IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON' BLE MR.JUSTICE R DEVDAS CRIMINAL PETITION NO.5085 OF 2016 BETWEEN 1 . M.D. KRISHNEGOWDA S/O. LATE. DYAPEGOWDA, AGED ABOUT 61 YEARS, NO. 1662, 18TH MAIN, 32ND CROSS, BANASHANKARI II STAGE, BENGALURU 560070.
(VIDE ORDER DATED 06.08.2019 PROCEEDING AGAINST PETITIONER NO.1 IS ABATED) 2 . HUCHAPPA S/O. LATE. CHENNAIAH, AGED ABOUT 60 YEARS, 2ND CROSS, 2ND MAIN, HEGGANAHALLI EAST, PEENYA II STAGE, BENGALURU 560058.
3 . SMT. L USHA W/O. M.D. KRISHNAGOWDA, AGED ABOUT 50 YEARS, NO. 1662, 18TH MAIN, 32 CROSS, BANASHANKARI II STAGE, BENGALURU 560070.
4 . SMT. THEJASWINI W/O. L. SRINIVAS, 34 YEARS, NO. 732, 3RD MAIN, PADMANABHA NAGAR, BENGALURU 560070.
(BY SRI. M J ALVA, ADVOCATE) AND STATE OF KARNATAKA BY UPPARPET POLICE, CHIKKAPET SUB-DIVISION, UPPARPET, BENGALURU - 560009.
(BY SRI. MAHESH SHETTY, HCGP) ...PETITIONERS …RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CR.P.C. PRAYING TO SET ASIDE THE ORDERS DATED 03.05.2016 PASSED BY THE LXI ADDL. CITY CIVIL AND S.J., BANGALORE IN CRL.RP.NO.116/2013 WHICH IS PRODUCED AT ANNEXURE-A AND THE ORDERS DATED 28.02.2013 PASSED BY THE IX A.C.M.M., BANGALORE IN C.C.NO.52783/2010 WHICH IS PRODUCED AT ANNEXURE- B.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R.DEVDAS J., (ORAL):
This Criminal Petition is filed under section 482 of Cr.P.C., assailing the order dated 03.05.2016 passed by the LXI Additional City Civil and Sessions Judge, Bengaluru in Cr.R.P.No.116/2013 and the order dated 28.02.2013 passed by the IX ACMM, Bengaluru in C.C.No.52783/2010.
2. It is necessary to note that petitioner No.1- Sri.M.D.Krishnegowda passed away on 20.08.2017, during the course of the proceedings and therefore the criminal petition does not survive for consideration insofar as petitioner No.1 is concerned.
3. Learned counsel for the petitioner submits that the allegation against the petitioners No.1 and 2 is that the deceased petitioner No.1 was a Village Accountant and petitioner No.2 was a Revenue Inspector at Chikkatogur Village, Doddatogur Circle, Begur Hobli, Bengaluru South Taluk and by misusing the official powers, petitioners No.1 and 2 changed the beneficiaries list of sites and replaced the names of petitioners No.3 and 4 in the place of one Ashwathappa and Sarojamma, who are CWs.2 and 3 and petitioner No.1 by forging the signature of CW.10-Nanjundaiah got sanctioned the site in his own name by creating the documents and without giving information to the Government and without obtaining prior permission from the Government, in collusion with petitioners No.3 and 4 gave false and wrong information and got inserted their names in the beneficiaries list of sites and therefore, the petitioners are charged with the offence punishable under Section 465, 468, 177 and 420 of IPC.
4. Learned counsel for the petitioners submits that since it is a warrant case, when the matter came up for hearing before charge, an application seeking discharge was filed before the Magistrate and the learned Magistrate by order dated 28.02.2013 rejected the discharge application. When the same was questioned before the Sessions Court, in Cr.R.P.No.116/2013, the Sessions Judge by order dated 03.05.2016 dismissed the said criminal revision petition. Therefore, the petitioners are before this Court calling in question the orders passed by the learned Magistrate as well as the Sessions Judge.
5. Learned counsel for the petitioners submits that the proceedings are hit by the principles of double jeopardy. In this regard, it is contended that the Hon’ble Upa-Lokayukta was ceased of the very same case and the Hon’ble Upa-Lokayukta had issued an endorsement as regards petitioners No.1 on 25.11.2011 discharging petitioner No.1 of the allegations. It was therefore submitted before the learned Magistrate that since the allegations arise out of the same complaint, the benefit that was extended to petitioner No.1 should have also been extended to other petitioners. Learned Magistrate has considered the submissions of the petitioners and gave a finding that one T.L.Aneppa was the complainant and he had made allegations against (accused No.1) petitioner No.1-Sri.M.D.Krishnegowda, in respect Sy.No.67 of Chinnakurchi, Kengeri Hobli, Bengaluru South Taluk. However, the Hon’ble Upa- Lokayukta observing that there was seven years delay in filing the complaint about the transaction and since there was an alternative remedy for challenging the order passed before the proper forum, the proceedings were dropped holding that there is no need to further investigation and the materials produced by the said T.L.Anepps is not sufficient to show misuse of powers by petitioner No.1 herein. Further, the learned Magistrate observed that there are four accused persons in the present case and the prosecution is alleging that all the four accused persons were involved in land scam and forged the documents, signatures and misused the powers by using the official seal of the office of the Tahsildar, Bengaluru South. It was also held that since the Hon’ble Upa-Lokayukta has not enquired into the matter and into all the allegations, the contentions that the proceedings would amount to double jeopardy was rejected.
6. In the Criminal Revision Petition, the Sessions Court while dealing with the very same contentions, has held that Article 20(2) of the Constitution of India provides that no person shall be prosecuted and punished for the same offence more than once. Whereas Section 300 of Cr.P.C., provides that no person should be tried and convicted for the same offence or even for default offence on the same facts. The Sessions Court also observed that the Hon’ble Upa-Lokayukta declined to further prosecute the matter on the ground that an alternative remedy by challenging the order of the Tahsildar was permissible and available under law. The Sessions Court therefore holding that there was no trial conducted nor the accused were acquitted on the case being tried, the question of double jeopardy would not be attracted in this case.
7. Learned counsel for the petitioners further submits that the case as against petitioner No.2, who was the Government servant is required to be quashed since there was no sanction obtained in terms of Section 197 of Cr.P.C., It is seen that the Sessions Court has placed reliance on a decision of this Court reported in ILR 1999 Karnataka 2669, wherein it was held that the Government Servants committing offences like forgery, fabrication of documents and misappropriation are not entitled for any protection. It was further held that the requirement of sanction by competent authority of appropriate Government is an assurance and protection to the honest officers who do official duty to further public interest. However, the performance of public duty under color of public duty cannot be camouflaged to commit crime, therefore, in the case on hand, since the petitioners No.1 and 2 being the public servants and misused their office and having committed the acts of forgery and fabrication, cannot seek protection under Section 197 of Cr.P.C.
9. Having heard the learned counsel for the petitioners and learned HCGP, this Court is of the considered view that no infirmity could be found in the impugned orders. The Hon’ble Apex Court in the case of Amal Kumar Jha Vs State of Chhattisgarh and Another reported in (2016) 6 SCC 734 is of the similar view that when an allegation is made against a public servant, of acts of corruption, fraud, etc., the protection provided under Section 197 of Cr.P.C., to such public servant, who have not acted in accordance with law and in the course of furtherance of duty are not eligible for such a protection. The protection under Section 197 of Cr.P.C., is restricted only to acts in furtherance of the duty cast on the public servants. When clear allegations of forgery or corruption are made against the public servants, the public servants cannot seek protection under Section 197 of Cr.P.C.
10. For the reasons stated above, this Court is of the considered opinion that the petition is required to be rejected and is accordingly rejected.
At this stage, learned counsel for the petitioners make an earnest request to this Court to direct the Trial Court to proceed with the matter expeditiously since, the charge sheet was filed in the year 2010 and on the ground that the Tahsildar is not available or is not able to attending the proceedings, the matter is being adjourned.
The Trial Court is therefore, directed to proceed with the matter as expeditiously as possible and conclude the trial at the earliest.
SD/- JUDGE DL