IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR CRIMINAL PETITION No.9196/2016 BETWEEN N.B. Vrishabendrappa, S/o Basavarajappa, Aged about 48 years, Flat #10, #85, Panaroma Point I apt., V Cross Road, Banashankari I Stage, Bengaluru – 560 050. Petitioner (By Sri.Ashok Haranahalli, Senior Advocate for Sri. Srinivas Rao S.S., Adv.) AND 1. The State of Karnataka by, Malur Police Station, Kolar District, Rep. by SPP, High Court Building, Bengaluru.
2. Munianjanappa, S/o Narayanappa, Aged about 49 years, Executive Officer, Malur Taluk Panchayat, Kolar District. Respondents (By Sri. Mahesh Shetty, HCGP for R1; R2 served and unrepresented) This Criminal Petition is filed under Section 482 of Cr.P.C. praying to quash the charge sheet filed by the first respondent police in Crime No.17/2005 and all further proceedings in C.C.No.17/2005 and all further proceedings in C.C.No.252/2009 on the file of the Principal Civil Judge (Jr. Dn.) and J.M.F.C., Malur, for offences P/U/S 409, 420, 465, 468, 471, 474 and 109 of IPC against the petitioner.
This Criminal Petition coming on for Admission this day, the Court made the following:
ORDER Heard Sri.Ashok Haranahalli, learned senior counsel, learned counsel for the petitioner and learned HCGP.
2. The petitioner is before this Court praying for quashing of charge sheet in C.C.No.252/2009 arising out of Crime No.17/2005 on the file of learned Principal Civil Judge, Junior Division and Judicial Magistrate First Class, Malur, for the offences punishable under Sections 409, 420, 465, 468, 471, 474 and 109 of IPC.
3. The learned senior counsel inviting the attention of this Court to running page No.25 at unnumbered para would submit that the allegations made against the petitioner are that he has not performed his duty and has omitted to perform the duty cast upon him and thereby has failed to discharge his duties. He would further submit that if the allegations are that the petitioner is guilty of omissions and commissions in discharging his duties then, it is a case where the provisions of Section 197 of Cr.P.C. gets attracted and no useful purpose would be served if he were to be proceeded against for the omissions and commissions without obtaining the mandatory prior sanction. He would further contend that the Government which is the Sanctioning Authority had conducted an enquiry and after conducting enquiry, the Government has absolved the petitioner of any guilt, on the premise that he was functioning as a Second Division Assistant only and was not required to pass the bills. He would also place reliance on the ruling of Hon’ble Apex Court rendered in the case of State of Maharashtra vs. Dr. Budhikota Subbarao reported in (1993) 3 Supreme Court Cases 339, inviting the attention of this Court to paragraph No.5 which has held as under:-
“5. Prior to examining if the courts below committed any error of law in discharging the accused it may not be out of place to examine the nature of power exercised by the court under Section 197 of the Code of the extent of protection it affords to public servant, who apart, from various hazards in discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecutions. Section 197 (1) and (2) of the Code reads as under:-
“197. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction – (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.
(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.”
The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Sessions under Section 193, as it cannot take cognizance, as a Court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned the cognizance of any offence by any court is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but is also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, ‘no court shall take cognizance of such offence except with the previous sanction’. Use of the words, ‘no’ and ‘shall’ make it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint cannot be taken notice of. According to Black’s Law Dictionary the word ‘cognizance’ means ‘jurisdiction’ or ‘the exercise of jurisdiction’ or ‘power to try and determine causes’. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.”
The law in this regard is well settled.
4. Per contra learned HCGP would submit that the issue regarding requirement of sanction may be remitted back to the trial court to examine the same before proceeding further with the trial.
5. The submission of the learned HCGP is placed on record.
6. In view of the above discussions, Criminal petition is disposed of by directing the trial Court to examine the issue regarding requirement of prior sanction before proceeding further with the trial.
Ordered accordingly.
Sd/- JUDGE MH/-