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1998 DIGILAW 520 (KAR)

R. NINGE GOWDA v. A. N. GOPAL

1998-08-10

B.K.SANGALAD

body1998
( 1 ) THIS petition is filed against the orders dated 11-4-91 and 26-9-91 holding that the sanction is not necessary and for issuing summons against the petitioner. ( 2 ) THE facts in nut-shell are as follows :- One Smt. Banumati, second wife of the second respondent died in unnatural circumstance on 27-8-89. In Sep. , 1989, a complaint was registered by the brother of the deceased Sudhakar in Crime No. 182/89 by the Kolar Police Station for the offence punishable under Secs. 302 and 201, IPC. The petitioner was the I. O. On 6-11-89, the respondent got the anticipatory bail from the Addl. Sessions Judge, Kolar in C. Misc. No. 160/89. In the meanwhile a claim petition was filed by the respondent with the insurance company seeking insured amount on the policy of the deceased. On 5-4-90 the respondent alleged in the complaint that he is summoned by the petitioner to produce document relating to claim of insurance amount in respect of the deceased-Banumathi. Since the petitioner was not present, the respondent was asked to come on the following day. On 6-4-80, the respondent was brought for questioning in Crime No. 182/89. As he tried to run away, he was caught and was put in the lock-up and later on released on bail on the same day. The charge-sheet was filed in Crime No. 182/89 before the Sessions Judge, against the respondent for offence punishable under Secs. 302 and 301, IPC. After the respondent was released on bail, he informed the editors of HONNUDI and KOLARAVANI newspapers and gave concocted and fabricated version about the alleged incident of 6-4-90. The said newspapers widely gave publicity and it is alleged that the same harmed the reputation of the petitioner. Hence on 9-4-90, the petitioner filed a complaint before the Prl. Chief Judicial Magistrate in CC No. 580/90 for defamation against the respondent and Prabhakar, Editor of Honnudi under Sec. 500, IPC. The petitioner on 16-4-90 filed another complaint in CC No. 609/90 against the respondent and B. V. Narasimha Murthy, Editor of Kolaravani under Sec. 500, IPC. In both the cases, the summons were issued to the accused persons. On 21-9-90 the respondent filed the complaint in Cr. No. 37/90 against the petitioner for offence punishable under Sections 341, 342, 345, 323 and 504, IPC after lapse of nearly six months. In both the cases, the summons were issued to the accused persons. On 21-9-90 the respondent filed the complaint in Cr. No. 37/90 against the petitioner for offence punishable under Sections 341, 342, 345, 323 and 504, IPC after lapse of nearly six months. The allegations in the complaint was that he visited the Police Station on 6th April, 1990 as directed. The petitioner demanded the illegal gratification of Rs. 10,000/- to delete his name. It is further alleged that the petitioner used abusive language against him and confined him in lock-up till 6 p. m. and later released on bail at 6 p. m. on the same day. On 11-4-91 the learned Magistrate takes the cognizance of Cr. 37/90 for the offences under Sections 323, 341 to 343 and 504, IPC and further holds that no sanction under Sec. 197 is necessary. Hence the impugned orders came to be passed. ( 3 ) MR. Viswanath, learned Counsel for the petitioner submits that taking cognizance, issuing summons and also holding that sanction was not necessary is also illegal. On the other hand, Mr. Anand Navalgimath, learned Counsel for respondent submits that the learned Magistrate was justified in taking cognizance and issuing the summons and also holding that sanction was not necessary. Both the Advocates relied upon various judgments. 3a. Mr. Viswanath, learned Counsel for the petitioner has relied upon the decisions in the case of State of Mysore v. Manikyam, (1968) 2 Mys LJ 11, in the case of N. Huchmasthi Gowda v. Jammada Aiyappa, (1973) 2 Mys LJ 518, in the case of Ramesh B. v. K. Shankar, (1984) 1 Kant LJ 258, in the case of K. S. Prabhakar v. M/s. Bhadra SSK, Niyamith Doddapathi, (1995) 3 Kant LJ 85 : (1995 Cri LJ 2289), in the case of Premjit Maohanandav Mohanpani Karua, 1996 Cri LJ 836 (Orissa) and Section 170 of the Karnataka Police Act. On the other hand, Mr. Anand Navalgimath, learned Counsel for the respondent has relied upon the decisions in the case of R. Balakrishna Pillai v. State of Kerala, AIR 1996 SC 901 and in the case of H. Shivappa v. Puttaswamy, ILR (1991) Kant 1146. ( 4 ) IN nut-shell, all these decisions state that the facts and circumstances of each case will have bearing whether the sanction is necessary or not. ( 4 ) IN nut-shell, all these decisions state that the facts and circumstances of each case will have bearing whether the sanction is necessary or not. The crux of the decisions is that the act alleged should be seen whether it was done in the discharge of the official duties or whether there was no nexus at all between the act alleged to have been committed and the duties to be performed. The Hon'ble Supreme Court has observed in the case of Balakrishna Pillai v. State of Kerala ( AIR 1996 SC 901 ), that"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 hand, it is not every offence committed by a public servant while engaged in 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. " ( 5 ) IN view of this decision and rival submission, it is to be seen whether the orders of the Magistrate are to be set aside or not. ( 6 ) IT is a admitted fact that when the petitioner was I. O. at the relevant point of time; there was complaint in respect of the deceased -- S. Banumati. It is admitted fact that the respondent was an accused facing the allegations under Sec. 302 and 201, IPC. ( 7 ) THE allegations against the petitioner is that the respondent was called to the Police Station and was put in the lock-up till 6 p. m. on that day and subsequently he was released on bail. The whole contention of the respondent is that he had obtained the anticipatory bail. ( 7 ) THE allegations against the petitioner is that the respondent was called to the Police Station and was put in the lock-up till 6 p. m. on that day and subsequently he was released on bail. The whole contention of the respondent is that he had obtained the anticipatory bail. If that was the case he should have immediately produced the same, otherwise the very purpose of obtaining the anticipatory bail would be defeated. The purpose of issuing anticipatory bail is to keep the persons out of the clutches of the police for harassment or for any other unlawful gains. Merely he was put up in the lock-up does not mean that the petitioner immediately resorted to commit the illegal acts. He was making an enquiry and he was investigating the case and already this respondent has made an application to claim insurance and in that direction, he was to produce certain documents. When such are the sequences and circumstances of the case, it cannot be lightly stated that the respondent was called to the police station for illegal gains. After lapse of 6 months, the respondent makes an allegation that the petitioner demanded a sum of Rs. 10,000/- or so in order to give him the benefit in the case. The investigation was going on. In the meanwhile certain developments have also been taken place. Immediately the respondent has gone to the press and informed the same. If really the petitioner had demanded the money, instead of going to the press, the respondent should have approached the higher authorities and appraised of the fact. If this was materialised, he should have given complaint before the Magistrate. There is no reason why he should wait for six months. The fact that he has waited for six months, would indicate that it is counterblast as the petitioner has already filed two cases against the respondent and editors of two newspapers and summons were issued. Now it is to be seen whether the act alleged could have been done while discharging the official duties. At the cost of the repetition, it has to be stated that this respondent was summoned to the police station only for the purpose of investigation in connection with the complaint filed in respect of S. Banumathi. Now it is to be seen whether the act alleged could have been done while discharging the official duties. At the cost of the repetition, it has to be stated that this respondent was summoned to the police station only for the purpose of investigation in connection with the complaint filed in respect of S. Banumathi. This sequence shows that the petitioner has legitimately called the respondent to the police station for the purpose of investigation. In other words, it goes to show that he was discharging his official duties as I. O. The Hon'ble Supreme Court makes it clear in case of Balakrishna Pillai ( AIR 1996 SC 901 ) that protection has to be extended if the Police Officer acted in the course of discharging his official duties. If for everything the Police Officer is hauled up, then it is very difficult for him to go ahead with the investigation. He has to answer for his omission and commissions. As rightly stated every case depends upon the facts and circumstances. Unless it is explicitly shown that he went out of the way to do such act, which was not called for then he has committed the act while not discharging the official duties. When such material is not available, naturally there is nothing wrong to infer that he did the act while discharging the official duties. The another point in favour of the petitioner is Section 170 of the Police Act. Section 170 of the Police Act states that"in any case of alleged offence by the Commissioner, a Magistrate, Police Officer or Reserve Police Officer or other person, or of a wrong alleged to have been done by such Commissioner, Magistrate, Police Officer or Reserve Police Officer or other person by any act done under colour or in excess of any such duty or authority as aforesaid, or wherein it shall appear to the Court that the offence or wrong if committed or done was of the character aforesaid the prosecution or suit shall not be entertained except with the previous sanction of the Government". ( 8 ) IN the present case, the facts are in favour of the petitioner. Mr. ( 8 ) IN the present case, the facts are in favour of the petitioner. Mr. Anand Navalgimath, learned Counsel for the respondent strongly relied upon the decision in the case of H. Shivappa v. Puttaswamy, ILR (1991) Kant 1146 and stated that the petitioner first has to appear before the Magistrate and take up the contentions now that is raised by him. No doubt in this decision it is observed like this. But if the result is not going to be altered, then it is futile exercise before the Magistrate and to take up the same contention wastes some more time. Once it is presumed that the act itself is quite contrary, then it is of no use. All these decisions eloquently speak regarding the actions to be taken in the circumstances of each case. Hence the following order. In the result, the petition is allowed. The impugned order dated 11-4-91 and 26-9-91 are quashed. Petition allowed. --- *** --- .