Karnataka High Court
Praveenkumar Narayan Nayak vs The State Of Karnataka on 16 October, 2024
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.RACHAIAH
CRIMINAL REVISION PETITION NO. 100052 OF 2024
BETWEEN:
PRAVEENKUMAR NARAYAN NAYAK
AGE. 36 YEARS,
OCC. JUNIOR HEALTH INSPECTOR
PATTANA PANCHAYAT, HONNAVAR
PRESENT: CHIEF OFFICER
PATTANA PANCHAYAT, HONNAVAR
R/O. KOTEVADA, TQ. ANKOLA
DIST. UTTARKANNADA
...PETITIONER
(BY SRI. PRASHANT V MOGALI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY BHATKAL RURAL POLICE STATION, BHATKAL
KARNATAKA DHARWAD HIGH COURT BENCH,
Digitally signed
by DHARWAD
SREEDHARAN
BANGALORE
SUSHMA
LAKSHMI ...RESPONDENT
Location: HIGH (BY SMT. KIRTILATA R PATIL, HCGP)
COURT OF
KARNATAKA
THIS CRIMINAL REVISION PETITION IS FILED U/SEC.
397 R/W 401 OF CR.P.C. SEEKING TO CALL FOR THE LOWER
COURT RECORDS IN C.C.NO.1446/2021 PENDING BEFORE THE
ADDL. CIVIL JUDGE AND JMFC, BHATKAL AND DISCHARGE THE
PETITIONER IN C.C.NO.1446/2021 PENDING BEFORE THE
ADDL. CIVIL JUDGE AND JMFC BHATKAL & ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
22.07.2024 COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THIS COURT MADE THE FOLLOWING:
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CORAM: THE HON'BLE MR. JUSTICE S.RACHAIAH
CAV ORDER
(PER: THE HON'BLE MR. JUSTICE S.RACHAIAH)
1. This Criminal Revision Petition is filed by the petitioner
who is arraigned as accused No.2 in C.C.No.1446/2021.
The petitioner herein had filed an application under
Section 239 of the Code of Criminal Procedure seeking to
discharge him from the offences stated in the case. The
Trial Court vide its order dated 05.01.2024 rejected the
said application. Therefore, the petitioner is before this
Court seeking to set aside the said order.
2. The rank of the parties in the Trial Court henceforth will
be considered accordingly for convenience.
Brief facts of the case:-
3. It is the case of the prosecution that accused No.1 had
applied for a fresh passport and he wanted the birth
certificate to be produced before the competent
authority. Therefore, he applied for the birth certificate
before the Town Panchayat, Honnavar, U.K. District.
Accused No.2 who was working as a competent authority
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to issue a birth certificate, stated to have demanded
Rs.2,500/- to issue a duplicate birth certificate. Accused
No.1 stated to have paid Rs.2,500/- to accused No.2. A
birth certificate was issued to accused No.1.
4. Based on the said birth certificate, accused No.1 applied
for the passport. The authority ordered for verification of
the said birth certificate. Upon the said verification, it
appeared that the said birth certificate was bogus and
fabricated. Therefore, the Senior Superintendent of
Regional Passport Office lodged a complaint to the
Superintendent of Police, Bhatkal, Karwar District to take
suitable action against accused No.1. During
investigation, the respondent - Police found that accused
No.2 had issued the birth certificate to accused No.1.
Therefore, a case came to be registered against accused
No.2 and charge sheet came to be filed against both
accused Nos.1 and 2 for the offences stated supra.
5. Being aggrieved by the filing of charge sheet, the
petitioner is before this Court seeking to set aside the
order dated 05.01.2024 inter alia contending that
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accused No.2 was not working in the Pattana Panchayat
Office, Honnavar during the said period and he has been
falsely implicated in this case etc.,
6. Heard Shri Prashant V. Mogali, learned counsel for
petitioner and Smt. Kirtilata R. Patil, learned High Court
Government Pleader for respondent - State.
7. It is the submission of the learned counsel for the
petitioner that the findings of the Trial Court appear to be
erroneous and not proper, therefore, the impugned order
is liable to be set aside.
8. It is further submitted that the petitioner / accused No.2
as per the letter of the Chief Officer, Pattana Panchayath,
Honnavar was discharging his duties as Junior Health
Inspector from 29.11.2006 to 30.04.2016. There was no
definite work allotted to accused No.2. In the absence of
a particular work or particular job description, it cannot
be said that accused No.2 has issued the birth certificate
to accused No.1 for the purpose of applying for the new
passport.
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9. It is further submitted that the petitioner being a public
servant, prior sanction is mandatory before filing charge
sheet. In the absence of a prior sanction, the charge
sheet loses its significance.
10. It is further submitted that the Investigating Officer has
not conducted a proper investigation relating to the birth
certificate. Even though there is no whisper regarding
the issuance of the birth certificate to accused No.1 by
accused No.2, the name of accused No.2 has been
included in the charge sheet only for the purpose of
harassment and also to disturb the mental peace of the
public servant. Therefore, the charge sheet against the
accused No.2 is liable to be quashed and he has to be
discharged for the offences stated supra. Making such
submissions, learned counsel for petitioner prays to allow
the revision petition.
11. Per contra learned High Court Government Pleader
vehemently justified the order passed by the Trial Court
and further, he submitted that the accused No.2 was
working as a Junior Health Inspector at Pattana
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Panchayat, Honnavar. During his tenure as a Junior
Health Inspector, he had issued a birth certificate to
accused No.1 on 06.02.2015 relating to registration
No.1993-B-86. However, the said birth certificate is
related to Naveen s/o Dharmanaik.
12. It is further submitted that the Chief Officer of Pattana
Panchayat, Honnavar, submitted a detailed report
relating to the nature of work of accused No.2 and also
relevant documents relating to the alleged birth
certificate issued by accused No.2.
13. It is further submitted that prima facie the charge sheet
would disclose that accused No.2 issued a forged and
false birth certificate to accused No.1 for the purpose of
applying for a new passport. Therefore, the Trial Court
rightly rejected the application for discharge. Hence, it is
not appropriate to interfere with the order of the Trial
Court. Having said thus, the learned High Court
Government Pleader prays to dismiss the revision
petition.
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14. After having heard learned counsel for the respective
parties and also perused the findings of the Trial Court in
rejecting the discharge application filed by the petitioner,
now it is relevant to refer the judgment of the Hon'ble
Supreme Court relating to the manner in which such
applications would be considered. The Hon'ble Supreme
Court in the case of STATE Through Deputy
Superintendent of Police v. R. SOUNDIRARASU1,
paragraph Nos.60 to 74 held as under:
"60. Section 239 envisages a careful and
objective consideration of the question whether
the charge against the accused is groundless or
whether there is ground for presuming that he has
committed an offence. What Section 239
prescribes is not, therefore, an empty or routine
formality. It is a valuable provision to the
advantage of the accused, and its breach is not
permissible under the law. But if the Judge, upon
considering the record, including the examination,
if any, and the hearing, is of the opinion that there
is "ground for presuming" that the accused has
committed the offence triable under the chapter,
he is required by Section 240 to frame in writing a
charge against the accused. The order for the
framing of the charge is also not an empty or
1
2022 Livelaw (SC) 741
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routine formality. It is of a far-reaching nature,
and it amounts to a decision that the accused is
not entitled to discharge under Section 239, that
there is, on the other hand, ground for presuming
that he has committed an offence triable under
Chapter XIX and that he should be called upon to
plead guilty to it and be convicted and sentenced
on that plea, or face the trial. (See : V.C. Shukla v.
State through CBI, AIR 1980 SC 962).
61. Section 239 of the CrPC lays down that if
the Magistrate considers the charges against the
accused to be groundless, he shall discharge the
accused. The word 'groundless', in our opinion,
means that there must be no ground for
presuming that the accused has committed the
offence. The word 'groundless' used in Section 239
of the CrPC means that the materials placed before
the Court do not make out or are not sufficient to
make out a prima facie case against the accused.
62. The learned author Shri Sarkar in his
Criminal P.C., 5th Edition, on page 427, has opined
as:-
"The provision is the same as in S. 227,
the only difference being that the
Magistrate may examine the accused, if
necessary, of also S. 245. The Magistrate
shall discharge the accused recording
reasons, if after (i) considering the police
report and documents mentioned in S.
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173; (ii) examining the accused, if
necessary and (iii) hearing the arguments
of both sides he thinks the charge against
him to be groundless, i.e., either there is
no legal evidence or that the facts do not
make out any offence at all."
63. In short, it means that if no prima facie
case regarding the commission of any offence is
made out, it would amount to a charge being
groundless.
64. In Century Spinning and Manufacturing
Co. Ltd. v. State of Maharashtra, AIR 1972 SC
545, this Court has stated about the ambit of
Section 251(A)(2) of the Cr.P.C. 1898, which is in
pari materia with the wordings used in Section 239
of the CrPC as follows:-
"It cannot be said that the Court at the
stage of framing the charge has not to
apply its judicial mind for considering
whether or not there is a ground for
presuming the commission of the offence
by the accused. The order framing the
charges does substantially affect the
person's liberty and it cannot be said that
the Court must automatically frame the
charge merely because the prosecuting
authorities by relying on the documents
referred to in S. 173 consider it proper to
institute the case. The responsibility of
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framing the charges is that of the Court
and it has to judicially consider the
question of doing so. Without fully
adverting to the material on the record it
must not blindly adopt the decision of the
prosecution."
In para 15, this Court has stated as:-
"Under sub-sec. (2), if upon consideration
of all the documents referred to in S. 173,
Criminal P.C. and examining the accused,
if considered necessary by the Magistrate
and also after hearing both sides, the
Magistrate considers the charge to be
groundless, he must discharge the
accused. This sub-section has to be read
along with sub- sec. (3), according to
which, if after hearing the arguments and
hearing the accused, the Magistrate thinks
that there is ground for presuming that the
accused has committed an offence triable
under Chap. XXI of the Code within the
Magistrate's competence and for which he
can punish adequately, he has to frame in
writing a charge against the accused.
Reading the two sub-sections together, it
clearly means that if there is no ground for
presuming that the accused has
committed an offence, the charges must
be considered to be groundless, which is
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the same thing as saying that there is no
ground for framing the charges."
(Emphasis supplied)
65. Thus the word 'groundless', as
interpreted by this Court, means that there is no
ground for presuming that the accused has
committed an offence.
66. This Court has again dealt with this
aspect of the matter in Superintendent and
Remembrancer of Legal Affairs, West Bengal v.
Anil Kumar Bhunja, AIR 1980 SC 52. This Court
has stated in the said case as:-
"At this stage, even a very strong
suspicion found upon materials before the
Magistrate, which leads him to form a
presumptive opinion as to the existence of
the factual ingredients constituting the
offence alleged, may justify the framing of
charges against the accused in respect of
the commission of that offence."
67. The suspicion referred to by this Court
must be founded upon the materials placed before
the Magistrate which leads him to form a
presumptive opinion as to the existence of the
factual ingredients constituting the offence alleged.
Therefore, the words "a very strong suspicion"
used by this Court must not be a strong suspicion
of a vacillating mind of a Judge. That suspicion
must be founded upon the materials placed before
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the Magistrate which leads him to form a
presumptive opinion about the existence of the
factual ingredients constituting the offence alleged.
68. Section 239 has to be read along with
Section 240 of the CrPC. If the Magistrate finds
that there is prima facie evidence or the material
against the accused in support of the charge
(allegations), he may frame charge in accordance
with Section 240 of the CrPC. But if he finds that
the charge (the allegations or imputations) made
against the accused does not make out a prima
facie case and does not furnish basis for framing
charge, it will be a case of charge being
groundless, so he has no option but to discharge
the accused. Where the Magistrate finds that
taking cognizance of the offence itself was contrary
to any provision of law, like Section 468 of the
CrPC, the complaint being barred by limitation, so
he cannot frame the charge, he has to discharge
the accused. Indeed, in a case where the
Magistrate takes cognizance of an offence without
taking note of Section 468 of the CrPC, the most
appropriate stage at which the accused can plead
for his discharge is the stage of framing the
charge. He need not wait till completion of trial.
The Magistrate will be committing no illegality in
considering that question and discharging the
accused at the stage of framing charge if the facts
so justify.
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69. The real test for determining whether the
charge should be considered groundless under
Section 239 of the CrPC is that whether the
materials are such that even if unrebutted make
out no case whatsoever, the accused should be
discharged under Section 239 of the CrPC. The
trial court will have to consider, whether the
materials relied upon by the prosecution against
the applicant herein for the purpose of framing of
the charge, if unrebutted, make out any case at
all.
70. The provisions of discharge under Section
239 of the CrPC fell for consideration of this Court
in K. Ramakrishna and others v. State of Bihar and
another, (2000) 8 SCC 547, and it was held that
the questions regarding the sufficiency or reliability
of the evidence to proceed further are not required
to be considered by the trial court under Section
239 and the High Court under Section 482. It was
observed as follows:-
"4. The trial court under Section 239 and
the High Court under Section 482 of the
Code of Criminal
Procedure is not called upon to embark
upon an inquiry as to whether evidence in
question is reliable or not or evidence
relied upon is sufficient to proceed further
or not. However, if upon the admitted
facts and the documents relied upon by
the complainant or the prosecution and
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without weighing or sifting of evidence, no
case is made out, the criminal proceedings
instituted against the accused are required
to be dropped or quashed. As observed by
this Court in Rajesh Bajaj v. State NCT of
Delhi, [1999 (3) SCC 259] the High Court
or the Magistrate are also not supposed to
adopt a strict hypertechnical approach to
sieve the complaint through a colander of
finest gauzes for testing the ingredients of
offence with which the accused is charge.
Such an endeavour may be justified during
trial but not during the initial stage."
71. In the case of State by Karnataka
Lokayukta, Police Station, Bengaluru v. M.R.
Hiremath, (2019) 7 SCC 515, this Court observed
and held in paragraph 25 as under:-
"25. The High Court ought to have been
cognizant of the fact that the trial court
was dealing with an application for
discharge under the provisions of Section
239 CrPC. The parameters which govern
the exercise of this jurisdiction have found
expression in several decisions of this
Court. It is a settled principle of law that at
the stage of considering an application for
discharge the court must proceed on the
assumption that the material which has
been brought on the record by the
prosecution is true and evaluate the
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material in order to determine whether the
facts emerging from the material, taken on
its face value, disclose the existence of the
ingredients necessary to constitute the
offence. In State of T.N. v. N. Suresh
Rajan [State of T.N. v. N. Suresh Rajan,
(2014) 11 SCC 709, adverting to the
earlier decisions on the subject, this Court
held: (SCC pp. 721-22, para 29)
"29. ... At this stage, probative value
of the materials has to be gone into
and the court is not expected to go
deep into the matter and hold that the
materials would not warrant a
conviction. In our opinion, what needs
to be considered is whether there is a
ground for presuming that the offence
has been committed and not whether
a ground for convicting the accused
has been made out. To put it
differently, if the court thinks that the
accused might have committed the
offence on the basis of the materials
on record on its probative value, it
can frame the charge; though for
conviction, the Court has to come to
the conclusion that the accused has
committed the law does not permit a
mini trial at this stage.""
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72. The ambit and scope of exercise of power
under Sections 239 and 240 of the CrPC, are
therefore fairly well settled. The obligation to
discharge the accused under Section 239 arises
when the Magistrate considers the charge against
the accused to be "groundless". The Section
mandates that the Magistrate shall discharge the
accused recording reasons, if after (i) considering
the police report and the documents sent with it
under Section 173, (ii) examining the accused, if
necessary, and (iii) giving the prosecution and the
accused an opportunity of being heard, he
considers the charges against the accused to be
groundless, i.e., either there is no legal evidence
or that the facts are such that no offence is made
out at all. No detailed evaluation of the materials
or meticulous consideration of the possible
defences need be undertaken at this stage nor any
exercise of weighing materials in golden scales is
to be undertaken at this stage - the only
consideration at the stage of Section 239/240 is as
to whether the allegation/charge is groundless.
73. This would not be the stage for weighing
the pros and cons of all the implications of the
materials, nor for sifting the materials placed by
the prosecution- the exercise at this stage is to be
confined to considering the police report and the
documents to decide whether the allegations
against the accused can be said to be
"groundless".
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74. The word "ground" according to the
Black's Law Dictionary connotes foundation or
basis, and in the context of prosecution in a
criminal case, it would be held to mean the basis
for charging the accused or foundation for the
admissibility of evidence. Seen in the context, the
word "groundless" would connote no basis or
foundation in evidence. The test which may,
therefore, be applied for determining whether the
charge should be considered groundless is that
where the materials are such that even if
unrebutted, would make out no case whatsoever."
15. On careful reading of the dictum of the Hon'ble Supreme
Court, guidance has been given that while considering the
application for discharge, no detailed evaluation of the
materials or meticulous consideration of the possible
defences need be undertaken at this stage nor any
exercise of weighing materials in golden scales is to be
undertaken at this stage. The only consideration at the
stage of considering the discharge application is as to
whether the allegation or charge is groundless.
16. After having considered the dictum of the Hon'ble
Supreme Court stated supra, it appears from the present
case that the petitioner being accused No.2 in the charge
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sheet was working as Junior Health Inspector at Pattana
Panchayat, Honnavar from 29.11.2006 to 30.04.2016.
The accused No.1 is said to have approached accused
No.2 for the purpose of obtaining the birth certificate to
submit the same before the competent authority to
obtain a fresh passport. Accordingly, accused No.2 is
said to have received a sum of Rs.2,500/- from accused
No.1 and issued a birth certificate by affixing the
signature and seal on the said birth certificate.
17. When the said birth certificate was verified by the
competent authority, the authority came to know that the
said certificate was issued by accused No.2 by fabricating
it. The respondent - Police upon a complaint filed by the
complainant, submitted the charge sheet.
18. On careful perusal of the materials available on record, it
would indicate that prima facie a case has been made out
against the accused No.2 by the respondent - Police.
Therefore, at this stage, it cannot be said that the
accused No.2 has not committed any offences and it is
also not appropriate to discharge the accused without
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asking him to face the trial. Some of the documents
produced along with the charge sheet are required to be
looked into during trial. Therefore, I am of the
considered opinion that the order of the Trial Court in
rejecting the application filed under Section 239 of
Cr.P.C. is appropriate and there is no occasion for this
Court to interfere with the said findings.
19. As regards the sanction is concerned, the Trial Court
while rejecting the said discharge application, opined that
sanction is not necessary for the reason that the nature
of work of accused No.2 would not be associated with his
official work.
20. In this context, it is relevant to refer the judgment of the
Hon'ble Supreme Court in the case of RAJIB RANJAN v. R
VIJAY KUMAR2, wherein the Hon'ble Supreme Court held
in paragraph Nos.15 to 18 as under:-
"15. The sanction, however, 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
official duties". In order to find out as to whether the
alleged offence is committed while acting or purporting
2
(2015) 1 SCC 513
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to act in the discharge of his official duty, the following
yardstick is provided by this Court in Budhikota
Subbarao in the following words: (SCC p. 347, para 6)
"6. ... If on facts, therefore, it is prima
facie found that the act or omission for
which the accused was charged had
reasonable connection with discharge
of his duty then it must be held to be
official to which applicability of Section
197 of the Code cannot be disputed."
16. This principle was explained in some more
detail in Raghunath Anant Govilkar v. State of
Maharashtra, which was decided by this Court on 8-2-
2008 in SLP (Crl.) No. 5453 of 2007, in the following
manner : (SCC pp. 298-99, para 11)
"11. '7. ... "66. ... On the question of
the applicability of Section 197 of the
Code of Criminal Procedure, the
principle laid down in two cases,
namely, Shreekantiah Ramayya
Munipalli v. State of Bombay and
Amrik Singh v. State of was as follows
: (Amrik Singh case, AIR p.312 para 8)
'8. ... It is not every offence committed
by a public servant that requires
sanction for prosecution under Section
197(1) of the Criminal Procedure
Code; 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 is directly
concerned with his official duties so
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that, if questioned, it could be claimed
to have been done by virtue of the
office, then sanction would be
necessary....'
The real question therefore, is whether the acts
complained of in the present case were directly
concerned with the official duties of the three public
servants. As far as the offence of criminal conspiracy
punishable under Section 120-B read with Section 409
of the Penal Code is concerned and also Section 5(2) of
the Prevention of Corruption Act, are 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
17. Likewise, in Shambhoo Nath Misra v. State of
U.P., the Court dealt with the subject in the following
manner : (SCC p. 328, para 5)
"5. The question is when the public
servant is alleged to have committed
the offence of fabrication of record or
misappropriation of public fund, etc.
can he be said to have acted in
discharge of his official duties? It is not
the official duty of the public servant to
fabricate the false record and
misappropriate the public funds, etc. in
furtherance of or in the discharge of
his official duties. The official capacity
only enables him to fabricate the
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record or misappropriate the public
fund, etc. It does not mean that it is
integrally connected or inseparably
interlinked with the crime committed in
the course of same transaction, as was
believed by the learned Judge. Under
these circumstances, we are of the
opinion that the view expressed by the
High Court as well as by the trial court
on the question of sanction is clearly
illegal and cannot be sustained."
18. The ratio of the aforesaid cases, which is
clearly discernible, is that even while discharging his
official duties, if a public servant enters into a criminal
conspiracy or indulges in criminal misconduct, such
misdemeanour on his part is not to be treated as an act
in discharge of his official duties and, therefore,
provisions of Section 197 of the Code will not be
attracted. In fact, the High Court has dismissed the
petitions filed by the appellant precisely with these
observations, namely, the allegations pertain to
fabricating the false records which cannot be treated as
part of the appellants' normal official duties. The High
Court has, thus, correctly spelt out the proposition of
law. The only question is as to whether on the facts of
the present case, the same has been correctly applied."
21. On perusal of the above dictum of the Hon'ble Supreme
Court, it is held that the sanction, however, is necessary
if the offence alleged against the public servant is
committed by him "while acting or purporting to act in
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the discharge of his official duties". Even while
discharging his official duties, if a public servant enters
into a criminal conspiracy or indulges in criminal
misconduct, such misdemeanour on his part is not to be
treated as an act in the discharge of his official duties and
therefore, the provisions of Section 197 of the Code of
Criminal Procedure will not be attracted.
22. Having considered the facts and circumstances of the
case and also considering the ratio laid down by the
Hon'ble Supreme Court in the dicta stated supra, I am of
the considered opinion that the petitioner has not made
out any ground for discharge him from the case.
23. In the light of the observations made above, I proceed to
pass the following:-
ORDER
The Criminal Revision Petition stands dismissed.
Sd/-
(S.RACHAIAH)
JUDGE
