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2020 DIGILAW 405 (KAR)

Neminath v. State Of Karnataka And Another

2020-02-12

SURAJ GOVINDARAJ

body2020
JUDGMENT 1. The petitioners are before this court seeking for quashing of the proceedings in C.C.No.883/2018 pending on the file of Principal Civil Judge and JMFC, Raibag for the offences punishable under Section 466, 467, 468, 471, 473, 201 r/w 34 of IPC so far as it relates to the petitioners who are accused Nos.4, 5 and 9 therein. 2. The brief facts of the case are that, one Shivanand S/o Parappa Sagar, the Taluka Executive Magistrate of Raibag lodged a complaint before the respondent police on 04.10.2013. On the basis of the said complaint, a case was registered and thereafter as per the Government notification dated 13.01.2015, the matter was referred to the CID, Bangalore for investigation. Accordingly, the Police Inspector, CID conducted the investigation and filed the charge-sheet against the accused Nos.1 to 13 for the aforesaid offences. 3. The petitioners are arraigned as accused Nos.4, 5 and 9 in the charge-sheet. The allegations made in the complaint are that accused No.1 was working as an agent in Tahasildars Office and used to collect the amount from the public while they prepared various types of documents in order to pay the stamp duty and by filling up challans by paying the prescribed fees. It is alleged that accused No.1 instead of depositing the said amount to the State was collecting false challans by using false stamps and thereby misappropriated a sum of Rs.13,90,000/- for his personal use. 4. The petitioner has stated that he has not at all committed any of the alleged offence. His name does not find place in the FIR or in the complaint. The material collected by the Investigating Officer discloses the commission of the alleged offence by accused No.1. There is inordinate delay of 7 years in registering the FIR. There is no nexus between the petitioner and the alleged crime. But the police are visiting his house often in his absence, only to harass him. Therefore the proceedings initiated against him are liable to be quashed. 5. Heard the learned counsel for the petitioner and the learned HCGP. 6. The learned counsel for the petitioner reiterating the grounds taken in the petition submitted that name of the petitioner does not find place in the FIR nor in the complaint and during the course of investigation, no material is collected to show the involvement of the petitioner in the alleged crime. 6. The learned counsel for the petitioner reiterating the grounds taken in the petition submitted that name of the petitioner does not find place in the FIR nor in the complaint and during the course of investigation, no material is collected to show the involvement of the petitioner in the alleged crime. Therefore, the order of the learned magistrate taking cognizance is not sustainable in law and therefore, continuation of the proceedings against the petitioner amounts to abuse of process of law. 7. Apart from the above, Sri. Shivaraj P. Mudhol appearing for the petitioners would contend that he has filed I.A.No.2/2019 for amendment of the prayer in the above petition contenting that prior sanction under Section 197 of the Cr.P.C. ought to have been obtained. The said amendment application is pending consideration. 8. The amendment application as filed is not seriously objected by learned HCGP. Hence, the amendment application is allowed. The petitioner is directed to do the needful in regard to the same. 9. Basing on the above amendment, Sri. Shivaraj P. Mudhol contends that the offences as alleged against the petitioners are said to have been performed during discharge of their official duties. The allegations made against the petitioners are that they have caused loss to the exchequer during discharge of their official duties. All allegations made against the petitioners are within the ambit of discharge of their functions as public servants. In view of the same, it is submitted that on such allegations without prior sanction no complaint could have been registered under Section 197 of Cr.P.C. 10. Per contra, learned HCGP submits that this aspect no longer res-integra, the same has been dealt with by Honble Apex Court in the case of Panjab State Warehousing Corp. v. Bhushan Chander reported in 2016 (13) SCC 44 , wherein, the Honble Apex Court has dealt with the requirements or otherwise of prior sanction as regards complaint filed against Government servant under Section 409, 467, 468, 471 and 120B. The offences alleged against the petitioners herein are under 466, 467, 468, 471, 473 and 201 r/w 34 of IPC. Hence, the reasoning of the Honble Apex court in the above decision would also apply to the present case. Para 22 of the said decision would be relevant, the same is reproduced for reference '22. The offences alleged against the petitioners herein are under 466, 467, 468, 471, 473 and 201 r/w 34 of IPC. Hence, the reasoning of the Honble Apex court in the above decision would also apply to the present case. Para 22 of the said decision would be relevant, the same is reproduced for reference '22. A survey of the precedents makes it absolutely clear that there has to be reasonable connection between the omission or commission and the discharge of official duty or the act committed was under the colour of the office held by the official. If the acts omission or commission is totally alien to the discharge of the official duty, question of invoking Section 197 CrPC does not arise. We have already reproduced few passages from the impugned order from which it is discernible that to arrive at the said conclusion the learned Single Judge has placed reliance on the authority in B. Sahas. The conclusion is based on the assumption that the allegation is that while being a public servant, the alleged criminal breach of trust was committed while he was in public service. Perhaps the learned Judge has kept in his mind some kind of concept relating to dereliction of duty. The issue was basically entrustment and missing of the entrusted items. There is no dispute that the prosecution had to prove the case. But the public servant cannot put forth a plea that he was doing the whole act as a public servant. Therefore, it is extremely difficult to appreciate the reasoning of the High Court. As is noticeable he has observed that under normal circumstances the offences under Sections 467, 468 and 471, IPC may be of such nature that obtaining of sanction under Section 197, Cr.PC is not necessary but when the said offences are interlinked with an offence under Section 409, IPC sanction under Section 197 for launching the prosecution for the offence under Section 409 is a condition precedent. The approach and the analysis are absolutely fallacious. We are afraid, though the High Court has referred to all the relevant decisions in the field, yet, it has erroneously applied the principle in an absolute fallacious manner. No official can put forth a claim that breach of trust is connected with his official duty. The approach and the analysis are absolutely fallacious. We are afraid, though the High Court has referred to all the relevant decisions in the field, yet, it has erroneously applied the principle in an absolute fallacious manner. No official can put forth a claim that breach of trust is connected with his official duty. Be it noted the three-Judge Bench in B. Saha (supra) has distinguished in Shreekantiah Ramayya Munipalli ( AIR 1955 SC 287 ) (supra) keeping in view the facts of the case. It had also treated the ratio in Amrik Singh ( AIR 1955 SC 309 ) (supra) to be applied, as has been stated by Chandrasekhara Aiyar, J. in the Constitution Bench in Matajog Dube ( AIR 1956 SC 44 ) (supra) which we have reproduced hereinbefore. The three-Judge Bench in B. Saha (supra) applied the test laid down in Gills case ( AIR 1948 PC 128 ) wherein Lord Simonds has reiterated that the test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office.' (Emphasis supplied) The Apex Court has very categorically held that no official can put-forth a claim that breach of trust or other criminal offences are connected with him/her official duty, if the offence has been committed which is punishable under the IPC without reference to public functions of the official, such official cannot therefore, contend that prior sanction under Section 197 is required. 11. In view of the above, though it is contended that the allegation made against the petitioners is only as regards actions performed by them during the course of discharging the official function, the said contention would not hold any water for the reason that any Government official during the course of discharging his official functions cannot involve himself/herself in any criminal activity or commit a criminal offence and take shelter under Section 197 of Cr.P.C. 12. The learned HCGP submits that all the other contention were raised by the petitioners in Crl.P.No.10350/2019 and this court has already rejected those contentions by order dated 26.11.2019. In view thereof, it would serve no to purpose to refer to the very same contentions as regards the very same crime which has already been rejected. 13. The learned HCGP submits that all the other contention were raised by the petitioners in Crl.P.No.10350/2019 and this court has already rejected those contentions by order dated 26.11.2019. In view thereof, it would serve no to purpose to refer to the very same contentions as regards the very same crime which has already been rejected. 13. In view of the above, the sole ground now contended and existing by the petitioners is that prior sanction in terms of Section 197 of Cr.P.C is to be taken would not hold any water. In view of the above reasons, petition as filed is rejected.