Karnataka High Court
Subhashchandra vs The State Of Karnataka And Anr on 25 September, 2024
Author: K Natarajan
Bench: K Natarajan
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CRL.P No. 200578 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K NATARAJAN
CRIMINAL PETITION NO.200578 OF 2024
(482(Cr.PC)/528(BNSS))
BETWEEN:
SUBHASHCHANDRA S/O NIMBENNAPPA,
AGE: 75 YEARS, OCC: RETIRED VILLAGE ACCOUNTANT,
R/O ITAGA, TQ. CHITTAPUR,
DIST. KALABURAGI-585124.
...PETITIONER
(BY SRI. CHAITANYAKUMAR CHANDRIKI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH CHITTAPUR P.S,
DISTRICT KALABURAGI-585124,
Digitally signed
by SHIVALEELA REPRESENTED BY ADDL. SPP,
DATTATRAYA HIGH COURT OF KARNATAKA,
UDAGI KALABURAGI BENCH-585107.
Location: High
Court Of
Karnataka 2. RAVINDRA S/O SHANKAR DAAMA,
AGE: 41 YEARS, OCC: TAHASILDAR,
R/O CHITTAPUR, TQ. CHITTAPUR,
DIST. KALABURAGI-585124.
...RESPONDENTS
(BY SMT. ANITA M. REDDY, HCGP;
NOTICE TO R-2 SERVED BUT UN-REPRESENTED )
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO QUASH THE FIR COMPLAINT AND CHARGE
SHEET IN C.C. NO. 1437/2022 (CRIME NO.58/2015) REGISTERED BY
THE CHITTAPUR P.S. DIST. KALABURAGI FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 465, 468, 471, 406, 420 READ WITH
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34 OF IPC, PENDING ON THE FILE OF CIVIL JUDGE AND JMFC COURT
AT CHITTAPUR, DIST. KALABURAGI.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K NATARAJAN
ORAL ORDER
(PER: HON’BLE MR JUSTICE K NATARAJAN)
This petition is filed by the petitioner-accused No.1
under Section 482 of Cr.P.C. for quashing the criminal
proceedings in C.C.No.1437/2022 arising out of Crime No.
58/2015 registered by Chittapur Police Station,
Kalaburagi, charge-sheeted for the offence punishable
under Sections 465, 468, 471, 406, 420 read with Section
34 IPC pending on the file of Civil Judge & JMFC,
Chittapur.
2. Heard the arguments of the learned counsel for
the petitioner and learned High Court Government Pleader
for the respondent-State. Respondent No.2 served and
unrepresented.
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3. The case of the prosecution is that on the
complaint filed by the Tahsildar of Chittapur to the police
on 21.06.2015 alleging that as per the direction issued by
the Deputy Commissioner, Kalaburagi, and report sent by
the Revenue Inspector on 21.06.2015 and Assistant
Commissioner letter dated 07.06.2012/07.07.2012 on
verifying the revenue documents from the year 1963-64 to
1992-93, it was found in Sy.No.198 about 195.15 acres
land belongs to the Government and during the year
1993-94 when the accused working as a Village
Accountant in collusion with the accused Nos.2 and 3
given the RTC by changing the name of the accused No.2
and 3 measuring 1 acre and 3 acres respectively, which
was belongs to the Government land and given to the
accused Nos.2 and 3. Therefore, on the direction of the
Deputy Commissioner, the Tahsildar filed the complaint.
The police initially registered the FIR also for the offences
192(A), 192(A)(1), 192(III) of Karnataka Land Revenue
Act, 1964 (for short, hereinafter referred to as ‘the KLR
Act’). Subsequently investigated the matter and filed the
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charge-sheet by dropping the Land Revenue Act and
charge-sheeted only for the offence punishable under
Section 465, 468, 471, 406, 420 read with Section 34 of
IPC, which is under challenge.
4. The learned counsel for the petitioner
challenged the criminal proceedings mainly on the ground
that the petitioner was worked as village accountant
during the year 1993-94 and he was retired from the
service in the year 2007 itself and the FIR was registered
in 2015, no proceedings or departmental enquiry shall be
initiated against the retired employee after four years of
the retirement as per Rule 214 of KCSR. Therefore,
initiating criminal proceeding against the petitioner is
nothing but abuse of process of law.
5. The second contention of the learned counsel is
that the petitioner said to be committed offence during
discharge of official duty as a village accountant.
Therefore, the sanction of the state Government under
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Section 197 Cr.P.C. is must which was not obtained.
Therefore, the criminal proceeding cannot be sustainable.
6. In support of this case, he has relied upon the
judgments of the Co-ordinate Bench in
Crl.P.No.3245/2024 dated 24.06.2024 and Writ Petition
No.17708/2022 (S-RES) dated 16.11.2022. Hence, prayed
for allowing the petition.
7. Per contra, learned High Court Government
Pleader has seriously objected the petition and contending
that the offence committed by the accused is not
discharging the official duty which is in collusion with the
accused Nos.2 and 3 got changed the name of the accused
and grabbed the Government land more than 7 acres
which cannot be considered as discharging official duty
and a criminal prosecution can be launched even after the
retirement of the official. Therefore, the learned High
Court Government Pleader prayed for dismissal of the
petition.
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8. Having heard the arguments and perused the
records, on the perusal of the same, it is alleged that
during the year 1992-93 the accused was Village
Accountant at that time on the request of the accused
Nos.2 and 3 is said to be created the false document,
forged the signature and mutated the names of the
accused Nos.2 and 3 in respect of the land belongs to the
Government in Sy.No.198, the mutation was made
No.117/2008-09 for 4 acres of land in the name of
accused No.3 and 3 acres of land in the name of the
accused No.2, total 7 acres of land has been grabbed
belongs to the Government. The investigation paper
reveals this accused was in collusion with the accused
Nos.2 and 3, changed the names of the accuse Nos.2 and
3 and committed the offence.
9. Now the contention of the petitioner counsel is
that the petitioner was retired from the service in the year
2007 itself. Therefore, after eight years of his retirement,
the criminal proceedings cannot be initiated against him.
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CRL.P No. 200578 of 2024
In support of his case, he has relied upon the judgment of
the Co-ordinate Bench in Writ Petition No.17708/2022 in
the case of Anil Kumar and another vs. The State of
Karnataka and another DD 16.11.2022 wherein the said
case where the petitioner was retired from the service and
superannuation on 30.06.2018 and 31.08.2020 and
enquiry was initiated by the department as per the terms
of Rule 214 of KCSR Rules, wherein para-2 of the order
reveals that there was already enquiry was initiated in
the2005-06 itself prior to the retirement. Therefore,
second charge memo for the year 2022 is not sustainable
after the retirement of the said petitioner. Therefore the
Co-ordinate Bench quashed the initiation of the
departmental enquiry after more than four years. The
facts and circumstances of case herein this case there is
no departmental enquiry initiated by the department after
four years of the retirement of this petitioner. Therefore,
the said order relied by the petitioner counsel not
applicable to the case on hand.
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10. In respect of the another contention raised by
the learned counsel that there is no sanction obtained
under Section 197 of Cr.P.C. for filing charge-sheet or
taking cognizance. In support of his case, he has relied on
S.Sudhakar Shetty s. State of Karnataka and another
in Crl.P.No.3245/2024 dated 24.06.2024 wherein the
said case where the alleged offence was 409, 477A of IPC
where the said petitioner was Panchayat Development
Officer and he has misappropriated the amount of
Rs.11,85,570/- during discharge of his official duty. While
discharging the official duty when any negligence on the
part of the accused or any misappropriation where the
work was entrusted to the petitioner for discharging the
official duty, therefore the sanction under Section 197
Cr.P.C. is mandatory, on that ground, the criminal
proceeding has been quashed by the Co-ordinate Bench.
There is no second thought in respect of the law laid down
by the Supreme Court which was relied by the Co-ordinate
bench in the case of State of Punjab vs. Labh Singh
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CRL.P No. 200578 of 2024
(2014) 16 SCC 807 and Rakesh Kumar Mishra vs.
State of Bihar and others (2006) 1 SCC 557.
11. However, this Court in a similar situation in the
case of Dr.M.Basappa Reddy vs. State of Karnataka
by SIT/Lokayukta in Writ Petition No.12915/2021
(GM-RES) Dated 25.10.2021, wherein the accused-
petitioner was a Director of the Mines and Geology
Department, was illegally sanctioned the license to the
accused persons under the Mines and Minerals Act by
creation of the documents falsely and forging the
document and granted the license. Wherein the said case
the said petitioner-Basappa Reddy was retired from the
service in the year 2005 itself, where the prosecution was
launched in the year 2017 by the Lokayukta in Crime
No.3/2017 and charge-sheet came to be filed in the year
2021, where the petitioner-accused was challenged the
charge-sheet on various ground, especially the sanction
under Section 197 Cr.P.C. and the accused was retired
from long back, about more than ten years back. This
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Court by considering the arguments addressed by the
counsels, who were appeared in the said case, and by
relying upon the judgment of the Hon’ble Supreme Court
wherein it has held in para-12, 13, 14 and 15 as under:
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
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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
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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)
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“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)
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CRL.P No. 200578 of 2024
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
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CRL.P No. 200578 of 2024certainly 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
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CRL.P No. 200578 of 2024No.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
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CRL.P No. 200578 of 2024duty 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
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CRL.P No. 200578 of 2024never 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
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CRL.P No. 200578 of 2024condition 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
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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.”
12. On careful reading of the paragraphs of the
judgment, this Court relied upon the judgment of State of
Kerala vs. Padmanabhan Nair at para 7 it was held that
the contention of the respondent that for the offences
under Sections 406 and 409 read with Section 120-B of
IPC and by relying upon the judgment of Padmanabhan
Nair and R.Balakirishna Pillai, wherein this Court has
held at para-16, the sanction is required if the offences
committed in the course of the same transaction in which
official duty is performed or perpetuated to be performed
as it is every offence committed by public servant while
engaging in the performance of his official duty which is
entitled for protection. If the act is not comes under the
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performing the official duty, the protection under Section
197 is not available and based upon the judgment of the
Hon’ble Supreme Court, this Court dismissed the writ
petition filed by the accused and subsequently the said
accused challenged the same before the Hon’ble Supreme
Court wherein the Hon’ble Supreme Court dismissed the
SLP and confirmed the order of this Court.
13. Such being the case, I am of the view, in this
case though the petitioner was retired in the year 2015,
but the criminal prosecution is launched in 2017 for
collusion, creating the false document and forging the
document and granting the land of the Government to the
accused Nos.2 and 3 more than 7 acres. Even in 214
(2)(b), 214(3) of the KCSR which are reveal only judicial
proceedings cannot be initiated for purpose of recovery or
initiating departmental enquiry or taking any action under
the department level, whereas nowhere it is stated no
criminal prosecution shall be initiated against the accused
for having committed the offence that too 468, 471, 420,
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CRL.P No. 200578 of 2024
465 in collusion with the other accused. Therefore, the
petition is devoid of merits and liable to be dismissed.
14. Accordingly, the petition is dismissed.
Sd/-
(K NATARAJAN)
JUDGE
SDU
LIST NO.: 1 SL NO.: 1
CT:SI