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Karnataka High Court · body

2018 DIGILAW 1208 (KAR)

Pradnya W/o Pradeep Patil @ Bhuyekar v. Prashant S/o Subhash Kamat

2018-12-15

MOHAMMAD NAWAZ

body2018
ORDER : 1. This Revision Petition is filed by the complainant in PCR No. NIL/2017 dated 21.06.2017 on the file of the Court of JMFC-II, Belagavi at Belagavi, questioning the correctness and legality of the order dated 21.06.2017, whereby the learned Magistrate returned the complaint to the complainant with a direction to re-present the same after obtaining sanction, in order to proceed against accused Nos. 4 and 5. 2. I have heard the learned counsel for the petitioner and the learned counsels appearing for the respondent Nos. 1, 2, 4 and 5. Respondent No. 3, though served is unrepresented. 3. The brief facts leading to the filing of this Revision Petition are that the petitioner/ complainant presented a complaint under Section 200 of Cr.P.C. against the accused/ respondents alleging of fences punishable under Sections 463, 464, 465, 470 and 471 read with Section 34 of I.P.C. It is alleged therein that the complainant is the absolute owner of property bearing R.S. No. 180/1 by virtue of a registered sale-deed dated 16.09.2013. Accused No. 2 executed consent deed dated 10.11.2014 in favour of the complainant duly registered before the Sub-Registrar, Belagavi, thereby admitting the execution and attestation of the sale-deed and also admitting the absolute title of the complainant over the property. However, accused Nos. 1 and 2 started making false attempts to claim over the same and along with their henchmen are trying to make forcible entry to the property of the complainant. Further that, accused Nos. 1 and 2 in collusion with accused Nos. 3 to 5 had fraudulently obtained 11-E sketch relating to property bearing R.S. No. 180/1 measuring 2 acres 21 guntas situated at Belagavi from the office of A.D.L.R. Belagavi. The complainant applied for the certified copies of all the documents relating to 11-E sketch and she was shocked to find that her signatures were forged on all the said documents. Accused Nos. 1 to 3 in collusion with each other have created documents styled as mutual partition deed dated 17.01.2017 showing that one portion has been allotted to the complainant and the other is allotted to accused No. 2, though the complainant has never executed the said document. Further, though the complainant had never appeared before accused Nos. Accused Nos. 1 to 3 in collusion with each other have created documents styled as mutual partition deed dated 17.01.2017 showing that one portion has been allotted to the complainant and the other is allotted to accused No. 2, though the complainant has never executed the said document. Further, though the complainant had never appeared before accused Nos. 4 and 5 and never signed any document and not given any statement before them, however, perusal of the certified copy of the statement dated 26.01.2017 shows that the complainant appeared before accused No. 5 and gave a statement. The nature of the document i.e. Notice in Form No. 11-C, Hissa Form No. 4, 11-E sketch and statement clearly discloses that accused Nos. 1 to 3 have created and fabricated the said documents in active collusion with accused Nos. 4 and 5 and hence the accused persons joining hands in glove with each other with an intention to cheat her and to make a false claim over her absolute property have created documents forging her signatures and therefore, the accused are liable to be prosecuted for the offences punishable under Sections 463, 464, 465, 470, 471 read with Section 34 of I.P.C. 4. On presentation of the aforesaid complaint, the learned Magistrate after observing that accused Nos. 4 and 5 are the public servants and before proceeding against them, it requires sanction and further observing that accused Nos. 4 and 5 are the Surveyors and in order to proceed against them the complainant has not obtained sanction from the Government and accordingly placing reliance on a decision of this Court reported in M.K. Aiyappa vs. State by Lokayukta Police, Bangalore, 2013 (5) Kar. L.J. 325 passed an order directing the complainant to obtain sanction from the Government in order to proceed with the matter against accused Nos. 4 and 5 and returned the complaint to the complainant. 5. It is the contention of the learned counsel Mr. Srinand A. Pachapure appearing for the petitioner/complainant that the decision reported in the case of M.K. Aiyappa (supra) is not applicable to the case on hand. He submits that the complaint is not filed alleging of fences under the Prevention of Corruption Act and therefore, at the time of filing complaint before the Magistrate under Section 200 of Cr.P.C. there is no such requirement to obtain any sanction from the competent authority. He submits that the complaint is not filed alleging of fences under the Prevention of Corruption Act and therefore, at the time of filing complaint before the Magistrate under Section 200 of Cr.P.C. there is no such requirement to obtain any sanction from the competent authority. He submits that the of fences committed as alleged in the complaint by accused Nos. 4 and 5 cannot be said to be done under the colour of their duty and therefore, submits that no sanction is necessary even under Section 197 of Cr.P.C. at the time of filing the complaint. He further submits that even otherwise the Magistrate has committed a grave error in returning the complaint as against all the accused persons though accused Nos. 1 to 3 are not the public servants and accordingly he seeks to allow the petition. 6. In support of the contentions raised by the learned counsel for the petitioner he has placed reliance on the following judgments: (i) Parkash Singh Badal and Another vs. State of Punjab and Others, (2007) 1 SCC 1 (ii) State of Uttar Pradesh vs. Paras Nath Singh, (2009) 6 SCC 372 (iii) Anil Kumar and Others vs. M.K. Aiyappa and Another, (2013) 10 SCC 705 (iv) Manju Surana vs. Sunil Arora and Others, 2018 (5) SCC 557 7. Per contra, the learned counsels appearing for respondent Nos. 1 2, 4 and 5 contended that there is no truth in the allegations made in the complaint and the complaint is filed on account of a civil dispute pending between the complainant and respondent Nos. 1 to 3. It is submitted that admittedly respondent Nos. 4 and 5 are public servants, namely, accused No. 4 is working as case worker and accused No. 5 is working as a Surveyor in the Office of A.D.L.R. Belagavi. It is false to allege that they have colluded with the complainant and therefore, even if any act is committed by the said accused, that cannot be said to be in collusion with the complainant and on the other hand, they have discharged their duty as public servants and therefore, sanction is necessary under law. They submit that there is no illegality committed in the order passed by the learned Magistrate and accordingly seeks to dismiss the Revision Petition. 8. They submit that there is no illegality committed in the order passed by the learned Magistrate and accordingly seeks to dismiss the Revision Petition. 8. In support of the contention, the learned counsels appearing for the respondents placed reliance on the following judgments: (i) Matajog Dobey vs. H.C. Bhari, AIR 1956 SC 44 (ii) Rakesh Kumar Mishra vs. State of Bihar and Others, (2006) 1 SCC (Cri) 432 (iii) Sankaran Moitra vs. Sadhna Das and Another, (2006) 2 SCC (Cri) 358 (iv) M.K. Aiyappa vs. State by Lokayukta Police, Bangalore and Others, 2013(5) KLJ 325 (v) Rajib Ranjan and Others vs. R. Vijaykumar, (2015)1 SCC 513 (vi) D.T. Virupakshappa vs. C. Subash, 2015 (2) GLH 359 (vii) International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and Others, (2016) 1 SCC 348 (viii) Manorama Tiwari and Others vs. Surendra Nath Rai, (2016) 1 SCC 594 (ix) Unreported decision in Crl. Pet. Nos. 200161 and 200091 of 2018 decided on 25.07.2018, Santosh Vyankatesh Kshirasagar and Others vs. State of Karnataka and Others 9. On perusal of the reasons assigned by the learned Magistrate in the impugned order, it is seen that, the learned Magistrate after observing that accused Nos. 4 and 5 are public servants and therefore holding that, in order to proceed against them sanction is necessary, returned the complaint directing the complainant to obtain necessary sanction as against accused Nos. 4 and 5. The learned Magistrate has come to the said conclusion on the basis of the decision rendered in the case of M.K. Aiyappa vs. State by Lokayukta Police, Bangalore and Others (supra), wherein it is held that in a case of complaint against a public servant there is no short cut method in law, the complainant must first seek sanction from the Government before lodging a private complaint against the public servant. 10. In M.K. Aiyappa’s case (Supra) the offences alleged against the public servant was under Sections 8, 13(1)(c), 13(1)(d), 13(1)(e) and 13(2) and 12 of the Prevention of Corruption Act, 1988 (for short, P.C. Act) along with other Sections under I.P.C. i.e. under Sections 406, 409, 420, 426, 463, 465, 468, 471 and 474 read with Section 120-B and 149 of I.P.C. 11. In the case referred supra, the learned Magistrate referred the matter for investigation under Section 156(3) of Cr.P.C. This Court held that the requirement of a sanction order cannot be dispensed with even in respect of a private complaint filed by a person against a public servant, alleging offences punishable under P.C. Act said to have been committed while discharging duties as a public servant. 12. It is relevant to state that a challenge was made to the decision rendered by this Court in the case of M.K. Aiyappa (supra) before the Hon’ble Supreme Court and the Hon’ble Supreme Court in a judgment rendered in Anil Kumar vs. Aiyappa, (2013) 10 SCC 705 held that sanction under Section 19(1) of the P.C. Act is a pre-condition for ordering investigation against a public servant even at a pre-cognizance stage and held that such reference is not valid and the investigation under Section 156(3) of Cr.P.C. cannot be ordered without previous sanction under Section 19(1) of P.C. Act. 13. The learned counsel appearing for the respondents placing reliance on the decision rendered by the Hon’ble Supreme Court in the case of Matajog Dobey vs. H.C. Bhari, AIR 1956 SC 44 would contend that there should be safeguard for the public servants from harassment during discharge of their duties and without previous sanction cognizance cannot be taken in view of Section 197 of Cr.P.C. and he submits that in the present case accused Nos. 4 and 5 were admittedly public servants, hence, sanction was necessary as rightly observed by the learned Magistrate since even assuming that they have committed some act but the same was while discharging their official duty. 14. However, the above decision relied upon by the learned counsel may not be applicable to the present case since the facts of the said case are entirely different. Even otherwise the Hon’ble Apex Court at Para 17 of the said decision has observed as under: “17. Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in section 197 of the Code “any of fence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.” But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under section 197, unless the act complained of is an offence, the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. In Hori Ram Singh vs. The Crown, (1939) SCR 159, Sulaiman, J. observes: “The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction.” 15. In the case of International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and Others vs. Nimra Cerglass Technics Private Limited and Another, (2016) 1 SCC 348 , it is a case wherein initially Investigating Officer submitted a final report stating that the dispute is purely of civil in nature and no offence was made out and on Protest Petition filed by the complainant, Magistrate took cognizance for the offences punishable under Sections 419 and 420 read with Section 34 of I.P.C. and aggrieved by the summons issued, the accused therein challenged the same under Section 482 of Cr.P.C. and dismissal of the said petition was challenged before the Hon’ble Apex Court. The Hon’ble Apex Court after considering the role of the accused therein held that they were acting in their official capacity and they neither acted in their personal capacity and accordingly held that previous sanction as mandated under Section 197 of Cr.P.C. must have been obtained before proceeding against them as the act was only in discharge of their official duties. Such order was on the basis of the averments made in the complaint and further holding that the essential ingredients of dishonest intention was not made out. 16. The Hon’ble Supreme Court in the case of D.T. Virupakshappa vs. C. Subash, 2015 (12) SCC 231 while examining the action of the trial Court taking cognizance of the alleged offence on a private complaint filed against the public servants without sanction from the State Government, held that, on facts the whole allegations and acts committed by the public servants who are the police officials, reasonably connected with the performance of official duty. Therefore, held that the Magistrate could not have taken cognizance of the case without the previous sanction of the State Government. The decision rendered in the case of Om Prakash and Others vs. State of Jharkhand, (2012) 12 SCC 72 , wherein Para 41 of the said judgment was quoted which is as under: “41. The upshot of this discussion is that whether sanction is necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the Police Officer or public servant was acting in performance of his official duty and is entitled to protection given under Section 197 of the Code. It is not possible for us to hold that in such a case, the Court cannot look into any documents produced by the accused or the public servant concerned at the inception. The nature of the complaint may have to be kept in mind. It is not possible for us to hold that in such a case, the Court cannot look into any documents produced by the accused or the public servant concerned at the inception. The nature of the complaint may have to be kept in mind. It must be remembered that previous sanction is a precondition for taking cognizance of the offence and, therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea......” Further, at Para 7 of the judgment, the Hon’ble Apex Court also referred to Para 7 of the decision rendered in the case of State of Orissa through Kumar Raghvendra Singh and Others vs. Ganesh Chandra Jew, (2004) 8 SCC 40 which reads as under: “7. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this Section is available if the act falls within the scope and range of his official duty.” (Emphasis supplied) 17. At Para 8 of D.T. Virupakshappa’s case (Supra) Para 32 of the judgment in the case of Om Prakash (Supra) is referred, which reads as under: “32. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his of f ice as to be inseparable from it (K. Satwant Singh). The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection (Ganesh Chandra Jew). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it. If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the Police personnel in this case as a cloak for killing the deceased in cold blood.” (Emphasis supplied) 18. In the case of Rakesh Kumar Mishra vs. State of Bihar and Others, (2006) 1 SCC (Cri) 432, while reinstituting the applicability of Section 197 of Cr.P.C. it was held that the protection given to public servants under Section 197 of Cr.P.C. is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act and therefore the concept of Section 197 of Cr.P.C. does not get immediately attracted on institution of the complaint case. Considering the facts of the said case, it was held that even if the public servant acted in excess of his duty, if there exists the said reasonable connection, the excess will not deprive him of the protection. Further that the Court cannot take cognizance of the complaint against public servant in respect of an offence alleged to have been committed in discharge of official duty unless sanction is obtained from the appropriate authority. However, the concept of Section 197 of Cr.P.C. does not get immediately attracted on institution of the complaint case. On the other hand, it has to be seen as to whether there is a reasonable connection between the act done and the official duty. 19. In the case of Sankaran Moitra vs. Sadhna Das and Another, (2006) 2 SCC (Cri) 358, the Hon’ble Supreme Court held that though the question regarding sanction may arise necessarily not at the inception, but even under subsequent stage. However, the prosecution hit by that provision cannot be launched without the contemplated sanction. In the facts of the said case, it was held that such sanction was necessary. 20. However, the prosecution hit by that provision cannot be launched without the contemplated sanction. In the facts of the said case, it was held that such sanction was necessary. 20. In the case of Rajib Ranjan and Others vs. R. Vijaykumar, (2015) 1 SCC 513 , it was held that such sanction is necessary if the offence alleged against the public servant is committed while acting or purporting to act in the discharge of his official duties. It was held therein 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 Cr.P.C. will not be attracted. Para 16 of the aforesaid judgment reads as under: “16. This principle was explained in some more detail in Raghunath Anant Govilkar vs. State of Maharashtra, which was decided by this Court on 08.02.2008 in SLP (Crl.) No. 5453 of 2007, in the following manner: “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 vs. State of Bombay and Amrik Singh vs. State of Pepsu was as follows: (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 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 Sections 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. As far as the offence of criminal conspiracy punishable under Sections 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.” 21. In the case of Manorama Tiwari and Others vs. Surendra Nath Rai, (2016) 1 SCC 594 , the Hon’ble Apex Court considering the role of the accused who were Medical Officers in Government hospital against whom a complaint was filed alleging negligence on the part of the accused in causing the death while conducting surgery, the Hon’ble Apex Court considering the facts of the said case held that it is a clear case where appellants were discharging their public duties and therefore, criminal prosecution was not maintainable without sanction from the State Government. 22. This Court in the case of Santosh Vyankatesh Kshirasagar and Others vs. State of Karnataka and Others in Crl. Pet. Nos. 200161 and 200091 of 2018 dated 25.07.2018 at Paras 14 and 15 has held as under: “14. Section 197 of Cr.P.C. of course, mandates obtaining of sanction from the competent authority, before the Magistrate or any Court takes cognizance of any offence of a public servant. Section 197 says that, in case of a person who is employed by the State Government in connection with the affairs of the State, in such an eventuality, no Court shall take cognizance of the case, the of fence alleged to have been committed by any such person while discharging his duties as public servant without there being a sanction from the competent authority. Therefore, it is a clear mandate of the above said provisions. 15. This Court should not be misunderstood that, any of the cases under Section 304-A of IPC of the case where a public servant are involved, the sanction is an absolute requirement. Therefore, it is a clear mandate of the above said provisions. 15. This Court should not be misunderstood that, any of the cases under Section 304-A of IPC of the case where a public servant are involved, the sanction is an absolute requirement. The Magistrate or the Court even after taking cognizance also, it can look into whether sanction is required in such a case to prosecute the accused, or not by applying the specific provisions, the Court has to draw an inference on the material on record, that the accused is a public servant and while discharging his duties as a public servant he has committed the of fence and the said act or the of fence is referable to his discharge of duties. Eventually, the sanction order need not be insisted, if the offence alleged is nowhere connected with the discharge of the duties as public servant, then on the basis of factual aspects of the case, the Court can take appropriate decision, whether the sanction is required in such a case or not.” 23. Learned counsel for the petitioner contends placing reliance on the decision in Prakash Singh Badal vs. State of Punjab, (2007) 1 SCC 1 wherein at Para 38, the Hon’ble Apex Court held that 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. 24. It is relevant to note that the Hon’ble Apex Court in the case of Manju Surana vs. Sunil Arora and Others, (2018) 5 SCC 557 , while considering the alleged offences punishable under Sections 7 and 13 of the Prevention of Corruption Act, 1988 and Sections 120B, 420, 467, 468 and 471 of Indian Penal code wherein the special Judge closed a complaint on account of the fact that respondents were not either public servants or have remained as public servants and no prior sanction had been granted by the competent authority and while considering the question as to whether prior sanction for prosecution qua allegation of corruption in respect of public servants was required before setting in motion investigative process, has held at Para 34 as under: “34. The catena of judgments on the issue as to the scope and power of direction by a Magistrate under Chapters 12 and 14 is well established. Thus, the question would be whether in cases of the P.C. Act, a different import has to be read qua the power to be exercised under Section 156(3) of the code of Criminal Procedure, i.e. can it be said that on account of Section 19(1) of the P.C. Act, the scope of inquiry under Section 156(3) of the code of Criminal Procedure can be said to be one of taking ‘cognizance’ thereby requiring the prior sanction in case of a public servant? It is trite to say that prior sanction to prosecute a public servant for of fences under the P.C. Act is a provision contained under Chapter 14 of the Code of Criminal Procedure. Thus, whether such a purport can be imported into Chapter 12 of the code of Criminal Procedure while directing an investigation under Section 156(3) of the Code of Criminal Procedure, merely because a public servant would be involved, would beg an answer.” Even in the said case, the Special Judge closed the complaint on the ground that no prior sanction was granted by the competent Authority under Section 19 of the P.C. Act read with Section 197 of the Code of Criminal Procedure by placing reliance on the judgment rendered in Anil Kumar vs. Aiyappa (Supra). The Hon’ble Supreme Court considering the controversy, observed that the matter requires to be settled by a lager bench and accordingly, the matter was referred to a larger Bench. 25. In the instant case, admittedly, though accused Nos. 4 and 5 are working as public servants, however, the offences alleged is not under the Prevention of Corruption Act. On the other hand it was only under the provisions of IPC. However, the learned Magistrate placing reliance on the decision of this Court in M.K. Ayyapa vs. State by Lokayukta Police (Supra) wherein this Court has observed that the requirement of sanction order cannot be dispensed with even in respect of a private complaint filed by a private person against a public servant, directed the complainant to obtain sanction from the Government in order to proceed against accused Nos. 4 and 5 and thereafter to re-present the complaint after obtaining sanction. 26. 4 and 5 and thereafter to re-present the complaint after obtaining sanction. 26. As noted in the decision relied upon by the learned Magistrate, it was held that the requirement of sanction order cannot be dispensed with even in respect of a private complaint filed by a person against a public servant alleging of fences punishable under the Prevention of Corruption Act stated to have been committed while discharging the duties as a public servant. The question as to whether sanction is necessary in such an event before referring the matter for investigation under Section 156(3) of the Cr.P.C. has been now referred to a larger bench by the Hon’ble Apex Court. 27. However, in the instant case, the complaint al legations are only in respect of the offences under IPC. The question is as to whether sanction was necessary under Section 197 of the code at the time of presentation of complaint against a public servant. Section 197(1) of Cr.P.C. reads as under: “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.” 28. The provisions under Section 197 of Cr.P.C. makes it clear that if any offence is alleged to have been committed by a public servant, they cannot be removed from the office except by an order with the sanction of the Government, the Court is precluded from taking cognizance of such offence except with the previous sanction of the competent authority. 29. In State of Uttar Pradesh vs. Paras Nath Singh, (2009) 6 SCC 372 , the Hon’ble Apex Court in paragraph 6 at Page 377 has observed as under: “21. That apart, the contention of the respondent that for of fences under Sections 406 and 409 red with Section 120-B IPC sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. That apart, the contention of the respondent that for of fences under Sections 406 and 409 red with Section 120-B IPC sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the legal position in Shreekantiah Ramayya Munipalli vs. State of Bombay and also in Amrik Singh vs. 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 vs. State of Bihar as follows: “66.....As far as the of fence 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 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.” 22. Above views are reiterated in State of Kerala vs. B. Padmanabhan Nair. Both Amrik Singh and S.R. Munipalli were noted in that case. Sections 467, 468 and 471 IPC relate to forgery of valuable security, will, etc. forgery for the purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code, is therefore no bar.” 30. In view of the above pronouncements of the Hon’ble Apex Court, the order passed by the learned Magistrate returning the complaint with a direction to obtain sanction from the Government in order to proceed against accused Nos. 4 and 5 placing reliance on the decisions reported in M.K. Aiyappa’s (Supra) case cannot be said to be legal and proper. The learned Magistrate has not considered as to whether or not the act committed by accused Nos. 4 and 5 placing reliance on the decisions reported in M.K. Aiyappa’s (Supra) case cannot be said to be legal and proper. The learned Magistrate has not considered as to whether or not the act committed by accused Nos. 4 and 5 was in the course of and while discharging their official duty and therefore whether sanction was necessary under Section 197 of Cr.P.C. Even otherwise, admittedly, accused Nos. 1 to 3 are not the public servants. However, there is no reason as to why the complaint was not entertained and as to why the complaint was returned insofar as the other accused are concerned. In the above background and in view of the discussions made as above, I am of the view that the impugned order passed by the learned Magistrate is not sustainable in the eye of law. Accordingly, I pass the following order. 31. The Criminal Revision Petition is allowed. 32. The Order dated 21.06.2017 passed by the Court of JMFC-II, Belagavi, in PCR No. Nil of 2017 is hereby set aside. The matter is remanded back to the Court below for considering the complaint afresh. The Court below shall proceed in accordance with law after restoring the complaint on its file.