Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 899 (KAR)

C. Srinivas v. State of Karnataka

2023-07-19

S.RACHAIAH

body2023
JUDGMENT 1. This Criminal Revision Petition is filed by the petitioner, being aggrieved by the judgment of conviction and order of sentence dtd. 21/1/2020 in C.C.No.337/2011 on the file of the Court of the Principal Civil Judge and J.M.F.C., Srinivasapura, and its confirmation judgment and order dtd. 11/4/2022 in Crl.A.No.15/2020 on the file of the Court of the I Additional District and Sessions Judge, Kolar, has filed this revision petition seeking to set aside the concurrent findings recorded by the Courts below, wherein the petitioner / accused is convicted for the offences punishable under Ss. 406, 408, 409 and 420 of Indian Penal Code (for short 'IPC'). 2. The petitioner is the accused before the Trial Court and appellant before the Appellate Court. Brief facts of the case are: 3. It is the case of the prosecution that, the petitioner was working as Executive Officer of Taluk Panchayath, Srinivasapura from 26/3/2010 to 28/9/2010. It is alleged that, he has misused or misappropriated a sum of Rs.13, 41, 000.00 by drawing the said amount through self- cheque bearing No.207941 dtd. 17/7/2010 at Pragathi Gramin Bank, Srinivasapura Branch, from Bank Account No.25070. As such, a complaint came to be lodged by PW.2. On the basis of the said complaint, the jurisdictional police have registered a case and conducted investigation and submitted charge sheet for the offences stated supra. 4. The prosecution, in order to prove its case, has examined 16 witnesses namely PWs.1 to 16 and got marked Ex.P1 to Ex.P39. On the other hand, the accused / petitioner examined himself as DW.1 and also got marked Exhibits D1 to D11. The Trial Court after appreciating the oral and documentary evidence on record, convicted the petitioner for the offences stated supra. On appeal being filed, the Appellate Court after re-appreciating oral and documentary evidence on record, dismissed the appeal by confirming the judgment of conviction passed by the Trial Court. Being aggrieved by the same, the petitioner has preferred this revision petition seeking to set aside the concurrent findings. 5. Heard Shri Sunil Kumar.S., learned counsel for the petitioner and Shri Rahul Rai.K., learned High Court Government Pleader for the respondent / State. 6. It is the submission of the learned counsel for the petitioner that, the concurrent findings recorded for conviction by the Courts below are perverse, erroneous and opposed to law and facts. 5. Heard Shri Sunil Kumar.S., learned counsel for the petitioner and Shri Rahul Rai.K., learned High Court Government Pleader for the respondent / State. 6. It is the submission of the learned counsel for the petitioner that, the concurrent findings recorded for conviction by the Courts below are perverse, erroneous and opposed to law and facts. Hence, the conviction recorded by the Courts below is required to be set aside. 7. Learned counsel for the petitioner has canvassed his arguments mainly on two grounds, firstly, the prosecution has failed to obtain sanction as required under Sec. 197 of the Code of Criminal Procedure (for short "Cr.P.C.") before filing the charge sheet or taking cognizance of the case whichever is earlier. Secondly, he submitted that, in the departmental enquiry on the same set of allegations and evidence of same witnesses, the petitioner got exonerated. Hence, the petitioner is entitled for acquittal. To substantiate his contention, he relied on the judgments of the Hon'ble Supreme Court in the cases of A.SRINIVASULU v. THE STATE, REP. BY THE INSPECTOR OF POLICE, 2023 Live Law (SC) 485. INDRA DEVI v. STATE OF RAJASTHAN & Another, (2021) 8 SCC 768 . and D.DEVARAJA v. OWAIS SABEER HUSSAIN, (2020) 7 SCC 695 . . Making such submissions, learned counsel for the petitioner prays to allow the petition. 8. Per contra learned High Court Government Pleader (for short "HCGP") justified the concurrent findings of conviction recorded by the Courts below and submits that, the guidelines issued by the Government of Karnataka in respect of drawing of the amount by the Government officials have been violated by the petitioner. Even though he was not supposed to draw the amount by using the self-cheque, the petitioner misappropriated the amount which was drawn by him and the petitioner had failed to account for the same. The Trial Court and the Appellate Court, after appreciating the oral and documentary evidence on record, concluded and concurrently held that, the said sum was misappropriated and the petitioner was found guilty of the offences stated supra. Such being the fact, interference with the well reasoned order passed by the Courts below may not be appropriate and the Revisional Court being a Court of law, cannot go beyond its scope. Having submitted thus, learned HCGP prays to dismiss the petition. 9. Such being the fact, interference with the well reasoned order passed by the Courts below may not be appropriate and the Revisional Court being a Court of law, cannot go beyond its scope. Having submitted thus, learned HCGP prays to dismiss the petition. 9. Having heard the rival contentions urged by the learned counsels for the respective parties and also perused the concurrent findings recorded by the Courts below and also the documents available on record, it appears that, the Courts below erred in appreciating the documents produced by the petitioner, which are marked as Exhibits P1 to P11. If it were to be appreciated properly by the Courts below, the conviction would not have been recorded against the petitioner. 10. To answer the points raised by the learned counsel for the petitioner, on perusal of the entire documents and also the evidence of the witnesses, it appears that, the Investigating Officer has not obtained permission or sanction from the competent authority to register a case against the petitioner. Since the petitioner is a public servant and by exercising the official capacity, stated to have drawn the amount on self cheque and misused or misappropriated the said amount. 11. Before adverting to the merit of the case, it is necessary to deal with the legal aspect on this point. Hence, it is relevant to refer the provision under Sec. 197 of the Code of Criminal Procedure, which reads thus: "197. Prosecution of Judges and public servants. 11. Before adverting to the merit of the case, it is necessary to deal with the legal aspect on this point. Hence, it is relevant to refer the provision under Sec. 197 of the Code of Criminal Procedure, which reads thus: "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 save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 - (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted. Explanation.- For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under Sec. 166A, Sec. 166B, Sec. 354, Sec. 354A, Sec. 354B, Sec. 354C, Sec. 354D, Sec. 370, Sec. 375, Sec. 376, [sec. 376A, Sec. 376AB, Sec. 376C, Sec. 376D, Sec. 376DA, Sec. 376DB] or Sec. 509 of the Indian Penal Code (45 of 1860).] (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-sec. (3) The State Government may, by notification, direct that the provisions of sub-sec. (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that subsec. will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted. (3A) Notwithstanding anything contained in sub-sec. (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held." 12. On reading of the above said provision, it is clear that, before taking cognizance of the offence, there should be sanction which requires to be obtained by the Investigating Officer at the time of filing the final report. 13. On reading of the above said provision, it is clear that, before taking cognizance of the offence, there should be sanction which requires to be obtained by the Investigating Officer at the time of filing the final report. 13. Now, it is relevant to refer the dictum of the Hon'ble Supreme Court in the case of INDRA DEVI referred to supra, the Hon'ble Supreme Court, in para Nos.4 and 10, held as under: "4. The records placed before us do not reflect how Respondent No.2 was exactly roped in, but suffice to say, Respondent No.2 moved an application under Sec. 197 of the CrPC before the trial court stating that he was a public servant and what he did in respect of allotment of lease, that was executed in favour of Megharam, was done during the course of his official duty and thus he was entitled to protection under the aforementioned provision. He also sought to assail the chargesheet as the same had been filed without obtaining sanction of the competent authority under Sec. 197 of the CrPC. 10. We have given our thought to the submissions of learned counsel for the parties. Sec. 197 of the CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognizance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance. (See Subramanian Swamy Vs. Manmohan Singh (2012) 3 SCC 64 ) The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. (See Subramanian Swamy Vs. Manmohan Singh (2012) 3 SCC 64 ) The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him "while acting or purporting to act in the discharge of his official duty" and in order to find out whether the alleged offence is committed "while acting or purporting to act in the discharge of his official duty", the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties. (See State of Maharashtra Vs. Budhikota Subbarao (1993) 3 SCC 399) The real question, therefore, is whether the act committed is directly concerned with the official duty." 14. The Hon'ble Supreme Court in B.DEVARAJ referred to supra, has observed in para Nos.72, 73 and 74 as under: "72. On the question of the stage at which the trial court has to examine whether sanction has been obtained and if not whether the criminal proceedings should be nipped in the bud, there are diverse decisions of this Court. 73. While this Court has, in D.T. Virupakshappa held that the High Court had erred in not setting aside an order of the trial court taking cognizance of a complaint, in exercise of the power under Sec. 482 of the Criminal Procedure Code, in Matajog Dobey this Court held that it is not always necessary that the need for sanction under Sec. 197 is to be considered as soon as the complaint is lodged and on the allegations contained therein. The complainant may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty and/or under colour of duty. However, the facts subsequently coming to light in course of the trial or upon police or judicial enquiry may establish the necessity for sanction. Thus, whether sanction is necessary or not may have to be determined at any stage of the proceedings. 74. It is well settled that an application under Sec. 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. Thus, whether sanction is necessary or not may have to be determined at any stage of the proceedings. 74. It is well settled that an application under Sec. 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 Sec. 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court." 15. The Hon'ble Supreme Court in A.SRINIVASULU referred to supra, has held in para Nos.39, 40 and 47 as under: "39. In State of Orissa through Kumar Raghvendra Singh vs. Ganesh Chandra Jew (2004) 8 SCC 40 , a two Member Bench of this Court explained that the protection under Sec. 197 has certain limits and that it is available only when the alleged act is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. The Court also explained that 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. 40. The above decision in State of Orissa (supra) was followed (incidentally by the very same author) in K. Kalimuthu vs. State by DSP and Rakesh Kumar Mishra vs. State of Bihar. 47. For the purpose of finding out whether A-1 acted or purported to act in the discharge of his official duty, it is enough for us to see whether he could take cover, rightly or wrongly, under any existing policy. Paragraph 4.2.1 of the existing policy extracted above shows that A-1 at least had an arguable case, in defence of the decision he took to go in for Restricted Tender. Once this is clear, his act, even if alleged to be lacking in bona fides or in pursuance of a conspiracy, would be an act in the discharge of his official duty, making the case come within the parameters of Sec. 197(1) of the Code. Once this is clear, his act, even if alleged to be lacking in bona fides or in pursuance of a conspiracy, would be an act in the discharge of his official duty, making the case come within the parameters of Sec. 197(1) of the Code. Therefore, the prosecution ought to have obtained previous sanction. The Special Court as well as the High Court did not apply their mind to this aspect." 16. On careful reading of the above provision and the dictum of the Hon'ble Supreme Court stated supra, it appears that, if the work dispatched by the public servant shows nexus between the official work and the offence as alleged, the sanction is a must to take cognizance of the case. In the absence of obtaining the sanction, the cognizance of the said offence should not have been taken by the Courts below. Such being the fact, recording the conviction of the petitioner, obviously, unsustainable and the Courts below erred in recording the conviction in the absence of sanction having been obtained by the competent authority. 17. Learned counsel for the petitioner again raised a valid point that, once the public servant is exonerated from the departmental enquiry on the same set of allegations and also evidence of the same witnesses, the judgments of conviction recorded by the Courts below require to be set aside. Now it is relevant to refer the dictum of the Hon'ble Supreme Court in the case of ASHOO SURENDRANATH TEWARI v. DEPUTY SUPERINTENDENT OF POLICE, EOW, CBI & Another, (2020) 9 SCC 636 . para Nos.8, 12, 13 and 14 read thus: "8. A number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt. In P.S. Rajya vs. State of Bihar, the question before the Court was posed as follows: "3. A number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt. In P.S. Rajya vs. State of Bihar, the question before the Court was posed as follows: "3. The short question that arises for our consideration in this appeal is whether the respondent is justified in pursuing the prosecution against the appellant under Sec. 5(2) read with Sec. 5(1)(e) of the Prevention of Corruption Act, 1947 notwithstanding the fact that on an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission." 12. After referring to various judgments, this Court then culled out the ratio of those decisions in paragraph 38 as follows: (Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 ) 38. The ratio which can be culled out from these decisions can broadly be stated as follows: (i) Adjudication proceedings and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution; (iii) Adjudication proceedings and criminal proceedings are independent in nature to each other; (iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution; (v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Sec. 300 of the Code of Criminal Procedure; (vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases. 13. It finally concluded: (Radheshyam Kejriwal case, SCC p. 598, para 39) 39. 13. It finally concluded: (Radheshyam Kejriwal case, SCC p. 598, para 39) 39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court. 14. From our point of view, para 38(vii) is important and if the High Court had bothered to apply this parameter, then on a reading of the CVC report on the same facts, the appellant should have been exonerated." 18. On careful reading of the above dictum of the Hon'ble Supreme Court, it appears that, when the departmental enquiry conducted against the delinquent officer by the competent authority, on the same set of facts and also the evidence of same witnesses, the benefit should be extended to the accused / delinquent officer in criminal case also. Regard being had to the dictum of the Hon'ble Supreme Court as mentioned supra, it is appropriate to extend the benefit of exoneration in the departmental enquiry to the criminal case also. Admittedly in this case, after recording the judgment of conviction by the Courts below, the petitioner was exonerated in the departmental enquiry. Notwithstanding the judgment of conviction, taking into consideration the submission of learned counsel for the petitioner and after perusal of the memo of even date along with the report of the departmental enquiry, which was filed before the Court by learned counsel for the petitioner, it appears that, it is appropriate to extend the benefit of exoneration to the present petitioner in criminal case also. The memo along with the documents is taken on record. 19. In the light of the observations made above, the judgment of conviction recorded by the Courts below appears to be erroneous and unsustainable. Hence, interference by this Court by exercising the Revisional jurisdiction is justified and the conviction is liable to be set aside. 20. Hence, I proceed to pass the following:- ORDER (i) The Criminal Revision Petition is allowed. (ii) The judgment of conviction and order of sentence, dtd. Hence, interference by this Court by exercising the Revisional jurisdiction is justified and the conviction is liable to be set aside. 20. Hence, I proceed to pass the following:- ORDER (i) The Criminal Revision Petition is allowed. (ii) The judgment of conviction and order of sentence, dtd. 21/1/2020 passed in C.C.No.337/2011 by the Court of the Principal Civil Judge and J.M.F.C., Srinivasapura and judgment and order dtd. 11/4/2022 passed in Crl.A. No.15/2020 by the Court of I Additional District and Sessions Judge, Kolar, are set aside. (iii) The petitioner is acquitted for the offences under Ss. 406, 408, 409 and 420 of IPC. (iv) Bail bonds executed, if any, stand cancelled.