IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE MR. JUSTICE P.B.BAJANTHRI CRIMINAL PETITION No.1211 OF 2019 BETWEEN 1. Sri. Shivananda K.S., Sheristhedar, Kanakapura Taluk Office, Kanakapura-562157.
2. Sri. Yasubutha Khan, Booomi operator, Magadi Taluk Office, Magadi, Ramanagara District-562158.
3. Sri. Manjesh, Booomi Village Accountant, Ramanagara Taluk Office, Ramanagara Town, Ramanagara District-562159.
4. Sri. Puttaraju, Revenue Inspector, Harohalli Circle, Kanakapura Taluk, Ramanagara District-562157. (By Sri. G.M.Srinivasareddy, Advocate) AND 1. State of Karnata R/by Kanakapura Town Police, …Petitioners Through State Public Prosecutor, High Court Building, Bengaluru-560001.
2. The Asst. Commissioner Ramanagar Sub-Division, KAS Officer Revinue Deportment Ramanagar-562159.
(By Smt. K.P.Yashodha, HCGP for R1 & R2) …Respondents This Criminal Petition is filed under Section 482 Cr.P.C. praying to quash the FIR and complaint made against the petitioners by the complaint, which was registered by the Kanakapura Town Police Station in Cr.No.154/2018 for the offences punishable under Section 420, 468 read with 149 of IPC pending before the Principal Civil Judge (Jr.Dn) and JMFC, Kanakapura Ramanagara District.
This Criminal Petition coming on for admission this day, the court made the following:
ORDER The petitioners have sought for the following reliefs:
Quash the FIR and complaint made against the petitioners by the complainant, which was registered by the Kanakapura Town Police Station in Crime No.154 of 2018 for the offences punishable under Sections 420 and 468 read with Section 149 of IPC pending before Prl.
Civil Judge (Jr.Dn.) & JMFC Court, Kanakapura, Ramanagara District.
2. The learned counsel for the petitioners has vehemently contended that along with the complaint dated 5.10.2018, sanction from the competent authority under Section 197 of Cr.P.C. is mandatory since the petitioners are officials of the State Government. In support of the aforesaid contention, he relied on two decisions reported in (2013) 10 SCC 705 – Anil Kumar and others Vs. M.K. Aiyappa and another “13. The expression “cognizance” which appears in Section 197 Cr.P.C. came up for consideration before a three-Judge Bench of this Court in State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372, and this Court expressed the following view:
“6. .......10......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 a police officer, or upon his knowledge that such offence has been committed. So far as 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 it 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’ makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The 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 been committed during discharge of his official duty”.
2015 AIR SCW 5432 – International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and Others Vs. Nimra Cerglass Technics (P) Ltd and another.
“24. Second appellant-Dr. S.V. Joshi was the Associate Director. Third appellant Dr. G. Sunderarajan was the Director of ARCI and both of them were acting in their official capacity. Appellants No. 2 and 3 neither acted in their personal capacity nor stood to receive any personal monetary benefits from the transfer of said technology. Appellants No.2 and 3 were representatives of ARCI which is a grant-in-aid research and development institute under the Ministry of Science and Technology, Government of India and hence previous sanction as mandated under Section 197 Cr.P.C. must have been obtained before proceeding against them as their act was only in discharge of their official duties. In this regard, our attention was drawn to a communication from Ministry of Science and Technology indicating that for initiating criminal proceeding against appellants No. 2 and 3, permission is required and the said communication reads as under:
“ ….. They have both been appointed by the Government of India and are governed by all rules and regulations of the Government of India….
It is further stated that we have examined all the actions taken by Dr. G. Sundararajan and S.V. Joshi in relation to the activities pertaining to the Technology Transfer Agreement dated 18/06/1999 between ARCI and M/s Nimra Cerglass, Hyderabad and are of firm view that these actions were taken by the above officers while discharging their official duty in good faith and in the best interest of ARCI.
Therefore, for initiating criminal proceeding against Dr. G. Sundararajan and Dr. S.V.Joshi, Government of India permission is required.” The alleged acts of the appellants No. 2 and 3 were committed while acting in discharge of their official duties, sanction from the competent authority was necessary before initiating the criminal prosecution against them. Since we have held that from the averments in the complaint, the essential ingredients of dishonest intention is not made out, we are not inclined to further elaborate upon this point”.
3. The contention of the petitioners and the cited decisions has no relevance for the reasons that at what stage Section 197 is required to be taken note of? The contention of the petitioner that at the time of filing complaint, Section 197 is required to be invoked if any complaint is made against the public servant. Magistrate has not taken cognizance. The concept of Section 197 does not get immediately attracted on institution of complaint case as held by the Supreme Court in the case of RAKESH KUMAR VS. STATE OF BIHAR, (2006)1 SCC 557. It was essential for the learned Judge to correctly decide as to whether the previous sanction from the Government under Section 197 of Cr.P.C., was required to be taken by concerned authority, before taking cognizance and passing an order issuing summons to the petitioners for their presence, as held in the case of N.K.GANGULY VS. CBI, (2016)2 SCC 143 (para-35).
The cited decisions are not related to obtaining sanction under Section 197 Cr.P.C. at the time of filing complaint.
Therefore the cited decisions do not assist the contention of the petitioner that complaint must be supported by sanction under Section 197 Cr.P.C. of the competent authority in respect of public servants like petitioners. Accordingly petitioners have not made out a case. Petition stands dismissed.
Sd/- JUDGE sd