Judgment:
1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE15H DAY OF JUNE, 2015 BEFORE THE HON’BLE MR. JUSTICE A.N.VENUGOPALA GOWDA CRIMINAL PETITION NO.4755/2011 BETWEEN:
1. Y.C. NARAYANA GOWDA RETIRED FOREST GUARD S/O. LATE CHENNE GOWDA AGED60YEARS R/AT YELAGA HAVALLY DODDAMAGA HOBLI HASSAN TALUK & DISTRICT. SINCE DEAD, PETITIONER NO.1 DELETED AS PER THE COURT ORDER
DATED74.2015.
2. KRISHNE GOWDA K.R. RETIRED FOREST RANGE OFFICE S/O. LATE K.M. RAYE GOWDA AGED60YEARS R/AT SANGAMESHWARA EXTN., II STAGE, II ROAD, HASSAN HASSAN DISTRICT. ... PETITIONER (BY SRI P.K. PONNAPPA, ADV.) 2 AND: STATE OF KARNATAKA REPRESENTED BY POLICE BY KONANURU POLICE STATION. …RESPONDENT (BY SRI B. VISWESWARAIAH, HCGP) THIS CRL.P. IS FILED UNDER S.482 CR.P.C., PRAYING TO QUASH THE CHARGE SHEET DATED1812.2008 TO THE EXTENT OF THE CRIME ALLEGED AGAINST ACCUSED NOS. 5 AND6IN C.C.NO.22/2010 ON THE FILE OF CIVIL JUDGE AND JMFC AT ARAKALAGUDU, HASSAN DISTRICT. THIS CRL.P. COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The petitioner is accused No.6 in a charge sheet filed by the respondent before Civil Judge and JMFC at Arakalagudu. Learned Magistrate having taken cognizance and registered C.C.No.22/2010 for the offences punishable under Ss.465, 468, 471, 506 read with S.120(B) of the Indian Penal Code, and issued summons to the accused, this petition was filed under S.482 of Cr.P.C. to quash the entire proceedings, in so far as it pertains to the petitioner. 3 2. Only contention urged by Sri. P.K. Ponnappa, learned advocate is that the learned Magistrate could not have taken cognizance of the alleged offences and issued process to the petitioner, in the absence of the prosecution obtaining and producing the sanction from the State Government i.e., under S.197 of Cr.P.C.
3. Learned HCGP, Sri B. Visweswaraiah, on the other hand, though did not dispute the fact that the petitioner is a public servant, contended that the need regarding obtaining of sanction of the competent authority for prosecution of the petitioner can be considered even at a later stage of the case by the learned magistrate and hence, this petition being premature is liable to rejected.
4. Keeping in view the record of the case and the rival contentions, the point for consideration is whether the learned Magistrate has acted illegally in issuing process to the petitioner, who admittedly is a public servant, in the absence of sanction for prosecution by the competent authority?. 4 5. Section 197(1) of the Code is required to be noticed at this stage and therefore, is extracted below: “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 – (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.” 5 A reading of the said provision reveals that there are three mandatory requirements under S.197(1) of the Code, namely: (a) that the accused is a public servant; (b) that the public servant can be removed from the post by or with the sanction either of the Central or the State Government, as the case may be; (c) the act(s) giving rise to the alleged offence had been committed by the public servant in the actual or purported discharge of his official duties.
6. It is trite that the question, whether sanction is necessary or not, may arise at any stage of the proceedings, and in a given case, it may arise at the stage of inception, as has been held by the Apex Court, in OM PRAKASH AND OTHERS Vs. STATE OF JHARKHAND THROUGH THE SECRETARY, DEPARTMENT OF HOME, RANCHI1AND ANOTHER, (2012) 12 SCC72 The relevant portion is extracted herein below: “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 inception. There may be unassailable and unimpeachable the 6 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 S. 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 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.....” (emphasis is supplied) purporting to act in the discharge of the official duty has the alleged offence was committed while acting or The yardstick to be applied to find out whether 7. been made clear by the Apex Court in STATE OF MAHARASHTRA Vs. DR.BUDHIKOTA SUBHARAO, (1993) 3 SCC339 The relevant portion is extracted herein below: “ 6………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.” 8. In the instant case, the allegation is that the petitioner while working as Range Forest Officer, by 7 colluding with the accused Nos.1 to 3 exceeded in exercising his power i.e., in the matter of granting the permission to transport the felled trees. Therefore, the alleged conduct of the petitioner has an essential connection with the discharge of the official duty.
9. Under S.197 of Cr.P.C., in case, the Government servant is accused of an offence, which is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, the previous sanction for prosecution is necessary. Requirement of sanction for prosecution was the subject matter of consideration and decision in STATE OF ORISSA THROUGH KUMAR RAGHAVENDRA SINGH AND OTHERS Vs. GANESH CHANDRA JEW, (2004) 8 SCC40 Therein the Apex Court has held as follows: “7. The protection given under S. 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 8 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 S. 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 S. is available if the act falls within the scope and range of his official duty…..” (Emphasis is supplied) 10. Going by the factual matrix, it is evident that the whole allegation is granting of permission by the petitioner, to transport the felled trees. The said offensive 9 conduct is reasonably connected with the performance of the official duty of the petitioner. Therefore, without the production of previous sanction of the Competent Authority, learned Magistrate could not have taken cognizance of the offences against the petitioner. For the foregoing discussion, the petition is allowed and the order passed by the learned Civil Judge and JMFC, Arakalagudu, in C.C.No.22/2010 i.e., taking cognizance and issuing process to the petitioner is set aside. However, it is made clear that this order is only on the issue of sanction and this Court has not considered the matter on merit and hence, this order will not stand in the way of the respondent approaching the competent Authority for according of the sanction, under S.197 of Cr.P.C. In case such sanction is accorded and is produced, learned Magistrate may proceed further against the petitioner. sac* Sd/- JUDGE