IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.2147 OF 2016 BETWEEN:
B B ASHOK KUMAR AGED ABOUT 63 YEARS, S/O.LATE B.C.BOPANNA, R/AT. NO.31/5, ESHWARA NILAYA, LOYALA LAYOUT, VICTORIA ROAD, BENGALURU-560047.
(BY SRI: M.T. NANAIAH, SENIOR ADVOCATE) ... PETITIONER AND NANDA KUMAR R S/O.RAJGOPAL REDDY, AGED ABOUT 30 YEARS, SECRETARY, SPOORTHI VIDYANIKETHAN, R.T.NAGAR POST, BENGALURU-560032.
... RESPONDENT (RESPONDENT SERVED AND UNREPRESENTED) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE PROCEEDINGS REGISTERED IN C.C.NO.17914/2009 (PCR.NO.6239/2008) U/S 500,504,506,212 OF IPC AGAINST THE PETR, PENDING ON THE FILES OF VIII ADDL.C.M.M., BENGALURU.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard the learned Senior Counsel on behalf of the petitioner. Respondent is served and unrepresented.
Petitioner was the Assistant Commissioner of Police attached to R.T.Nagar Sub-Division. Respondent herein lodged a private complaint against the petitioner under section 200 Cr.P.C. In the complaint it is stated that the complainant was the Managing Trustee and Secretary of M/s.Spoorthi Vidyanikethan and in association with Asha Jyothi Public School. Pursuant to the notice received from the petitioner herein, he appeared before the petitioner on 10.03.2008 at 8.30 p.m. along with his Advocate Sri.Adhinarayana Reddy. Petitioner instead of making any enquiry into the allegations and counter allegations pertaining to the affairs of the school, started abusing the complainant in unpleasantry words “¤ÃªÀÅ gÉrØUÀ¼ÀÄ CAzÀæ ¢AqÀ §A¢gÀĪÀªÀgÀÄ ¤ÃªÀÅ gËr ¸ÀA¸Àæøw AiÀĪÀgÀÄ gËr¸ÀªÀiï ªÀiÁqÀĪÀªÀgÀÄ ±Ál vÉUÉAiÉÆÃzÀPÉÌ ¨ÉAUÀ¼ÀÆ£Àæ°è E¢ÝgÁ ¸ÀÆ¼É ªÀÄUÀ£ÉÔ and in the guise of making enquiry, he detained the complainant in the Police Station unauthorisedly for several hours without giving him an opportunity to seek help with an intention to intimidate the complainant/respondent and to make him accept the dictate of the petitioner.
2. Learned Senior Counsel for the petitioner placing reliance on the decision of the Hon’ble Supreme Court in D.T.VIRUPAKSHAPPA vs. C.SUBASH reported in 2015(3) AICLR 231 would submit that the allegations made against the petitioner are connected with discharge of his official duties. These allegations even if accepted in it entirety would indicate that the petitioner has exceeded his jurisdiction in exercise of his official duties. Under the said circumstances, the act committed by the petitioner is protected under section 197 of Cr.P.C., and hence, the prosecution of the petitioner without prior sanction under section 197 Cr.P.C., is wholly illegal and amounts to abuse of process of court and therefore, liable to be quashed by this court in exercise of powers under section 482 of Cr.P.C.
3. Dealing with the requirement of prior sanction for prosecution of a public servant under section 197 Cr.P.C., the Hon’ble Supreme Court in the above decision has affirmed the view taken in STATE OF ORISSA Through Kumar Raghvendra Singh and others vs. GANESH CHANDRA JEW, (2004) 8 SCC 40, and has held that, “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.”
In the said case, the accusations against the appellant before the Hon’ble Supreme Court was that he exceeded in exercising his powers during investigation of a criminal case and assaulted the respondent in order to extract some information with regard to the death of one Sannamma and in that connection, the respondent was detained in the Police Station for some time. Considering the said allegations, in the light of the principles laid down in the earlier case, the Hon’ble Supreme Court has held that the whole allegation is on police excess in connection with the investigation of a criminal case. The said offensive conduct is reasonably connected with the performance of the official duty of the appellant and in that view of the matter, the proceedings against the appellant therein were quashed.
4. The facts of the above case bear similarity to the facts of the instant case. The averments made in the private complaint clearly indicate that the respondent herein was summoned to the Police Station by the petitioner to enquire into certain irregularities in the management of funds of the school of which the respondent/complainant was the Secretary. According to the complainant, during the course of the enquiry, he was abused and was detained in the Police Station. The said act, therefore, amounts to excess in discharging of his duty as investigator. Since the conduct of the petitioner is reasonably connected with the performance of his official duty, the petitioner is entitled for protection available under section 197 of Cr.P.C. As a result initiation of action against the petitioner, without prior sanction under section 197 of Cr.P.C., has vitiated the order of taking cognizance by the learned Magistrate and all the subsequent proceedings initiated against the petitioner.
Consequently, the petition is allowed. The impugned action initiated against the petitioner in C.C.No.17914/2009 (PCR.No.6239/2008) for the offences under sections 500, 504, 506 and 212 of Indian Penal Code pending on the file of VIII Additional Chief Metropolitan Magistrate, Bangalore are hereby quashed.
Sd/- JUDGE Bss