a sanction for prosecution for the offences that are made punishable under the provisions of Indian Penal Code, 1860, is imperative, under Section 197 of the Cr.P.C. The Apex Court in the case of INDIRA DEVI (supra), has held as follows:

"2. Megharam is alleged to have tampered with and fabricated the agreement with the intention to defraud. This was allegedly done in collusion with the then executive officer of the Municipality, one Surender Kumar Mathur and "the concerned clerk and others", by enlarging the dimensions of the plot which have been sold to him with the intention to grab the land and house occupied by the complainant and her husband. The Khasra number is also alleged to have been changed from 1179/03 to 1143/04. This fact is stated to have come to the notice of the complainant only when they were served with a court notice when they were in physical possession of the plot with the house and the shop. Her husband is stated to have gone to Jaipur for treatment of cancer. The accused persons are, thus, alleged to have committed the offences of fraudulently making a scheduled caste women, her cancer diagnosed husband and other family members homeless. It may be noted that Respondent No.2 herein, Yogesh Acharya was not named in the FIR but, apparently, he is stated to be "the concerned clerk".

3. In pursuance of the investigation, a charge sheet was filed and charges were framed vide order dated 10.04.2012 against Megharam. Once again Respondent No.2

CRL.P No. 9890 of 2021

was not named in the charge sheet but a reference was made to Megharam acting in collusion with "co-accused persons".

4. The records placed before us do not reflect how Respondent No.2 was exactly roped in, but suffice to say, Respondent No.2 moved an application under Section 197 of the CrPC before the trial court stating that he was a public servant and what he did in respect of allotment of lease, that was executed in favour of Megharam, was done during the course of his official duty and thus he was entitled to protection under the aforementioned provision. He also sought to assail the charge sheet as the same had been filed without obtaining sanction of the competent authority under Section197 of the CrPC.

5. The trial court dismissed the application vide order dated 10.08.2017, while noticing that Respondent No.2 had not been mentioned in the FIR. It was opined that it was the duty of Respondent No.2 to bring irregularities to the knowledge of the competent officers, i.e. Megharam had mentioned the wrong Khasra number in the lease but no documents of ownership of the land were produced. The trial court was of the view that had the discrepancies been brought to the knowledge of the competent officers by Respondent No.2, the disputed lease would not have been issued. The result of the failure to do so caused the forged lease to be prepared. Respondent No.2 had also drafted the disputed lease in which he failed to mention necessary details. It was, thus, opined that Respondent No.2 was liable to be prosecuted against for having committed criminal offence to procure a forged lease. What

CRL.P No. 9890 of 2021

Respondent No.2 did was held not to be done by the public servant in discharge of his official duty and thus protection under Section 197 of the CrPC would not come to his aid.

6. Respondent No.2 thereafter filed a Crl. Misc. Petition No.3138/2017 under Section 482 of the CrPC before the High Court of Judicature at Jodhpur assailing the said order of the trial court. The High Court, vide impugned order dated 03.10.2017, allowed the petition. It was opined that the case was similar to the one of Devi Dan v. State of Rajasthan (2014 SCC Online Raj 4584). The High Court had opined therein that sanction under Section 197 of the CrPC was required before triggering any prosecution against the Station House Officer for filing/failing to file an FIR and for other criminal acts committed during the discharge of his duties. The complainant, aggrieved by the said judgment, has approached this court by filing a special leave petition. The State has also filed an SLP. Leave was granted in both the matters.

7. The appellant contended before us that the involvement of Respondent No.2 only came to light during investigation. He had failed to bring the irregularities to the knowledge of his superiors which was instrumental in issuing the forged lease. Thus, he had conspired with his superiors in dishonestly concealing the forgery, and intentionally omitting mentioning the date of the proceedings on the order sheet. Such action of forging documents would not be considered as an act conducted in the course of his official duties and, thus Section 197 of the CrPC would not give protection to Respondent No.2.

CRL.P No. 9890 of 2021

8. On the other hand, Respondent No.2 endeavoured to support the impugned judgment of the High Court by emphasising that in FIR only Megharam along with some unnamed officials were mentioned. Surender Kumar Mathur, the Executive Officer of the Nagar Palika, had filed a petition under Section 482 of the CrPC relating to the same transaction and the High Court had granted him protection under Section 197 of the CrPC vide order dated 22.02.2018. The conduct of putting his initials was held to be an act done in discharge of his duties. Similarly, Sandeep Mathur, a Junior Engineer, who was part of the same transaction, was granted protection by the Sessions Court vide order dated 19.03.2020, once again under the same provision, i.e., Section 197 of the CrPC. Both the orders remained unchallenged by the complainant and the State. Further, it has been argued that Respondent No.2 was simply carrying out his official duty which is apparent from the work allotted to him that pertained to allotment, regularisation, conversion of agricultural land and all kinds of work relating to land and conversion. The application of Megharam was routed through the office, and the proceedings show that the file was initially put up before the Executive Officer, who directed inspection, which was carried out by the Junior Engineer. Thereafter, file was placed before the Executive Officer again and only then was it signed by the Municipal Commissioner. The two key people involved in the process had already been granted protection and thus Respondent No.2 herein, who was merely a Lower Division Clerk, could not be denied similar protection.

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CRL.P No. 9890 of 2021

9. The learned counsel for the respondent relied upon the judgments of this Court in B. Saha & Ors. Vs. M.S. Kochar reported in (1979) 4 SCC 177 and State of Maharashtra Vs. Dr.Budhikota Subbarao (1993) 3 SCC 339, to contend that Section 197 of the CrPC ought to be read in a liberal sense for grant of protection to the public servant with respect to actions, which though constitute an offence, are "directly and reasonably" connected with their official duties.

10. We have given our thought to the submissions of learned counsel for the parties. Section 197 of the CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognisance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance. [See Subramanian Swamy Vs. Manmohan Singh4]. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him "while acting or purporting to act in the discharge of his

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CRL.P No. 9890 of 2021

official duty" and in order to find out whether the alleged offence is committed "while acting or purporting to act in the discharge of his official duty", the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties. [See State of Maharashtra Vs. Dr. Budhikota Subbarao reported in (1993) 3 SCC 339. The real question, therefore, is whether the act committed is directly concerned with the official duty.

11. We have to apply the aforesaid test to the facts of the present case. In that behalf, the factum of Respondent No.2 not being named in the FIR is not of much significance as the alleged role came to light later on. However, what is of significance is the role assigned to him in the alleged infraction, i.e. conspiring with his superiors. What emerges there from is that insofar as the processing of the papers was concerned, Surendra Kumar Mathur, the Executive Officer, had put his initials to the relevant papers which was held in discharge of his official duties. Not only that, Sandeep Mathur, who was part of the alleged transaction, was also similarly granted protection.

The work which was assigned to Respondent No.2 pertained to the subject matter of allotment, regularisation, conversion of agricultural land and fell within his domain of work. In the processing of application of Megharam, the file was initially put up to the Executive Officer who directed the inspection and the inspection was carried out by the Junior Engineer

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CRL.P No. 9890 of 2021

and only thereafter the Municipal Commissioner signed the file. The result is that the superior officers, who have dealt with the file, have been granted protection while the clerk, who did the paper work, i.e. Respondent No.2, has been denied similar protection by the trial court even though the allegation is of really conspiring with his superior officers. Neither the State nor the complainant appealed against the protection granted under Section 197 of the CrPC qua these two other officers.

12. We are, thus, not able to appreciate why a similar protection ought not to be granted to Respondent No.2 as was done in the case of the other two officials by the Trial Court and High Court respectively. The sanction from competent authority would be required to take cognisance and no sanction had been obtained in respect of any of the officers. It is in view thereof that in respect of the other two officers, the proceedings were quashed and that is what the High Court has directed in the present case as well.

13. In view of the aforesaid, the appeals are dismissed leaving the parties to bear their own costs."

(Emphasis supplied)

In the light of the afore-extracted judgment, which delineates the law of according sanction, even for the offence punishable under the Indian Penal Code, 1860 and admittedly, in the case at hand, sanction not being accorded, further proceedings

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CRL.P No. 9890 of 2021

against the petitioners cannot be permitted to continue.

13. Learned counsel for respondent No.2 would admit that though the communication is sent on 02.03.2021, the sanction is yet to be accorded by the competent authority. Therefore, the further proceedings on the merit of the matter, at this juncture, in the peculiar circumstances would not be warranted. Further proceedings against the petitioners will have to be continued only after the sanction is accorded by the competent authority and such sanction is placed before the Court, before whom the proceedings are pending consideration.

14. It is needless to observe that the competent authority while granting sanction would have to look into the documents that are necessary to be looked into and also the submissions made by the learned counsel for the petitioners that there was no witness, who has stated about the role of the petitioners in the entire episode of the alleged crime, against the petitioners.

15. For the purpose of want of sanction, further proceedings against these petitioners would stand obliterated."

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5. In the light of the issue being covered by the

judgment so rendered by this Court (supra), the same would be

applicable to the case at hand as well.

6. For the aforesaid reasons, the following:

ORDER

i) Criminal Petition is allowed-in-part.

ii) The order taking cognizance without sanction being accorded for prosecution against the petitioner, stands quashed.

iii) The matter is remitted back to the competent authority for passing appropriate orders with regard to grant of sanction or otherwise, for prosecution of the petitioner.

Sd/-

JUDGE

VM