IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NOS.15791/2017 c/w 16397/2017, 16399/2017 (GM-RES) W.P.No.15791/2017: BETWEEN:
GEETHA KULKARNI AGED ABOUT 44 YEARS, W/O NAVEEN KUMAR, WORKING AS INSPECTOR AT CID, R/AT NO.874, 18TH MAIN, 5TH BLOCK, RAJAJINAGAR, BENGALURU – 560 010 ...PETITIONER (BY SRI.VENKATESH P. DALWAI, ADVOCATE) AND:
SRI KRIPLANI M S/O. MADANA KANTHAN, AGED ABOUT 41 YEARS, NO.1093, 16TH B MAIN, HAL 2ND STAGE, INDIRANAGAR, BENGALURU – 560 008 (BY SRI S. RACHAIAH, HCGP FOR R-1; SRI.KRIPLANI. M, R-2 PARTY-IN-PERSON) ...RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 3.4.2017 PASSED BY THE LEARNED I ADLL. CHIEF METROPOLITAN MAGISTRATE AT BANGALORE IN C.C.NO.867/2015 AT ANNEX-M.
W.P.No.16397/2017: BETWEEN:
MR. SRIDHAR K.V. AGED ABOUT 46 YEARS S/O. VENKATARAMANA SHETTY, NO.1122, 9TH CROSS, ADARSHA LAYOUT, BASAVESHWARANAGAR, BANGALORE – 71 (BY SRI. P.N.HEGDE, ADVOCATE) ...PETITIONER AND:
1. STATE OF KARNATAKA THROUGH CRIMINAL INVESTIGATION DEPARTMENT, SPECIAL INVESTIGATION DIVISION, BANGALORE, REP. BY SPP HIGH COURT OF KARNATAKA, BANGALORE – 560 001 2. SRI KRIPLANI M S/O. MADANA KANTHAN, AGED ABOUT 41 YEARS, NO.1093, 16TH B MAIN, HAL 2ND STAGE, INDIRANAGAR, BENGALURU – 560 008 ...RESPONDENTS (BY SRI S. RACHAIAH, HCGP FOR R-1; SRI.KRIPLANI. M, R-2 PARTY-IN-PERSON) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE PROCEEDINGS AT ANNEX-A PENDING ON THE FILE OF I-ADDL. CHIEF METROPOLITAN MAGISTRATE AT BANGALORE IN C.C.867/2015.
W.P.No.16399/2017:
BETWEEN:
MRS. M.C.KAVITHA AGED 45 YEARS, W/O. MR.KARRIAPPA A WORKING AS INSPECTOR AT SCRB, R/AT NO.1, POLICEO FFICERS QUARTERS, BERLIE STREET, SHANTHINAGAR, BANGALORE-27 (BY SRI. P.N.HEGDE, ADVOCATE) AND:
1. STATE OF KARNATAKA THROUGH ...PETITIONER CRIMINAL INVESTIGATION DEPARTMENT, SPECIAL INVESTIGATION DIVISION, BANGALORE, REP. BY SPP HIGH COURT OF KARNATAKA, BANGALORE – 560 001 2. SRI KRIPLANI M S/O. MADANA KANTHAN, AGED ABOUT 41 YEARS, NO.1093, 16TH B MAIN, HAL 2ND STAGE, INDIRANAGAR, BENGALURU – 560 008 ...RESPONDENTS (BY SRI S. RACHAIAH, HCGP FOR R-1; SRI.KRIPLANI. M, R-2 PARTY-IN-PERSON) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ENTIRE PROCEEDINGS AT ANNEX-A PENDING ON THE FILEO F I ADDL. CHIEF METROPOLITAN MAGISTRATE AT BANGALORE IN C.C.NO.867/2015.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners who have been arraigned as accused Nos.7, 6 and 8 have filed these writ petitions for quashing of an order dated 03.04.2017 (Annexure-M) whereunder summons have been issued to them and they have also prayed for quashing of the proceedings pending in C.C.No.867/2015 on the file of I Addl. Chief Metropolitan Magistrate, Bangalore.
2. Facts in brief which has led to filing of these petitions can be crystalised as under:
Respondent herein lodged a complaint on 22.10.2008 with Viveknagar Police Station alleging thereunder that on the nights of 27.09.2008 he (Mr.Kriplani - complainant) along with his two (2) friends Mr. V. Vijay and Mr. Balakrishna were returning home after having dinner at Koramangala and their vehicle bearing registration No.KA-03-MD-3085 was intercepted by the police personnel of Ashok Nagar Traffic Police near Ring Road, Air View Point and were questioned, due to which altercation took place and as a result a challan was issued by the police to said persons to appear before the Court on 02.10.2008 (Gandhi Jayanthi Day) and on being questioned, Traffic Police Sub-Inspector is said to have dragged the complainant out of the car and forcibly removed the ignition key and abused the complainant in foul and filthy language and also by slapping on his face. Complainant was forced to sit in the Hoysala Van and was also beaten up by the police officials, Mr.Prakash – Police Constable, Mr.Shivakumar – Police Constable both from Viveknagar Police Station, Mr. Nanjegowda – Traffic Police Sub Inspector of Ashok Nagar Police Station and Mr. Ratan Kumar – Traffic Warden at the behest of Mrs.Geetha N. Kulkarni, Police Inspector of Ashok Nagar Traffic Police Station. It was alleged that gold chain and mobile phone of complainant was snatched while being assaulted in the Hoysala Van. It is further alleged that due to such altercation a false case was registered against complainant for the offence punishable under Section 353 IPC in Crime No.272/2008.
3. It was further alleged by the complainant that after above said incident at about 12.40 a.m. on 28.09.2008 he was taken to Viveknagar Police Station where he was assaulted by the police and was made to sit on the floor in the cell of police station. It was further alleged that at about 12.00 noon (28.09.2008) he was produced before jurisdictional Magistrate and released on bail. He further alleges that before being taken to the Magistrate’s house police had instructed the complainant to inform his family members to secure a set of clothes as the shirt he was wearing was completely soaked with blood due to assault. He further alleges that he was taken to Boring Hospital for treatment for injuries and on being released on bail, he consulted the doctor and was informed that he had suffered fracture of nasal bone and advised surgery and as such he underwent surgery on 06.10.2008 at Hosmat Hospital. Inspite of requesting the police to return mobile and gold chain, they did not return. On these lines a complaint came to be lodged on 22.10.2008, which was registered in Crime No.290/2008 against Nanjegowda, Sub-Inspector, Ashok Nagar Traffic Police Station, Shivakumar and Prakash, Police Constable, Driver of Hoysala vehicle respectively and others. Said complaint was investigated and charge sheet came to be filed against Traffic Warden - Ratan Kumar and his wife – Geetha N. Kulkarni alleging that they had committed theft of articles belonging to complainant under Section 392 r/w Section 201 of IPC in C.C.No.22588/2009. Complainant filed a protest memo under Section 200 Cr.P.C. in PCR No.123/2009. Simultaneously, complainant also filed a petition in Crl.P.No.6615/2013 challenging the order dated 21.04.2009 taking cognizance. The Coordinate Bench by order 25.03.2014 quashed the charge sheet filed in C.C.No.22588/2009 and remitted the matter for holding an enquiry by Criminal Investigation Department (CID), Special Investigation Division.
4. The CID police investigated the matter and filed charge sheet against Sri. Ratan Kumar, Sri.Nanjegowda, Sri Pakash Maregowda and Sri.Shivakumar. Accordingly, summons came to be issued to said accused persons. However, complainant filed a protest memo before the learned Magistrate with a prayer to take cognizance of offence against other accused persons named in the said protest memo. Same came to be rejected and as such complainant approached this Court in Crl.P.No.1383/2016. Coordinate Bench by order dated 22.09.2016 allowed the petition and directed the trial Court “to revisit the complaint and charge sheet and then take further steps in accordance with law, in its discretion.” It was also observed “Court below may also examine whether the allegations are all acts which are carried out in the course of discharge of duty or otherwise and to decide if sanction is warranted under Section 197 Cr.P.C.”
5. On such order of remand being passed by learned Magistrate by order dated 18.11.2016 directed the petitioners herein to be arraigned as accused Nos.7, 6 and 8 respectively and took cognizance of the offences punishable under Sections 393, 392, 201, 323, 326, 397, 114, 119 r/w Section 149 IPC in C.C.No.867/2015.
6. Being aggrieved by the said order petitioners herein had approached this Court in Crl.P.Nos.8942/2016, 8943/2016 and 8944/2016 contending interalia that order passed taking cognizance is without proper application of mind; petitioners had performed their duties in discharge of their official duty for which sanction under Section 197 Cr.P.C. is a condition precedent and same is not obtained; order passed in haste. Said contentions urged came to be considered by the Coordinate Bench and by order dated 31.03.2017 (Annexure-L) rejected the petition, which order has attained finality.
7. On production of certified copy of order passed in Crl.P.No.8942/2016 and connected matters, summons came to be reissued on 03.04.2017. Hence, these petitions are filed by the petitioners.
8. I have heard the arguments of Sri. Ashok Haranahalli, learned Senior Counsel, Sriyuths. Venkatesh P. Dalwai, P.N.Hegde, learned counsel appearing for petitioners and Sri. S. Rachaiah, learned HCGP appearing for first respondent and Sri. Kriplani M, second respondent appearing in person.
9. It is the contention of learned Advocates appearing for petitioners that order issuing process by taking cognizance of the offence is contrary to law and documents on record. It is further contended that protest memo dated 11.02.2016 filed by the complainant would indicate that it is styled as a private complaint and as such on the basis of a private complaint cognizance cannot be taken, that too without recording the sworn statement of complainant and as such proceedings are liable to be quashed.
10. Yet another contention raised is that proceedings are vitiated for want of sanction being issued under Section 170 of The Karnataka Police Act, 1963 (for short ‘Police Act’), and there being no prior sanction proceedings are liable to be quashed. It is further contended that protection granted to petitioners under Section 170 of Police Act is substantive and violation of the same would be hit by Article 21 of the Constitution of India. They would also submit that act of complainant is vindictive and continuation of proceedings against petitioners would be oppressive and onerous and same is liable to be quashed. In support of their submission judgment in the case of VIRUPAXAPPA VEERAPPA KADAMPUR Vs. STATE OF MYSORE reported in AIR 1963 SC 849 has been relied upon.
11. Per contra, Sri. Kriplani.M, second respondent appearing in person would support the continuation of proceedings against petitioners and would contend that present writ petitions are in disguise intra-court appeals/review petitions cloaked with the garb of writ petition and same is not maintainable.
11.1 He would also submit that sanction under Section 170 of the Police Act is not necessary for the jurisdictional Magistrate to take cognizance of the offence, particularly when the acts alleged of petitioners is not in discharge of official duties and even otherwise, these aspects have to be decided by the trial Court after appreciating the evidence and as such it can be applied at a later stage.
11.2 He would also draw the attention of Court to the fact that cognizance of the offence have been taken against accused Nos.1 to 4 was prior to rejection of grant of sanction and as such Magistrate cannot and does not have the power either to recall or withdraw the said order and remedy open to those accused persons (A-1 to A-4) is to invoke the extraordinary jurisdiction of this Court and as such refusal to grant sanction to prosecute A-1 to A-4 would have no bearing whatsoever on the facts and circumstances of the instant case. On these grounds, by relying upon the following judgments he prays for dismissal of these writ petitions.
(i) Criminal Petition No.3571/2013 disposed of on 16.09.2014: Sri. Bettegowda Vs. Sri.
Seetharam (ii) 1998 (4) Kar. L. J. 259:
NARAYANASWAMY vs. BOLE GOWDA (iii) 1973(1) Mys. L.J.94: G.GOVINDARAJU vs. BABU POOJARY (iv) AIR 1964 SC 269: NAGRAJ vs. STATE OF MYSORE (v) W.P.No.28215/2010-disposed of on 15.07.2013 : P ANJI BABU VS. GOVT. OF ANDHRA PRADESH AND OTHERS (vi) (2002) 4 SCC 388: RUPA ASHOK HURRA vs. ASHOK HURRA AND ANOTHER (vii) AIR 1967 SC 1: NARESH SHRIDHAR MIRAJKAR VS. STATE OF MAHARASHTRA AND ANOTHER (viii) AIR 1967 SC 1167: RAGHUBANS DUBEY vs. STATE OF BIHAR (ix) AIR 2001 SC 43: HARI SINGH MANN vs. HARBHAJAN SINGH BAJWA AND OTHERS (x) AIR 1981 SC 1385: NARESH AND OTHERS vs. STATE OF U.P.
(xi) AIR 1979 SC 87: STATE OF ORISSA vs. RAM CHANDER AGARWALA ETC.
(xii) 1997 CRI.L.J. 4029: BIBEKANANDA DAS vs. STATE (xiii) 1997 CRI.L.J.1307: UTTAM AND OTHERS vs. STATE OF MAHARASHTRA AND OTHERS (xiv) 1994 CRI.L.J. 660: HADIANI DEI vs. STATE OF ORISSA AND OTHERS (xv) 1995 CRI. L.J. 150: CHELLAPPAN vs. STATE OF KERALA (xvi) (2004) 7 SCC 338: ADALAT PRASAD vs. ROOPLAL JINDAL AND OTHERS (xvii) AIR 2004 SC 4711: SUBRAMANIUM SETHURAMAN vs. STATE OF MAHARASHTRA AND ANOTHER 12. Sri. S. Rachaiah, learned HCGP appearing for first respondent would rely upon the impugned order as well as order dated 31.03.2017 passed by this Court in Crl.P.No.8942/2016 and connected matters and seek for dismissal of these petitions.
13. Before proceeding to adjudicate the rival contentions raised at the bar, it would be apt, appropriate and necessary to extract the order passed by Coordinate Bench on 25.04.2017 while considering the prayer for vacating the interim order of stay, wherein a plea had been raised that what came to be considered in Crl.P.No.8942/2016 and connected matters disposed of on 31.03.2017 related to the limited issue of sanction under Section 197 Cr.P.C. and not the sanction required to be obtained under Section 170 of the Police Act. It reads:
“7. Therefore, the question is whether the present petitions ought to be rejected outright or the interim order of stay granted earlier should be vacated on the footing that the petitioners have suffered an order of this court to the effect that prior sanction under Section 197 of the Code of Criminal Procedure was not required to prosecute the petitioners in respect of the acts alleged against them.
8. Notwithstanding the earlier opinion expressed by a coordinate bench that the acts of the petitioners fell outside the discharge of their official duties and therefore sanction for prosecution under Section 197 of the Code of Criminal Procedure was not required is apparently based on the language of Section 197 which indeed would enable the court to decide whether the acts alleged would fall within the discharge of their duties or otherwise.
9. It is however to be noticed that even under Section 197(3) it is evidence that the State Government may, by notification, direct the provisions of sub-section (2) which mandates that 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 could be extended to such 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. Therefore, it is contemplated even there under that the armed forces are put under a different category of public service. Therefore, if this is read in conjunction with Section 170 of the Karnataka Police Act it would appear that the police force stands on a different footing, when the occasion arises in addressing acts performed by them in the course of discharge of their duties. This apparently has not been addressed by the coordinate bench on the earlier occasion. The scope and purport of Section 170 of the Karnataka Police Act has not been considered and therefore the said order is rendered sub-silentio in so far as Section 170 of the Karnataka Police Act is concerned. Consequently, the application for vacating stay is rejected.”
It is in the aforesaid background, contention with regard to maintainability of petitions will have to be examined.
14. It would be appropriate to note at this juncture itself that Hon’ble Apex Court in the case of DEVENDRA AND OTHERS vs. STATE OF UTTAR PRADESH AND ANOTHER reported in (2009) 7 SCC 495 has held that principles of resjudicata would have no application in criminal proceedings. Hence, contention raised by second respondent with regard to maintainability of these writ petitions cannot be accepted and it stands rejected.
15. It is no doubt true that this Court would not sit in appeal over the order dated 31.03.2017 passed in Crl.P.No.8942/2016 and connected matters. However, at the same time, this Court cannot lose sight of the fact of findings recorded in the said order with regard to ‘sanction’ in the background of Section 197 Cr.P.C. In fact, at the stage of issuance of summons to accused Nos.1 to 4 after taking cognizance of the offence by order dated 09.01.2015 passed by learned Magistrate had been challenged by the very same complainant before this Court in Crl.P.No.1383/2016 contending interalia that though there was sufficient material already on record for taking cognizance of the offence against all the accused, same had been overlooked. This contention found in favour of complainant and as such said criminal petition came to be allowed by order dated 22.09.2016 by observing that “charge sheet material cannot be mechanically accepted while ignoring relevant material which would require other persons to be made as the accused as well”. By observing thus, the following order was passed:
“Consequently, the petition is allowed. The court below is directed to re-visit the complaint and the charge- sheet and then to take further steps in accordance with law, in its discretion. The court below may also examine whether the allegations are all acts which are carried out in the course of discharge of duty or otherwise and to decide if sanction is warranted under Section 197 Cr.P.C.”
16. It is on such direction issued by the Coordinate Bench, learned Magistrate has re-examined the entire charge sheet material and found that there was sufficient material to proceed against petitioners herein also, vide order dated 18.11.2016. This order was challenged by petitioners in Crl.P.Nos.8942/2016, 8943/2016 and 8944/2016 raising the contentions as already noticed hereinabove, including the issue regarding sanction required to be obtained under Section 197 Cr.P.C. and the following findings came to be recorded:
“14. Coming to the question of sanction under section 197 Cr.P.C., is concerned, the learned counsel for the petitioners have referred to the above authorities wherein the necessity of sanction under section 197 of Cr.P.C., is held mandatory when the acts alleged against the public servants are found to have been performed in discharge of their official duties. The law on the issue of sanction is now well settled that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessary harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. However, in order to qualify for protection under this provision, there must be a discernible connection between the act complained of and the powers and duties of a public servant. As explained in the above decisions, the act complained of many fall within the description of the action purported to have been done in performing the official duty. Therefore, if the alleged act or omission of the public servant can be shown to have a reasonable connection, interrelationship or is inseparably connected with discharge of his duty, he becomes entitled for protection of sanction.
15. In the instant case, the acts against the petitioners cannot be said to have been performed by them in discharge of their official duties.
According to the prosecution, on the date of the incident, on the direction of the Addl. Commissioner of Police, the Police Officials were conducting routine patrol at Koramangala, Domlur Inner Ring Road at Air-view point to keep a check on traffic violators and also on persons who were driving vehicles under the influence of alcohol. Admittedly, the complainant – third respondent was not driving the car which was intercepted by the police. There is nothing on record to show that the driver of the said car was either drunk or that any case has been registered against the driver for the drunken driving. The third respondent – complainant was an inmate in the said car. Neither accused Nos.1 to 4 nor the petitioners herein were deputed either to apprehend the complainant or to inquire into any complaint lodged against him. According to the prosecution, during he checking of the vehicle, the complainant interfered in the performance of their duty. But the acts alleged against the petitioners and the other accused do not have any connection to the duties assigned to the petitioners on the date of the incident. Therefore, the learned Magistrate has rightly held that the acts alleged against the petitioners were beyond the purview of their official duties.
17. Learned counsel appearing for petitioners have contended that liberty of petitioners would be affected by non compliance of due process of law, which is a fundamental right guaranteed under Article 21 of Constitution of India and in support of said submission he has drawn the attention of Court to Section 170 of Police Act. A bare reading of above provision makes it explicitly clear that acts of accused complained of must be such that same cannot be separated from the discharge of official duty. But, if there is no reasonable connection between them and performance of those duties, official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. To put it differently, sanction would be mandatory in case where the offence committed by a police officer falls under the category of offences, which could have been committed by him while exercising his power as a police officer under the colour of his office. If the Court is of the opinion that said act falls outside the purview of duty of the police officer, then Court can definitely hold or arrive at a tentative conclusion and for limited purpose, that sanction at that stage is not necessary.
18. The authoritative law enunciated by the Hon’ble Apex Court in the matter of BAKSHISH SINGH BRAR Vs. GURMEJ KUR AND ANOTHER reported in (1987) 4 SCC 663 would have direct bearing on the facts on hand. It reads:
“The question is while investigating and performing his duties as a police officer was it necessary for the petitioner to conduct himself in such a manner which would result in such consequences. In the facts and circumstances of each case protection of public officers and public duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasized that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence. Therefore, the trial should proceed. If necessary the question of sanction under Section 197 may be agitated after some evidence have been noted by the trial Court.”
19. Thus, the question as to whether defence of accused that his act done during the performance of his official duty was reasonable one and not otherwise?, could be examined during the course of trial by giving opportunity to defence to establish it namely, by providing opportunity to petitioners to lead evidence in that regard. Thus, it would be incumbent upon the accused to prove to the satisfaction of the Court during the course of evidence that they were entitle to the said acts in the facts and circumstances of the case. In the event of said plea or defence raised by the accused- petitioners were to be accepted by the trial Court, then it would fall under the definition of Section 170 of Police Act said to have been committed in discharge of his official duty and not in excess of the official duty.
20. In the above referred background, when the order passed by learned Magistrate dated 03.04.2017 is perused, which is admittedly in continuation to order dated 18.11.2016 (which order has reached finality in Crl.P.No.8942/2016 and connected matters by order dated 31.03.2017), the only irresistible conclusion which has to be drawn is that, there are no strong/valid reasons for quashing the proceedings at this stage. However, it would be open to trial Court to examine the plea or defence of accused as to whether the acts of petitioners-accused fall under the colour of office or whether they had done alleged acts while discharging their duty as public servants? after recording the evidence.
With the above said observations, these writ petitions stand dismissed.
SD/- JUDGE DR