Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1265 (KAR)

T. C. Bhakthavathsala v. State Of Karnataka

2020-06-29

S.VISHWAJITH SHETTY

body2020
JUDGMENT S.Vishwajith Shetty, J. - Accused no.2 in C.C.No.729/2015 pending before the Court of Additional Civil Judge & JMFC, Harihara, has filed this petition under Section 482 Cr.PC, with a prayer to quash the order dated 05.09.2015 and consequently, to quash the entire proceedings in the said case. 2. Though the matter is listed for admission, with the consent of the learned Counsel for all the parties, the same is taken up for final disposal. 3. Heard the learned Counsel for the petitioner and the learned HCGP who have appeared in person and the learned Counsel for the complainants-respondents 2 to 4 through video conferencing. 4. Petitioner was working as Village Accountant at Malebennur Circle village, Harihara Taluk, Davangere District. Respondents 2 to 4 herein had filed a private complaint in PCR No.23/2014 before the Trial Court as against one V.T.Nagarajappa S/o Hanumanthappa, alleging that the revenue records of the property bearing Sy. No.61/P1 of Komaranahalli village, Malebennur Hobli, measuring 4 acres, which originally belonged to their grandmother Basamma was fraudulently changed in the name of the accused V.T.Nagarajappa and for the said purpose, accused V.T.Nagarajappa had submitted false and fraudulent documents before the revenue authorities and thereby he had managed to get the revenue records of the aforesaid property transferred in his name. The said complaint was referred to the jurisdictional police under Section 156(3) Cr.PC by the Trial Court who inturn had registered FIR in Crime No.94/2014 against V.T.Nagarajappa. After investigation, the police have filed charge sheet against V.T.Nagarajappa and also the petitioner herein for the offences punishable under Sections 420, 467, 470, 471 & 474 IPC, on the allegation that the petitioner herein had colluded with accused no.1 and submitted an erroneous report to the revenue authorities with regard to legal representation of deceased Basamma and thereby aided accused no.1 for change of entries in the revenue records in respect of property bearing Sy. No.61/P1. The Trial Court had taken cognizance of the charge sheet offences on 05.09.2015 and issued NBW to both the accused. The petitioner herein obtained anticipatory bail and thereafterwards appeared before the Trial Court on 01.12.2015. 5. No.61/P1. The Trial Court had taken cognizance of the charge sheet offences on 05.09.2015 and issued NBW to both the accused. The petitioner herein obtained anticipatory bail and thereafterwards appeared before the Trial Court on 01.12.2015. 5. The present petition is filed by the petitioner challenging the order dated 05.09.2015 passed by the Trial Court on the ground that there was no prior sanction as required under Section 197 Cr.PC, and therefore, the Trial Court has erred in taking cognizance of the charge sheet filed by the prosecution and registering a case against him. 6. Learned Counsel appearing for the petitioner would submit that originally the petitioner was not arrayed as accused in the private complaint and no allegations referring to the petitioner are made in the private complaint. The petitioner has discharged his duties in a bona fide manner and the alleged acts, if any, committed by him are done during the course of discharge of his duties, and therefore, without prior sanction under Section 197 Cr.PC from the competent authority, the Trial Court was not justified in taking cognizance of the charge sheet offences as against the petitioner. 7. Learned Counsel appearing for the complainants submitted that the very fact that in the private complaint, the petitioner was not made a party would go to show that they have no mala fide intention to prosecute him. The Investigating Officer during the course of his investigation, having found that the petitioner had colluded with accused no.1 by furnishing erroneous reports to the revenue authorities so as to enable accused no.1 to fraudulently get the revenue records changed in his name, has filed the charge sheet against the petitioner as well. It is further submitted that the acts done by the petitioner cannot be said to have been done during the course of discharge of his official duties, and therefore, no sanction is required for prosecuting the petitioner. 8. Learned HCGP would submit that the sanction, if necessary, can be obtained even at a later stage and it is open for the Trial Court to consider this aspect of the matter during the course of trial. 9. The Apex Court in the case of STATE OF MAHARASHTRA VS DR. 8. Learned HCGP would submit that the sanction, if necessary, can be obtained even at a later stage and it is open for the Trial Court to consider this aspect of the matter during the course of trial. 9. The Apex Court in the case of STATE OF MAHARASHTRA VS DR. BUDHIKOTA SUBBARAO, (1993) 3 SCC 339 , while considering the question, whether sanction for prosecution under Section 197 Cr.PC was necessary, has considered the meaning of the term 'official act' and held as under: "6. Such being the nature of the provision the question is how should the expression, 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', be understood? What does it mean? 'Official' according to dictionary, means pertaining to an office. And official act or official duty means an act or duty done by an officer in his official capacity. In S.B.Saha v. M.S.Kochar, (1979) 4 SCC 177 it was held: (SCC pp. 184-85, para 17) "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 in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words 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 purports to be performed. The right approach to the import of these words 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 of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision." Use of the expression, 'official duty' implies that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. In P.Arulswami v. State of Madras, (1967) 1 SCR 201 this Court after reviewing the authorities right from the days of Federal Court and Privy Council held: " It is not therefore 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. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable." It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dubey v. H.C.Bhari, (1956) AIR SC 44 thus: "[T]he offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty 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 (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty." (emphasis supplied) 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." 10. In the case of GAURI SHANKAR PRASAD VS STATE OF BIHAR & ANR, (2000) 5 SCC 15 , the Apex Court has laid down that in case offences have been committed while discharging his duties by an accused and there is reasonable nexus with the official duties, if the answer is in the affirmative, then sanction is required. In the said case, the accused in his official capacity as Sub-Divisional Magistrate had gone to the place of the complainant for the purpose of removal of encroachment. The complainant had used filthy language as against the accused when he entered chamber of the complainant, and therefore, accused had dragged out the complainant out of his chambers. It was held that the act had a reasonable nexus with the official duty of the appellant, and therefore, no criminal proceedings could be initiated without obtaining sanction. 11. In the case of STATE OF ORISSA & OTHERS VS GANESH CHANDRA JEW, (2004) 8 SCC 40 , the Apex Court has held that the protection under Section 197 Cr.PC is available to a public servant if the alleged act committed is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. The test to determine a reasonable connection between the act complained of and the official duty is that even in case the public servant has exceeded in his duty, if there exists a reasonable connection, it will not deprive him of the protection. The Apex Court while considering the words 'official duty', has held that official duty implies that the act of omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty, where the act or omission performed by the public servant had the reasonable connection with discharge of his duty, it must be held to be official. 12. In SANKARAN MOITRA VS SADHNA DAS & ANOTHER, (2006) 4 SCC 584 , the Apex Court while considering the question whether sanction under Section 197 Cr.PC is a condition precedent though the question as to applicability of Section 197 may arise not necessarily at the inception but even at a subsequent stage, has held that request to postpone the decision on the said question in the said case was not accepted. In paragraph 25 of the said decision, it is observed as under: "25. The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage. It is not for us now to answer the submission of learned counsel for the complainant that this is an eminently fit case for grant of such sanction." 13. The protection given under Section 197 Cr.PC to the public servant is as against vexatious criminal proceedings being instituted against them alleging committal of offences while they are acting or purporting to act as public servants. The protection given under Section 197 Cr.PC to the public servant is as against vexatious criminal proceedings being instituted against them alleging committal of offences while they are acting or purporting to act as public servants. Though the question of sanction could be left open to be considered at a subsequent stage, if the alleged acts complained of prima facie appears to have been done during the course of discharge of the official duty, it would be the bounden duty of the courts to give benefit of the protection under Section 197 Cr.PC to the honest and deserving public servants. Courts cannot take cognizance of offences when the alleged act complained of is reasonably connected with the discharge of the official duty. 14. From the perusal of the records in the present case, it is seen that initially no allegation was made by the complainant against the petitioner. In the private complaint, the petitioner was not even a party. The police, during the course of investigation having found certain material as against the petitioner, have arrayed him as accused no.2 and filed the charge sheet. The incriminating material as against the petitioner in the charge sheet are said to be the reports submitted by him to the revenue authorities which according to the prosecution are erroneous. 15. The petitioner who is a Village Accountant, during the course of discharge of his duties in his official capacity, is required to forward the applications filed by the applicants for change of revenue entries in respect of the immovable properties to the revenue authorities along with his report and the said reports are prepared on the basis of the documents and information furnished by the applicants. Under the circumstances, it cannot be said that the alleged acts committed by the petitioner herein has no reasonable connection or nexus with the discharge of his official duties and even though he has committed a wrong or if he has exceeded in his duty, the protection under Section 197 Cr.PC available to him cannot be denied. The judgments which are produced by the learned Counsel for respondents 2 to 4 along with the statement of objections filed by him, are not applicable to the case on hand as the alleged acts committed by the petitioner have reasonable connection and nexus with the discharge of his official duties. The judgments which are produced by the learned Counsel for respondents 2 to 4 along with the statement of objections filed by him, are not applicable to the case on hand as the alleged acts committed by the petitioner have reasonable connection and nexus with the discharge of his official duties. Therefore, I am of the view that the criminal prosecution launched against the petitioner without obtaining prior sanction from the competent authority is unsustainable in law and for want of sanction, the prosecution must be quashed at this stage. 16. Accordingly, this petition is allowed. The impugned order dated 05.09.2015 passed by the learned JMFC, Harihar, in C.C.No.729/2015 and the entire proceedings in the said case as against the petitioner stands quashed.