1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE06H DAY OF OCTOBER, 2023 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.15770 OF2023GM-RES) BETWEEN: SRI SOMASHEKAR NYAMAGOUDA S/O SRI BASAPPA AGED ABOUT55YEARS OCCUPATION WORKING AS SECRETARY APMC73J + 7Q, KERAGAODI ROAD APMC YARD, CHAMUNDESHWARI TIPTUR – 572 201. ... PETITIONER (BY SRI BIPIN HEGDE, ADVOCATE AND SRI KURANDWAD GOPALKRISHNA PRALHAD, ADVOCATE) AND: STATE OF KARNATAKA BY THE CENTRAL BUREAU OF INVESTIGATION OFFICE OF HEAD OF BRANCH, CBI, ACB NO.36, BELLARY RD, GANGANAGAR BENGALURU KARNATAKA – 560 032. ... RESPONDENT (BY SRI P.PRASANNA KUMAR P., HCGP) 2 THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA READ WITH SECTION482OF CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS PENDING BEFORE THE LEARNED LXXXI ADDL CITY CIVIL AND SESSIONS JUDGE BENGALURU DESIGNATED EXCLUSIVELY TO DEAL WITH CRIMINAL CASES RELATING TO SITTING AND FORMER ELECTED MLAs AND MPs IN THE STATE OF KARNATAKA IN SPL.CASE NO.565/2021 AS PER ANNEXURE-B FOR THE OFFENCES PUNISHABLE U/S302 143, 147, 148, 120-B, 201 R/W SEC149OF THE IPC AS FAR AS THE PETITIONER HEREIN (ACCUSED NO.21) IS CONCERNED IN THE INTEREST OF JUSTICE. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON2309.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDERThe petitioner/accused No.21 is before this Court calling in question order dated 08-11-2022 passed by the LXXXI Additional City Civil and Sessions Judge, Bengaluru in Special C.C.No.565 of 2021 rejecting an application filed seeking petitioner’s discharge under Section 227 of the CrPC in a crime registered for offences punishable under Sections 120B, 302, 201, 143, 147, 148 r/w 149 of the IPC.
2. Facts, in brief, germane are as follows:- The petitioner is a Government servant. The genesis of him getting embroiled in the impugned crime is based upon a complaint 3 which becomes a crime in Crime No.135 of 2016. A complaint comes to be registered by Smt. Mallavva Goudar, wife of Yogish Goudar, a member of the Zilla Panchayat, Dharwad. It was the case of the complainant that her husband was two days prior to the incident received an anonymous letter threatening that he would be murdered just like his elder brother late Uday Goudar. The narration in the complaint is that her husband had around 25 criminal cases pending against him and was also listed as a rowdy in the Police Stations of Dharwad and Navalgund. On 15-06-2016 her husband as a routine tries to enter the Gym at which point in time, some unknown person assault him with deadly weapons and commit his murder. On the said incident the complaint comes to be registered on 15-06-2016 which becomes a crime in Crime No.135 of 2016 against unknown persons for offence punishable under Section 302 of the IPC. The Police then conduct investigation and file a charge sheet against six accused for offences punishable under Sections 143, 147, 148, 120B, 302, 201 r/w 149 of the IPC. The accused were alleged of having known the deceased and being politically connected with the rival parties. Accused No.1 had entered into certain agreements with one Todkar for purchase of 4 lands measuring 25 acres 8 guntas. It is the allegation that the said lands were in the custody of the deceased and as such, he had threatened accused No.1 that in the event he would purchase the said lands he would kill accused No.1. It is, therefore what was projected was a murder on account of a property dispute.
3. On the police filing charge sheet observing that it was a property dispute between the deceased and the accused, one Tungamma and brother of the deceased Sri. Gurunath Gouda knocked at the doors of this Court in Writ Petition No.58183-58184 of 2017 seeking a mandamus directing investigation to be transferred to the hands of the Central Bureau of Investigation (‘CBI’ for short). This comes to be rejected by a co-ordinate Bench in terms of its order dated 01-03-2019. This was challenged before the Apex Court and the Apex Court rejected the special leave petition. Thus ended the request for transfer of matter to the hands of the CBI by the family of the deceased.
4. Government of Karnataka on 06-09-2019 accords approval for bringing in the CBI under Section 6 of the Delhi Special Police 5 Establishment Act, 1946 for conduct of further investigation in Crime No.135 of 2016. The CBI then registers a separate FIR for same offences afore-quoted in R.C.17(S)/2019 and begins conduct of investigation. The CBI files three supplementary charge sheets under Section 173(8) of the CrPC, two of which dragged the MLA Sri. Vinay Kulkarni as accused No.15 and the third of which dragged the petitioner into the web of crime as accused No.21. After the petitioner comes into the web of crime by filing a supplemental charge sheet and arraigning him as accused No.21, the petitioner files an application under Section 227 of the CrPC seeking his discharge from the array of accused. During the pendency of the said discharge application, the very reference to the CBI was called in question before this Court in Writ Petition Nos.51012 of 2019 and connected cases. A Division Bench of this Court rejects the writ petitions which challenged the reference to the CBI by order dated 16-10-2021. After the said order was passed by the Division Bench, the impugned order comes to be passed rejecting the discharge application filed by the petitioner in terms of the order dated 08-11-2022 in Special C.C.No.565 of 2021. Claiming to be 6 aggrieved by the said order of rejection of discharge, the petitioner is before this Court in the subject petition.
5. Heard Sri. Bipin Hegde and Sri. Kurandwad Gopalkrishna Prahlad, learned counsel appearing for the petitioner and Sri. P.Prasanna Kumar, learned counsel appearing for the respondent.
6. The learned counsel appearing for the petitioner would vehemently contend that the proceedings against the petitioner suffer from various illegalities. According to the learned counsel there is no sanction to prosecute the petitioner notwithstanding the fact that he is a Government servant and the offences alleged are committed in the discharge of his official duty. The petitioner was not arrayed as accused at the outset, but in the second supplementary charge sheet, the petitioner is arrayed as an accused. The concerned Court has not even looked into the contentions advanced by the petitioner at the time when the application for discharge of the petitioner was considered. The evidence of witnesses, CWs.54 and 55 upon which entire case is 7 based, nowhere mentions the name of the petitioner. Therefore, it is the submission that the petitioner ought to have been discharged from the array of accused or further proceedings ought not to have been continued in the teeth of no sanction being accorded to prosecute the petitioner.
7. On the other hand, the learned counsel appearing for the respondent/CBI Sri. P.Prasanna Kumar would vehemently refute the submissions made by the petitioner contending that not every act will require sanction. Sanction would be required only if the alleged acts are committed in the discharge of official duty by the public servant. What is alleged against the petitioner is preparation of fake travel itinerary, raising of bills and making certain calls to other accused. These are illegal and illicit acts of the petitioner. These acts cannot be brought within the ambit of discharge of official duty to require sanction or otherwise. It is the submission of the learned counsel that during the evidence if the acts of the petitioner are found to have been committed in the discharge of official duty, the Court can very well, at that point in time, ask for sanction. The petition deserves to be rejected if the petitioner’s 8 contention is that there is no sanction accorded to prosecute him. On merits of the matter, the learned counsel would submit that the issue is shrouded with disputed questions of fact and this Court should not interfere at this stage, as it is a matter of trial for the petitioner to come out clean of the alleged offences, as there is copious evidence against the petitioner to pin him down for the offence of conspiracy and destruction of evidence, if not murder under Section 302 of the IPC. He would seek dismissal of the petition.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. In furtherance whereof, it is necessary to consider whether non-grant of sanction to prosecute the petitioner would vitiate entire proceedings against him.
9. To consider the aforesaid issue, it is germane to notice Section 197 of the CrPC and it reads as follows: “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 9 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 Section 166-A, Section 166-B, Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 370, Section 375, Section 376, Section 376-A, Section 376-AB, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB]. or Section 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 10 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-section (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 sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted. (3-A) Notwithstanding anything contained in sub- section (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. (3-B) 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 11 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.” Section 197 of the CrPC mandates that no Court shall take cognizance of the offences if they are the ones punishable for acts of public servant committed during the discharge of his official duty. Therefore, the soul of the provision is ‘during the discharge of official duty’. It, therefore, becomes necessary to notice the allegations against the petitioner which are all considered in the course of the impugned order. CW-35 one H.Umapathi gives a statement on 8-01-2021 and the said statement reads as follows:
"On 15.06.2016, in late evening, I had received a call from Muttagi. He was calling from some different phone number, which was not his regular number. On the same evening. Sh. Muttagi told me that he needed to come to Bangalore and he would reach Bangalore by late night. He requested permission to stay at my residence located at Dollars Colony. Muttagi called me three to four times and he appeared! to be a little disturbed. I could recall that he was calling me at around 0130hrs past midnight on 16.06.2016 in the mobile No.7899004505 and confirmed that he would be reaching in another 5 to 10 minutes time. Muttagi 12 reached by one taxi and he seemed very tired and he requested me to allow him to sleep and he would talk to me in the morning. As he was very tired, I could not ask any question about his late coming at Bangalore. In the morning, Muttagi got up and I tried to know the reason of his coming and getting disturbed. He replied that he had done some mistakes and he would brief him the details later. However, he told me that he wanted to meet some individuals at Sadasivangar. Muttagi completed his bath and performed puja and then left my residence at around 0845 hrs. Muttagi had called one taxi. He told that he would discuss the matter afterwards as he had an urgent meeting with PS of the then cabinet minister Sh. Vinay Kulkarni. I am to say that by on 16.06.2016, 1 got a call from Muttagi and he told me that he was leaving Bangalore and was going back to Dharwad. He further told me that he had made a grave mistake and he murdered one person at Dharwad with the assistance his associates. He further told me that it was done for the minister Shri Vinay Kulkarni. He further told that though minister had given him the assurance to take care of police and judiciary, he was feeling disturbed. He further told that Sh. Nymegoudar, the then PS of the minister, was following the development with the police. Muttagialso requested to take care of his old parents and my wife in case, the matter did not work out as planned. I am to say, he was in great fear and we talked several times on 16.06.2016, before he reached to his village Mangundi."
(Emphasis added)
It is the statement of CW-35 that he told that the petitioner, the then Private Secretary to the Minister/Accused No.15, was following the development with the Police. Muttagi, accused No.1 requested to take care of his old parents and his wife and great fear was 13 prevailing when they (Muttagi & CW-35) spoke several times to the petitioner.
10. CW-54/Sri Nataraj Sirj Desai in his statement dated 15-12-2020 deposes as follows:
"I am to say, I know Sh. Basavaraj Muttagi from the last 8 to 10 years. He was the state president of Jai Karnataka organisation. He used to visit the residence and dairy of Sh. Vinay Kulkarni regularly. I am to say that on 13.06.2016, he visited dairy in the morning and asked me to contact my brother Sh. Vinay Kulkarni over phone He was in Bangalore .However, the phone did not get connected. Muttagi told me to ask Sh. Vinay Kulkarni to give confirmation as to whether the work decided was to be done or not. As the call did not get connected, I told him to go back and told him that I would contact and get back to him with the instructions. Later, I got a call from Sh. Nymegoudar, the then PS, of Sh. Vinay Kulkarni and I passed the message of Sh. Muttagi, Then Nymegoudar informed that Sh. Vinay Kulkarni, Mutttagi had confirmed to go ahead with the work. I passed the said message to Muttagi On 15.06.2016, 1 was in Dharwad and I learnt from the persons there at Dharwad, that murder of Yogesh Goudar, took place at his gym located at Saptapur, Dharwad. On being asked about the calls I received on 15.06.2016 evening, I confirm that Shri. Basavraj Muttagi had given a call from an unknown number and asked me about the location of Shri. Vinay Kulkarni, as he wanted to meet him urgently. Then I contacted Nymegoudar, the then PS and informed him to pass the message of Muttagi to Vinay Anna. Nymegoudar called me and informed that they were in Bangalore. I informed the same to Muttagi. Next 14 minute, I got a call from Shri. Nymegoudar and he asked me to tell Muttagi to come at an address which I am not able to recall now. Nymedgoudar again asked where was the location of Muttagi and how much time he would take to come to the place. Accordingly I conveyed the message to Muttagi. 1am to say, there could be three to four calls made between Muttagi and myself from the said unknown number on that day. Now I have been shown the CDR of Mobile No.9844267730 and asked the about the presence of my phone No.9449188277 for the day 15.06.2016 in e said CDR, on perusal I am to say that these are same calls, which I had rceived and called to Muttagi... Sl.No Time Duration Type of Call 1 22.09 6 Outgoing 2 22.10 97 Incoming 3 22.18 77 Incoming 4 22.20 61 Incoming “
(Emphasis added)11. CW-71/Sri. Ananth N.Kasker in his statement on 15-01-2021 has deposed as follows: “I am to say, this letter contains details of tour program submitted for the trip scheduled to New Delhi to meet and discuss with Hon'ble Union cabinet Minister for Steel and Mines on 13.06.2016. As per TP submitted by S. B Nyamagouda, Personal Secretary to Minister of State for Mines and Geology, Sh. Kulkarni was scheduled to leave New Delhi on 12.06.2016 by flight with Dep. Time 1130 hrs. It is also revealed as per the TP, he was to return on 13.06.2016 by flight reaching Bangalore by 1700 hrs. The purpose of the TP was to meet Hon'ble Union Cabinet Minister for Steel and Mines, Shastri Bhavan, New Delhi, regarding the pending issues of 15 Karnataka State. It was scheduled at 1000 hrs on 13.06.2016.”
(Emphasis added)CW-71 would depose that the petitioner has prepared a letter. The letter was tour programme details of a trip of accused No.15/Vinay Kulkarni scheduled to New Delhi to meet and discuss with the Minister for Mines and Steel on 13-06-2016. Accused No.15 was scheduled to leave to New Delhi on 12-06-2016 with the purpose of meeting the Union Cabinet Minister at Shastri Bhavan regarding pending issues of Karnataka State and later return back to Bangalore and then travel to Hubli. The travel never happened is the allegation against the petitioner as he had prepared a fake travel itinerary.
12. The concerned Court takes cognizance of the additional charge sheet filed by the CBI against accused Nos.18 to 21. Insofar as the petitioner is concerned, the order taking cognizance reads as follows: “2.……It is further alleged that the accused No.21 Somashekar Basappa Nyamagouda, the then Personal Secretary of accused No.15- Vinay Kulkarni, had the knowledge of the conspiracy to murder Shri Yogesh Goudar and he actively assisted accused No.15-Vinay Kulkarni in the above crime by carrying out the instructions given to 16 him and he had passed on the message conveyed by accused No.15 to complete the task i.e., murder of Yogesh Goudar and therefore, the Addl. Charge sheet is filed after conducting further investigation under Sec. 173(8) of Cr.P.C., against accused No.18 to 21 alleging offences punishable under Sec.120-B, 302, 218, 201, 143, 147, 148 R/w 149 of IPC and Sec.7 and Sec.13(2) R/w 13(1)(d) of Prevention of Corruption Act, 1988.
3. I have gone through the charge sheet materials and in the charge sheet, the Investigation Officer has cited additional witnesses CW71 to CW150 and also produced documents list from SL.No.76 to130 and material objects at Sl.No.1 to 15. The Investigation Officer has also produced the sanction order passed by the Government of Karnataka vide G.O.No.HD53PoSiPa (ii) 2021 dated 09.08.2021 to prosecute accused No.19- Chennakeshava Tingarikar and sanction order passed by the Goverment Karnataka vide Government order No.HD53PoSiPa(i) 2021 dated 09.08.2021 to prosecute accused No.20 Vasudev Rama Nilekani.
4. Therefore, there are sufficient materials to take cognizance of the offences punishable under Sec.143, 147, 148, 201, 218, 302 R/W120B R/W149of IPC and Sec.7 and Sec.13(1)(d) R/w 13(2) of the Prevention of Corruption Act, 1988 against accused No.18 to 21. Hence, I proceed to pass the following:
ORDERCognizance is taken against accused No.18 to 21 for the offences punishable under Sec.143, 147, 148, 201, 218, 302 R/w 120-B R/w 149 of IPC and Sec.7 and Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988.”
(Emphasis added)The Court notices that the petitioner had the knowledge of conspiracy to murder Yogesh Goudar and he has actively assisted 17 Vinay Kulkarni/accused No.15 in carrying out the instructions given to him to complete the task. The phrase ‘complete the task’ appears at various places. According to the prosecution ‘complete the task’ would mean ‘finish the person’ i.e., the deceased. According to the petitioner, the task would be anything. It is incorrect to assume that the task is to finish the deceased is his submission.
13. In the teeth of the aforesaid evidence and the fact of the order taking cognizance what would unmistakably emerge is that, these are acts which are committed by the petitioner not using the position of him being a public servant, but misusing the position of him being a public servant. Creating a false tour programme, generating itinerary, allegedly getting involved in a conspiracy to kill the deceased and allegedly following the instructions of accused No.15 all led to the order taking cognizance. The summary of the supplementary charge insofar as the petitioner is concerned reads as follows: “35. The further investigation conducted by the CBI revealed Shri. Somashekhar Nyamagouda (A-21) was the then PS to Shri Vinay Kulkarni, Minister of Mines and Geology (GOK) during the year 2015 to 2018. 18 The further investigation revealed that Shri. Somashekhar Nyamagouda (A-21) was having the knowledge of the conspiracy to murder Shri. Yogesh Goudar. However instead of reporting the crime as a public servant, he actively assisted Shri. Vinay Kulkarni (A-15) in the above crime by carrying out the instructions given to him which were beyond the ambit of the public duty assigned to him. He communicated with the accused and witnesses for facilitating the crime. Shri. Somashekhar Nyamagouda (A- 21), had passed on the message conveyed by A-15 to complete the task i.e to murder Shri. Yogesh Goudar and the same was further passed on to A-1 on 13.06.2016 which resulted in the murder of Yogesh Goudar on 15.06.2016. CW-54, a cousin A-15 confirmed the said fact before the Hon'ble court while voluntarily opting for recording his statement u/s 164(5) CrPC.
36. The further investigation also revealed that he created a false tour program for the minister Shri. Vinay Kulkarni A-15 on 12.06.2016 (Sunday) and the air tickets were booked on 12.06.2016 claiming to meet Cabinet Minister in New Delhi. However, it is ascertained that the said cabinet minister (GOI) was, at Allahabad on 12.06.2016, for attending a national level political meeting. Thus it is clear that the said tour programme was generated by A-21 to aid A-15 to claim an alibi that the latter was on an official trip immediately prior to the murder to rule out any future allegations in the crime. Shri. Somashekhar, Nyamagouda (A-21) has signed and submitted the tour program to the government department knowing fully well that there was no such meeting with central minister and thereby created a false record as per the will of the Minister (A-15). As he was thoroughly aware that no such meeting was intended, he did not even send the said tour program to the office of the Central Minister in Delhi.
37. The further investigation has revealed that in furtherance of the conspiracy, after the commission of the murder on 15.06.2016, Shri. Basavaraj Muttagi (A-1) came 19 to Bangalore on the night of the day of murder of Yogesh Goudar and met A-15 and his associates including Shri. Somashekhar Nyamagouda (A-21) at Sadashivnagar. Bangalore. It is pertinent to mention that taxi driver CW-33 has confirmed the visit of A-1 at Sadasivnagar Bangalore in the intervening night of 15.06.2016 and 16.06.2016. It was also revealed that A-15 was present along with his associates viz. A-16, A-21, CW-55 (own brother of A-15) and Shri. Kempegowda Patil (CW-124), a close relative of A-15, CW-55 confirmed the said meeting that happened at the wee hours and discussion was held in the car between Shri. Somashekhar Nyamagouda (A-21) and Shri. Basavaraj Muttagi (A-1) who were seated in the back seat and Shri. Vinay Kulkarni (A-15) in the front seat and Shri. Chandrashekar Indi (A-16) standing outside near driving seat. The meeting of A-1 with the key conspirators including A-21 revealed the subsequent conduct of A-1 after the commission of murder thereby reporting to the main conspirator A-15. Further, A-21 acted beyond his duty as public servant and was actively involved in the conspiracy and assisted in the commission of the murder of the deceased. It is revealed that A-1 got assurance from A- 15 in respect of protection from the police during his surrender with his associates (A-2 to A-6). The said meeting of A-1 with these accused immediately after the commission of the crime on the same day clearly shows their involvement of the accused and the close nexus between them in the conspiracy from the initial stage till the accomplishment of the object of the conspiracy.
38. In furtherance of the conspiracy Shri. Somashekhar Nyamagouda (A-21) met A-1 again near Sanky Tank area of Bangalore with A-16, maternal uncle of A-15, which is confirmed by CW-55. It is stated by CW-55, that A-21 was carrying a small bag. During confrontation, A-1 confirmed that the same bag was having Rs 5 lakhs amount. During investigation the same bag was also noticed by the taxi driver CW-34, when A-1 got down from his car before starting his journey to Dharwad to surrender. Thus, it is evidently clear that A-21 has actively participated and assisted A-15 in the conspiracy and commission of crime. 20
39. During further investigation, Shri. Somashekhar Nyamagouda (A-21) denied to undergo polygraph test before the Hon'ble Court.
40. The above overt acts and circumstances manifestly disclose the commission of offences by Shri. Vikas Kalburgi (A-18), Shri Chenakeshva Tingerikar A-19, Shri. Vasudev Rama Nilkeni (A-20) and Shri. Somashekhar Nyamagouda (A-21) u/s.120B r/w 302, 218, 201, 143, 147, 148, r/w 149 of IPC and Section 7 and Sec 13(2) r/w 13(1)(d) of PC Act 1988 and substantive offences thereof.
41. The Under Secretary to Government, Home Department (Police Services-A), in exercise of powers conferred on the Govt of Karnataka under Section 197 of CrPC, Section 170 of Karnataka Police Act 1963 and Section 19 of Prevention of Corruption Act 1988, conveyed the sanction of the competent authority to prosecute Shri Chenakeshva Tingerikar (A-19) and Shri. Vasudev Rama Nilkeni (A-20) for offences punishable under sections 120 - B, 302, 218, 201, 143, 147, 148 R/w 149 IPC and Section 7 and Sec 13(2) r/w 13(1)(d) of PC Act 1988.
42. Hence, this charge-sheet is filed under 173(8) of Cr.PC. against Shri. Vikas Kalburgi (A-18), Shri. Chenakeshva Tingerikar (A-19), Shri. Vasudev Rama Nilkeni (A-20) and Shri. Somashekhar Nyamagouda (A-21) before this Hon'ble Court in continuation to the final report dated 20.05.2020 and 30.01.2021 filed by CBI for taking cognizance against the said accused for the offences as mentioned above.
43. It is submitted that during further investigation, questioned documents have been sent to Karnataka State FSL, Madiwala for examining the threat letter received by the deceased two days before the commission of murder. It is submitted that the said documents and the expert opinion will be submitted once it is received from the forensic laboratory.”
(Emphasis added)21 With the aforesaid copious material found in the supplementary charge sheet, which is pursuant to the statements against the petitioner noticed hereinabove, I have no hesitation to hold that all the acts of the petitioner cannot be termed to be in the performance of discharge of official duty. Entering into an alleged conspiracy, facilitating the act and actively involving himself in the performance of the act and the aftermath may not be as the prime accused, but an accused who has cooperated with the prime accused. Section 197 of the CrPC is not spreading the protective umbrella of law on illicit acts of public servants.
14. Insofar as judgments relied on by the learned counsel appearing for the petitioner are concerned, in few of the cases of the Apex Court and that of this Court, there can be no qualm about the principles laid down by the Apex Court therein. The Apex Court clearly holds that public servants performing acts which have nexus to the performance of official duty only are protected. Reference being made to the judgment of the Apex Court in the case of 22 A.SREENIVASA REDDY v. RAKESH SHARMA AND ANOTHER1 would be apposite, wherein the Apex Court has held as follows: “ANALYSIS38 Having heard the learned counsel appearing for the parties and having gone through the materials placed on record the following questions of law fall for our consideration: (i) Whether the appellant, serving in his capacity as an Assistant General Manager, State Bank of India, Overseas Bank, is removable from his office save by or with the sanction of the Government so as to make Section 197 of the CrPC applicable?. (ii) Is it permissible for the Special Court (CBI) to proceed against the appellant for the offences punishable under the IPC despite the fact that the sanction under Section 19 of the PC Act, 1988 to prosecute the appellant for the offences under the PC Act, 1988, is not on record as the same came to be declined?. SECTION197OF THE CrPC39 Section 197 of the CrPC 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 save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)— 1 2023 SCC OnLine SC95223 (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 section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB or section 509 of the Penal Code, 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-section (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 sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted. 24 (3A) Notwithstanding anything contained in sub-section (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 (43 of 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.
40. The Law Commission in its 41st Report has observed: “15.123. Section 197, as it now stands, applies to a public servant of the specified category only when he is holding office as such public servant. It does not apply to him after he has retired, resigned or otherwise left the service……………….It appears to us that protection under the Section is 25 needed as much after retirement of the public servant as before retirement. The protection afforded by the Section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecutions. It should be left to the Government to determine from that point of view the question of expediency of prosecuting any public servant.
41. Section 197 of the Cr PC provides that when any person who is or was a public servant, not removable from his office save by or with the sanction of the Central Government or State 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 duties, no Court shall take cognizance of such offence, except with the previous sanction of the appropriate Government.
42. Sub-section(1) of Section 197 of the CrPC shows that sanction for prosecution is required where 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 discharge of his official duty. Article 311 of the Constitution lays down that no person, who is a member of a civil service of the Union or State or holds a civil post under the Union or State, shall be removed by an authority subordinate to that by which he was appointed. It, therefore, follows that protection of sub-section (1) of Section 197 of CrPC is available only to such public servants whose appointing authority is the Central Government or the State Government and not to every public servant.
43. The word ‘sanction’ has not been defined in the CrPC. The dictionary meaning of the word ‘sanction’ is as under:— 26 “Webster's Third New Internal Dictionary : Explicit permission or recognition by one in Authority that gives validity to the act of another person or body; something that authorizes, confirms, or countenances. The New Lexicon Webster's Dictionary : Explicit permission given by someone in Authority. The Concise Oxford Dictionary : Encouragement given to an action etc., by custom or tradition; express permission, confirmation or ratification of a law etc; authorize, countenance, or agree to (an action etc.) Stroud's Judicial Dictionary: Sanction not only means prior approval; generally it also means ratification. Words and Phrases : The verb ‘sanction’ has a distinct shade of meaning from ‘authorize’ and means to assent, concur, confirm or ratify. The word conveys the idea of sacredness or of Authority. The Law Lexicon by Ramanath Iyer : Prior approval or ratification.
44. In 78 Corpus Juris Secundum at Page 579 different meanings have been given to the word as a noun and as a verb. As a noun it means penalty or punishment provided as a means of enforcing obedience to a law and in a wider sense an authorisation of any thing and it may convey the idea of authority. As a verb ‘sanction’ is defined as meaning to assent, concur, confirm or ratify. In U.S. v. Tillinghast D.G., 55 F.2d 279, it was held that where legal rights are involved it is doubtful whether it should be construed as requiring less than an unmistakable expression of approval. In Section 197 of the CrPC, the word ‘sanction’ has been used as a verb and, therefore, it will mean to assent, to concur or approval.
45. The legislature has given great importance to sanction as is evident from the Scheme of the CrPC. Section 216 of the CrPC gives power to the Court to alter or 27 add to any charge at any time before judgment is pronounced but sub-section (5) thereof provides that if the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded. This was also emphasised by the Privy Council in the leading case of Gokulchand Dwarka Das Morarka v. King, AIR1948PC82 where in para 9 it was observed as follows at Page 85:— “… The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. …
46. The appellant was serving as an Assistant General Manager, State Bank of India, Overseas Bank at Hyderabad. State Bank of India is a Nationalised Bank. Although a person working in a Nationalised Bank is a public servant, yet the provisions of Section 197 of the CrPC would not be attracted at all as Section 197 is attracted only in cases where the public servant is such who is not removable from his service save by or with the sanction of the Government. It is not disputed that the appellant is not holding a post where he could not be removed from service except by or with the sanction of the Government. In this view of the matter, even if it is alleged that the appellant herein is a public servant, still the provisions of Section 197 of the CrPC are not attracted at all.
47. The question as to whether a Manager of Nationalised Bank can claim benefit of Section 197 of the CrPC is not res integra. This Court in K. Ch. Prasad v. Smt. J.
Vanalatha Devi, (1987) 2 SCC52 had the occasion to consider the very same question in reference to one who claimed to be a public servant working in a Nationalised Bank. The application filed by the 28 appellant therein questioned the maintainability of the prosecution for want of sanction under Section 197 of the CrPC, was rejected by the Metropolitan Magistrate and revision to the High Court also met the same fate. This Court, while dismissing the appeal held that though a person working in a Nationalised Bank is a public servant, the provisions of Section 197 are not attracted at all. In para 6 of the judgment, following has been held : (SCC p.
54) “6. It is very clear from this provision that this section is attracted only in cases where the public servant is such who is not removable from his office save by or with the sanction of the Government. It is not disputed that the appellant is not holding a post where he could not be removed from service except by or with the sanction of the government. In this view of the matter even if it is held that the appellant is a public servant still provisions of Section 197 are not attracted at all.” (Emphasis supplied) 48. The aforesaid decision of this Court in K. Ch. Prasad (supra) has been quoted with approval in a later decision in the case of S.K. Miglani (supra). In this case, the appellant was working as a Manager in the Bank of Baroda, Faridabad Branch. A complaint in writing was lodged by the Director, Housing against the appellant. On the strength of the said complaint, the Kotla Mubarakpur Police Station registered a First Information Report for the offences under Sections 201, 409, 419, 420, 467, 468, 471 and 120-B respectively of the IPC. It was the case of the prosecution that the appellant therein and another co- accused in collusion with each other acted on a fake request of original allottee for cost reduction of a flat from Rs. 10.66 lakh to Rs. 7.77 lakh with the approval of the competent authority. Many other allegations were levelled in the said FIR. Upon completion of the investigation, chargesheet was submitted. The appellant filed an application before the ACMM, Saket Court, New Delhi in the FIR referred to above, stating that he being a public servant employed with the Nationlised Bank as a Manager, it was mandatory to seek sanction against him in terms of Section 197 of the CrPC. 29
49. It was argued before the Court that he may be discharged on account of non-compliance under Section 197 of the CrPC. The Chief Metropolitan Magistrate (South), Saket Court rejected the application filed by the appellant therein, seeking discharge for want of sanction. The matter reached up to this Court. This Court held in paras 10 and 12 respectively as under: “10. The appellant being a Manager in a nationalised bank whether can claim that before prosecuting him sanction is required under Section 197. The CMM having come to the opinion that the appellant having not satisfied that he was a public servant not removable from his office save by or with the sanction of the Government, Section 197 CrPC was not attracted with regard to the appellant. After coming to the above conclusions, it was not necessary for the CMM to enter into the question as to whether the acts alleged against the appellant were discharged in performance of official duty. xxxxxxxxx 12. The High Court in its impugned judgment has not adverted to the above aspect and has only confined to the discussion as to whether the acts alleged of the appellant were in discharge of official duty. The High Court also had relied on the judgment of this Court in Parkash Singh Badal [Parkash Singh Badal v. State of Punjab, (2007) 1 SCC1: (2007) 1 SCC (Cri) 193].. We, having come to the conclusion that the appellant being not a public servant removable from his office save by or with the sanction of the Government, sanction under Section 197 CrPC was not applicable. The appellant cannot claim protection under Section 197 CrPC. We are of the view that examination of further question as to whether the appellant was acting or purporting to act in the discharge of his official duty was not required to be gone into, when he did not fulfil conditions for applicability of Section 197(1) CrPC.” (Emphasis supplied) 30 50. It is pertinent to note that the banking sector being governed by the Reserve Bank of India and considered as a limb of the State under Article 12 of the Constitution and also by virtue of Section 46A of the Banking Regulation Act, 1949, the appellant herein is deemed to be a “public servant’ for the purpose of provisions under the PC Act, 1988. However, the same cannot be extended to the IPC. Assuming for a moment that the appellant herein should be considered as a “public servant” for the IPC sanction also, the protection available under Section 197 of the CrPC is not available to the appellant herein since, the conditions in built under Section 197 of the CrPC are not fulfilled.
51. Unfortunately, in the case on hand, the High Court also missed or overlooked the aforesaid aspect and confined its adjudication as to whether the acts alleged of the appellant were in discharge of the official duty.
52. Question No.1 is answered accordingly. QUESTION No.2
53. It was vociferously argued by the learned counsel appearing for the appellant that as sanction under Section 19 of the PC Act, 1988 has not been granted, the appellant cannot not be prosecuted for the offences under the IPC alone and he should be discharged from the criminal proceedings.
54. Section 19 of the PC Act, 1988 reads thus: “19. Previous sanction necessary for prosecution.— (1) No court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)— (a) in the case of a person who is employed, or as the case may be, was at the time of 31 commission of the alleged offence employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that 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 and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office: Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-section, unless— (i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and (ii) the court has not dismissed the complaint under section 203 of the Criminal Procedure Code, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding: Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government 32 or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant: Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub- section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt: Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month: Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary. Explanation.—For the purposes of sub-section (1), the expression “public servant” includes such person— (a) who has ceased to hold the office during which the offence is alleged to have been committed; or (b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under subsection (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that 33 Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974),— (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under subsection (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation.— For the purposes of this section,— (a) error includes competency of the authority to grant sanction; 34 (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
55. Sanction contemplated under Section 197 of the CrPC concerns a public servant who “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” whereas, the offences contemplated in the PC Act, 1988 are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties.
56. The offences under the IPC and offences under the PC Act, 1988 are different and distinct. What is important to consider is whether the offences for one reason or the other punishable under the IPC are also required to be approved in relation to the offences punishable under the PC Act, 1988.
57. It is important to draw a distinction between an order of sanction required for prosecuting a person for commission of an offence under the IPC and an order of sanction required for commission of an offence under the PC Act, 1988.
58. In Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC411 this Court noted: “…The sanction contemplated in Section 197 of the Code concerns a public servant who ‘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’, whereas the offences contemplated in the PC Act are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former PC Act was 35 materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 of the Code…” (Emphasis supplied) 59. In Lalu Prasad alias Lalu Prasad Yadav v. State of Bihar, (2007) 1 SCC49 this Court observed as under: “10. It may be noted that Section 197 of the CrPC and Section 19 of the PC Act, 1988 operate in conceptually different fields. In cases covered under the Act, in respect of public servants the sanction is of automatic nature and thus factual aspects are of little or no consequence. Conversely, in a case relatable to Section 197 of the CrPC, the substratum and basic features of the case have to be considered to find out whether the alleged act has any nexus with the discharge of duties. Position is not so in case of Section 19 of the Act.” (Emphasis supplied) 60. Thus, although in the present case, the appellant has been discharged from the offences punishable under the PC Act, 1988 yet for the IPC offences, he can be proceeded further in accordance with law.
61. From the aforesaid, it can be said that there can be no thumb rule that in a prosecution before the court of Special Judge, the previous sanction under Section 19 of the PC Act, 1988 would invariably be the only prerequisite. If the offences on the charge of which, the public servant is expected to be put on trial include the offences other than those punishable under the PC Act, 1988 that is to say under the general law (i.e. IPC), the court is bound to examine, at the time of cognizance and also, if necessary, at subsequent stages (as the case progresses) as to whether there is a necessity of sanction under Section 197 of the CrPC. There is a material difference between the statutory requirements of Section 19 of the PC Act, 1988 on one hand, and Section 197 of the CrPC, on the other. In the prosecution for the offences exclusively under the PC Act, 1988, sanction is mandatory qua the public servant. In cases under the general penal law 36 against the public servant, the necessity (or otherwise) of sanction under Section 197 of the CrPC depends on the factual aspects. The test in the latter case is of the “nexus” between the act of commission or omission and the official duty of the public servant. To commit an offence punishable under law can never be a part of the official duty of a public servant. It is too simplistic an approach to adopt and to reject the necessity of sanction under Section 197 of the CrPC on such reasoning. The “safe and sure test”, is to ascertain if the omission or neglect to commit the act complained of would have made the public servant answerable for the charge of dereliction of his official duty. He may have acted “in excess of his duty”, but if there is a “reasonable connection” between the impugned act and the performance of the official duty, the protective umbrella of Section 197 of the CrPC cannot be denied, so long as the discharge of official duty is not used as a cloak for illicit acts.
62. Before, we close this matter, we would like to observe something which, this Court may have to consider sooner or later. The object behind the enactment of Section 19 of the PC Act, 1988 is to protect the public servants from frivolous prosecutions. Take a case wherein, the sanctioning authority at the time of declining to accord sanction under Section 19 of the PC Act, 1988 observes that sanction is being declined because the prosecution against the accused could be termed as frivolous or vexatious. Then, in such circumstances what would be its effect on the trial so far as the IPC offences are concerned?. Could it be said that the prosecution for the offences under the PC Act, 1988 is frivolous but the same would not be for the offences under the IPC?. We are not going into this question in the present matter as sanction initially was not declined on the ground that the prosecution against the appellant herein is frivolous or vexatious but the same was declined essentially on the ground that what has been alleged is mere procedural irregularities in discharge of essential duties. Whether such procedural irregularities constitute any offence under the IPC or not will be looked into by the trial court. What we have highlighted may be 37 examined by this Court in some other litigation at an appropriate time.” (Emphasis supplied) The Apex Court considers the entire spectrum of law and holds that there should a nexus between the act of commission or omission on the official duty of the public servant and the protective umbrella cannot be used as a cloak for illicit acts.
15. If the facts narrated hereinabove are considered on the bedrock of the principles laid down by the Apex Court in the aforesaid judgment, it becomes unmistakably clear that the umbrella of protection under Section 197 of the CrPC can by no strength of imagination be spread to the illicit act of the petitioner. However, these are in the realm of seriously disputed question of fact. This Court hearing a petition under Section 482 of the CrPC cannot enter into the arena of seriously disputed questions of fact and consider them by sifting the evidence and answering the petition in favour of the petitioner.
16. The learned counsel for the petitioner has strenuously contended that the ingredients of criminal conspiracy as obtaining 38 under Section 120B of the IPC are not present in the case at hand. As observed hereinabove, in the statements rendered by several of the witnesses, it cannot prima facie be concluded that there was no role of the petitioner at all in the alleged conspiracy. These are all matters in the realm of evidence and for the petitioner to come out clean. Reference being made to the judgment of the Apex Court, in the case of KAPTAN SINGH v. STATE OF UTTAR PRADESH2 in the circumstances, becomes apposite. The Apex Court in the said judgment has held as follows: “9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914]. passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 2 (2021) 9 SCC3539 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC104: (2018) 1 SCC (Cri) 683]. in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material. 9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC191: (2020) 3 SCC (Cri) 672]. after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC335:
1992. SCC (Cri) 426]. , it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such 40 exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC686: (2020) 1 SCC (Cri) 94]. , Managipet [State of Telangana v. Managipet, (2019) 19 SCC87: (2020) 3 SCC (Cri) 702]. and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC337: (2020) 1 SCC (Cri) 173]. , referred to hereinabove. 9.3. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.
10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27- 10-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered 41 document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.
11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.
12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.
13. Even the High Court has erred in observing that original complaint has no locus. The aforesaid observation is 42 made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court. However, when it is specifically stated in the FIR that Munni Devi has executed the power of attorney and thereafter the investigating officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial.
14. In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914]. passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed.” (Emphasis supplied) 17. In view of the preceding analysis, I have no hesitation to hold that the acts of the petitioner do not require sanction for prosecution, as they are not prima facie in the discharge of official duties. It is always open that during the course of trial if it is found that the acts of the petitioner are in the realm of discharge of official duties, then the concerned Court can stop the proceedings and seek sanction from the hands of the Ccompetent Authority to 43 continue the trial against the petitioner. Even on merits of the matter, the submissions of the learned counsel for the petitioner do not merit any acceptance.
18. For the aforesaid reasons, finding no merit in the petition, the petition stands rejected. However, it is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioner under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings pending before the trial Court against the other accused. Interim order operating in the case at hand, if any, stands dissolved. Sd/- JUDGE Bkp CT:MJ