Telangana High Court
Lt. Gen. Malhotra vs The State Of Telangana on 5 November, 2024
THE HONOURABLE SMT JUSTICE K. SUJANA
CRIMINAL PETITION No.6455 of 2023
ORDER:
This Criminal Petition is filed under Section 482 of Code
of Criminal Procedure, 1973 (for short 'Cr.P.C.') to quash the
proceedings against the petitioners/accused Nos.1 to 7 in
Crime No.91 of 2023 of Karkhana Police Station, Hyderabad,
registered for the offences punishable under Sections 406,
420, 464, 465, 468, 469, 471, 500 of the Indian Penal Code,
1860 (for short 'IPC') and Section 156 (3) of Cr.P.C.
2. The brief facts of the case are that respondent
No.2/de facto complainant received permission from the
learned XI Additional Chief Metropolitan Magistrate, for taking
cognizance and registering the case against the petitioners
stating that respondent No.2, a Brigadier in Directorate
General of Quality Assurance (for short 'DGQA'), was
subjected to a de novo Fact Finding Inquiry (for short 'inquiry')
conducted by petitioner Nos.1 and 2. The inquiry report
contained forged financial documents supplied by Petitioner
Nos.5 and 6. The original documents showed expenditure of
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Rs.8,06,162/-, while the forged documents claimed
Rs.12,60,541/-. It is further stated that DGQA confirmed the
forgery. Petitioner Nos.1 and 2 prepared tentative charges
using these forged documents. Petitioner No.7 was responsible
for replacing original documents with forgeries. It is alleged
that though Respondent No. 2 informed the Army Authorities
and DGQA, the Petitioner Nos.3 and 4 (then DG DGQA and
Director Vigilance Cell) did not take any action and on
contrary, they had cleared the forged documents. It is further
stated that the inquiry violated Army Rule 180 and Army HQ
AG Branch Policy, requiring the presence and signatures of
respondent No.2 on each page. Petitioner Nos.1 and 2, being
hand in hand with Petitioner Nos.5 to 7, ignored the said Rule
to forge documents. On repeated reminders, Petitioner Nos.1
and 2 falsely claimed that respondent No.2 stated "no action is
required" through letters dated 03.04.2021 and 30.03.2021.
3. Heard Sri B. Narasimha Sarma, learned Additional
Solicitor General of India appearing for Sri Gadi Praveen
Kumar, learned Deputy Solicitor General of India, for the
petitioners, as well as, Sri S. Ganesh, learned Assistant Public
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Prosecutor appearing on behalf of respondent No.1-State and
Sri Vikram Ahooja, party-in-person for respondent No.2.
4. Learned Additional Solicitor General of India appearing
on behalf of the petitioners submitted that respondent No.2
filed Writ Petition No.16914 of 2019, seeking vigilance
clearance and promotion to Major General, without
mentioning the allegations and this Court allowed the petition,
which was upheld on appeal. He further submitted that
respondent No.2 also filed Writ Petition No.17075 of 2021,
challenging the Fact Finding Inquiry and disciplinary
proceedings and that the Raksha Mantri approved disciplinary
action.
5. Learned Additional Solicitor General of India appearing
for the petitioners further submitted that the petitioners are
under the immunity available under Section 197 of Cr.P.C as
they are Central Government headed defense Officials. He
further submitted that respondent No.2 lodged complaint with
a delay of three-years and without assigning any satisfactory
explanation for the said delay. That apart, no prior sanction
from the concerned Authority was obtained before lodging the
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complaint. Therefore, the allegations leveled against the
petitioners are vague and baseless as there is a lack of specific
allegations against each petitioner and prayed the Court to
quash the proceedings against them.
6. Learned party-in-person/respondent No.2 filed counter
affidavit, sturdily opposing the contentions made by learned
Additional Solicitor General, appearing for petitioners. He
contended that there is no requirement of prior sanction as
per Section 197 of Cr.P.C., as forgery and fabrication of
records for personal gains do not form part of Official duties of
public servant. In support of the said contention, he relied on
the judgment of the Hon'ble Supreme Court in the case of
Station House Officer, CBI/ACB/Bangalore Vs. BA.Srinivas
and Another 1 . The relevant paragraph No.14 of the said
judgment reads as under:
"14. Again, it has consistently been laid down that the
protection under Section 197 of the Code is available to
the public servants when an offence is said to have been
committed "while acting or purporting to act in discharge
of their official duty", but where the acts are performed
using the office as a mere cloak for unlawful gains, such
acts are not protected. The statements of law in some of
2020 2 SCC 153
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the earlier decisions were culled out by this Court in
Inspector of Police v. Battenapatla Venkata Ratnam
[Inspector of Police v. Battenapatla Venkata Ratnam,
(2015) 13 SCC 87 : (2016) 1 SCC (Cri) 164] as under: (SCC
pp. 89-90, paras 7-9)
"7. No doubt, while the respondents indulged in the
alleged criminal conduct, they had been working as public
servants. The question is not whether they were in service
or on duty or not but whether the alleged offences have
been committed by them 'while acting or purporting to act
in discharge of their official duty'. That question is no
more res integra. In Shambhoo Nath Misra v. State of U.P.
[Shambhoo Nath Misra v. State of U.P., (1997) 5 SCC 326 :
1997 SCC (Cri) 676] , SCC para 5, this Court held that:
(SCC p. 328)
'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
records 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 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 the 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 [Shambhoo Nath Mishra v.
State of U.P., 1995 SCC OnLine All 492 : (1995) 32 ACC
775] as well as by the trial court on the question of
sanction is clearly illegal and cannot be sustained.'
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8. In Parkash Singh Badal v. State of Punjab [Parkash
Singh Badal v. State of Punjab, (2007) 1 SCC 1 : (2007) 1
SCC (Cri) 193] , at para 20 this Court held that: (SCC pp.
22-23)
'20. The principle of immunity protects all acts which the
public servant has to perform in the exercise of the
functions of the Government. The purpose for which they
are performed protects these acts from criminal
prosecution. However, there is an exception. Where a
criminal act is performed under the colour of authority
but which in reality is for the public servant's own
pleasure or benefit then such acts shall not be protected
under the doctrine of State immunity.'
and thereafter, at para 38, it was further held that:
(Parkash Singh Badal case [Parkash Singh Badal v. State
of Punjab, (2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] , SCC
p. 32)
'38. The question relating to the need of sanction under
Section 197 of the Code is not necessarily to be considered
as soon as the complaint is lodged and on the allegations
contained therein. This question may arise at any stage of
the proceeding. The question whether sanction is
necessary or not may have to be determined from stage to
stage.'
9. In a recent decision in Rajib Ranjan v. R. Vijaykumar
[Rajib Ranjan v. R. Vijaykumar, (2015) 1 SCC 513 : (2015)
1 SCC (Cri) 714] , SCC at para 18, this Court has taken
the view that: (SCC p. 521)
'18. ... 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
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duties and, therefore, provisions of Section 197 of the
Code will not be attracted.' "
(emphasis in original)"
7. Respondent No.2 further submitted that since the Court
did not order notice to the petitioners, prior sanction is not
required for registering the case and submitted that sanction
is necessary only for taking cognizance. He also pointed out
that he had already raised similar concerns by way of filing
the writ petitions but the documents were not provided to
prove the claims at that time. Moreover, he submitted that
since the criminal action involves forgery and fabricated
documents, sanction is not necessary. Therefore, he prayed
the Court to dismiss the criminal petition.
8. In the light of the submissions made by both the
learned counsel and a perusal of the material available on
record, it is noted that respondent No.2 specifically alleged
that petitioner Nos.1 and 2 used forged documents to prepare
charges against him and Petitioner No.7 was responsible for
replacing original documents. Further, petitioner Nos.3
and 4 - Directors at DGQA, had not taken any action against
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the alleged forgery and fabrication. In essence, respondent
No.2 is seeking dismissal of the petition, emphasizing the lack
of notice and the nature of the criminal charges and this
highlights the complexities of legal proceedings, where the
nuances of jurisdiction, notice, and sanction can significantly
impact the outcome.
9. As seen from the record, Writ Petition No.16914 of 2019
was filed by respondent No.2 seeking vigilance clearance and
promotion to Major General. However, the said petition did not
mention the allegations of forgery that were later raised in the
present complaint. Further, Writ Petition No.17075 of 2021
was filed challenging the Fact Finding Inquiry and disciplinary
proceedings initiated against respondent No.2 and even then
there was no mention of forgery allegations in the said
petition. That being so, it is noted that respondent No.2 had
filed these writ petitions before filing the complaint, without
there being any whisper regarding the alleged forgery and
fabrication and thereafter, questions relating to the alleged
forgery and fabrication were raised which gives rise to the
intention of delay and motivations on the part of respondent
No.2, behind the lodging of complaint. That apart, it is
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relevant to mention that as the respondent No.2 failed to file
any strong evidence in support of his allegations relating to
forgery and fabrication, the petitioners had acted in line with
departmental directions by considering the material available
on record thereof. Therefore, it can be observed that there is
no force in the contentions made by respondent No.2.
10. In view of the above discussion, it is held that prima
facie, the complaint lacks evidence and there are no
ingredients to show that the petitioners forged the documents
and enhanced expenditure. In other words, involvement of
petitioners in the alleged forgery and fabrication lacks
evidence and does not prove anything against the petitioners.
Further, filing of complaint after the adverse outcome of
inquiry suggests malice as the earlier writ petitions had no
mention with regard to the alleged forgery. That apart, the
contention whether the alleged offences have been committed
by petitioners 'while acting or purporting to act in discharge of
their official duty' has no relevance as there is no evidence
that would prove the involvement of petitioners in the forgery.
Further, as there is no prior sanction from the concerned
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authorities, continuation of proceedings against the
petitioners is nothing but abuse of process of law.
11. Therefore, this Court opines that the averments in the
complaint lodged by respondent NO.2 do not constitute the
offences as alleged against the petitioners, hence, the
proceedings initiated against them are liable to be quashed.
12. In view thereof, this Criminal Petition is allowed and the
proceedings against the petitioners in Crime No.91 of 2023 of
Karkhana Police Station, Hyderabad, are hereby quashed.
Miscellaneous applications, if any pending, shall stand
closed.
_______________
K. SUJANA, J
Date: 05.11.2024
sai
