Challenge
2. Challenge made in this appeal is to the order dated 25.11.2020 passed by the High Court of Karnataka at Bengaluru in Criminal Petition No.4998 of 2020 (Sri. Mallikarjuna Vs. State of Karnataka) quashing the complaint dated 19.12.2016 lodged by the appellant; the chargesheet in C.C. No.116 of 2018 including the order dated 28.03.2018 passed therein by the learned Judicial Magistrate First Class, Belur.
Facts
3. Facts lie within a very narrow compass. The appellant as the complainant lodged a first information report dated 19.12.2016 (referred to as ‘the complaint’ in the impugned order) alleging that respondent No.2 and another were irregularly creating documents of property in the name of dead person despite knowing the fact that those were fake documents, such as, death certificate, family tree of the original successor of land of the appellant etc. for illegal gain. The said first information was received and registered by Haleebedu Police Station, Belur as Crime No. 323/2016 under Sections 409, 419, 420, 423, 465, 466, 467, 468, 471 and 473 of the Indian Penal Code, 1860 (IPC) read with Section 149 and Section 34 thereof.
Quash preferred
5. Respondent No.2 filed a petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.PC) for quashing of the said FIR before the High Court of Karnataka at Bengaluru (‘High Court’ for short). The same was registered as Criminal Petition No.9580 of 2017.
Quash dismissed by the Hon’ble High Court
5.1 The High Court in its order dated 05.01.2018 noted that the specific case of the appellant was that land admeasuring 1 acre 13 guntas in survey No.7/6 situated at Chattanahalli Village, Halebeedu Hobli, Belur Taluk, Hassan District belonged to the appellant and his family members. The same was given to accused No.1 for the purpose of cultivation. Accused No.1 in 3 collusion with revenue officials including accused No.2 (respondent No.2 herein) created lot of fake documents in favour of respondent No.1. High Court vide the order dated 05.01.2018 observed that there were specific and serious allegations against respondent No.2 even as to creation of death certificate of a living person. It was observed that a reading of the FIR made out a case for investigation and that it was too premature to interfere with such FIR. Adverting to the case of Lalita Kumari Vs. Govt. of Uttar Pradesh, (2014) 2 SCC 1, the High Court did not interfere though granted liberty to respondent No.2 to seek his legal remedy in the event any adverse report was made.
Charge sheet filed against the accused
6. Sub Inspector of Police, Haleebedu Police Station, who was the investigating officer submitted final report under Section 173 of the Cr.PC in the Court of the Additional Civil Judge (Junior Division) and Judicial Magistrate First Class, Belur on 20.03.2018 which was registered as chargesheet No.12/2018. The following persons have been named as accused in the chargesheet:
i. Accused No.1 – Ramegowda
ii. Accused No.2 – Mallikarjuna (respondent No.2)
iii. Accused No.3 – Manjunath Aras
They have been charged under Sections 471, 468, 467, 465, 420, 409, 466 and 423 read with Section 34 of IPC. The chargesheet also mentions the names of thirty-one witnesses.
Respondent/accused again approached High court and set aside the charge sheet and other order
8. Respondent No.2 again approached the High Court by filing a petition under Section 482 Cr.PC for quashing the complaint dated 19.12.2016 as well as the chargesheet and the order dated 28.03.2018 (what is the order dated 28.03.2018 has not been mentioned by respondent No.2). It may be mentioned that upon the chargesheet being filed in the court of the Additional Civil Judge (Junior Division) and Judicial Magistrate First Class, Belur, the same was registered as C.C. No.116 of 2018. The quash petition of respondent No.2 was registered as Criminal Petition No.4998 of 2020. The High Court observed that respondent No.2 was a public servant. The offence complained against him, as per the prosecution, was committed while discharging his duties as a public servant. Investigating officer had sought for sanction to prosecute respondent No.2 but sanction was denied. In such circumstances, High Court held that since sanction was refused, prosecution for criminal offence against a public servant cannot continue. Consequently, the complaint, the chargesheet as well as the order dated 28.03.2018 were set aside by the High Court vide the order dated 25.11.2020.
15. Submissions made by learned counsel for the parties have received the due consideration of this court.
Question involved: Whether sanction required to prosecute respondent no.2?
16. The question for consideration in this appeal is whether sanction is required to prosecute respondent No. 2 who faces accusation amongst others of creating fake documents by misusing his official position as a Village Accountant, thus a public servant? The competent authority has declined to grant sanction to prosecute. High Court has held that in the absence of such sanction, respondent No. 2 cannot be prosecuted and consequently has quashed the complaint as well as the chargesheet, giving liberty to the appellant to assail denial of sanction to prosecute respondent No. 2 in an appropriate proceeding, if so advised.
Section 197 Cr.P.C – Sanction explained
17. Section 197 Cr.P.C deals with prosecution of judges and public servants.
18. As per sub section (1) of Section 197 where 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 of the Central Government or the State Government, as the case may be.
19. The ambit, scope and effect of Section 197 Cr.PC has received considerable attention of this court. It is not necessary to advert to and dilate on all such decisions. Suffice it to say that the object of such sanction for prosecution is to protect a public servant discharging official duties and functions from undue harassment by initiation of frivolous criminal proceedings.
20. In State of Orissa Vs. Ganesh Chandra Jew, (2004) 8 SCC 40, this court explained the underlying concept of protection under Section 197 and held as follows:
“7. ……………………………..”
21. This aspect was also examined by this court in Shambhu Nath Misra (supra). Posing the question as to whether a public servant who allegedly commits the offence of fabrication of records or misappropriation of public funds can be said to have acted in the discharge of his official duties. Observing that it is 12 not the official duty to fabricate records or to misappropriate public funds, this court held as under:
“5. ………………………….”
22. Even in D. Devaraja (supra) relied upon by learned counsel for respondent No. 2, this court referred to Ganesh Chandra Jew (supra) and held as follows:
“35. In State of Orissa v. Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004 SCC (Cri) 2104] this Court interpreted the use of the expression “official duty” to imply that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. Section 197 of the Code of Criminal Procedure does not extend its protective cover to every act or omission done by a public servant while in service. The scope of operation of the section is restricted to only those acts or omissions which are done by a public servant in discharge of official duty.”
23. Thus, this court has been consistent in holding that Section 197 Cr.P.C does not extend its protective cover to every act or omission of a public servant while in service. It is restricted to only those acts or omissions which are done by public servants in the discharge of official duties.
24. After the hearing was over, learned counsel for respondent No.2 circulated a judgment of this Court in A. Srinivasulu Vs. State Rep. by the Inspector of Police, 2023 SCC OnLine SC 900 in support of the contention that a public servant cannot be prosecuted without obtaining sanction under Section 197 of Cr.P.C. We have carefully gone through the aforesaid decision rendered by a two Judge Bench of this Court in A. Srinivasulu (supra). That was a case where seven persons were charge sheeted by the Central Bureau of Investigation (CBI) for allegedly committing offences under Section 120B read with Sections 420, 468, 471 along with Sections 468 and 193 IPC read with Sections 13 (2) and 13(1)(d) of the Prevention of Corruption Act, 1988 (for short ‘P.C. Act, 1988’). Four of the accused persons being A-1, A-2, A-3 and A-4 were officials of Bharat Heavy Electricals Limited, a public sector undertaking and thus were public servants both under the IPC as well as under the P.C. Act, 1988. Accused No.1 had retired from service before filing of the chargesheet. Insofar accused Nos. 3 and 4, the competent authority had refused to grant sanction but granted the same in respect of accused No.1. It was in that context that this court considered the requirement of sanction under Section 197 Cr.P.C qua accused No.1 and observed that accused No.1 could not be prosecuted for committing the offence of criminal conspiracy when sanction for prosecuting accused Nos.3 and 4 with whom criminal conspiracy was alleged, was declined. This court held as follows:
“52. It must be remembered that in this particular case, the FIR actually implicated only four persons, namely PW-16, A-3, A-4 and A-5. A-1 was not implicated in the FIR. It was only after a confession statement was made by PW-16 in the year 1998 that A-1 was roped in. The allegations against A-1 were that he got into a criminal conspiracy with the others to commit these offences. But the Management of BHEL refused to grant sanction for prosecuting A-3 and A-4, twice, on the ground that the decisions taken were in the realm of commercial wisdom of the Company. If according to the Management of the Company, the very same act of the co-conspirators fell in the realm of commercial wisdom, it is inconceivable that the act of A-1, as part of the criminal conspiracy, fell outside the discharge of his public duty, so as to disentitle him for protection under Section 197(1) of the Code.”
24.1 Admittedly, facts of the present case are clearly distinguishable from the facts of A. Srinivasulu (supra) and, therefore, the said decision cannot be applied to the facts of the present case.
A view can be taken that manufacturing of such documents or fabrication of records cannot be a part of the official duty of a public servant
25. The question whether respondent No.2 was involved in fabricating official documents by misusing his official position as a public servant is a matter of trial. Certainly, a view can be taken that manufacturing of such documents or fabrication of records cannot be a part of the official duty of a public servant. If that be the position, the High Court was not justified in quashing the complaint as well as the chargesheet in its entirety, more so when there are two other accused persons besides respondent No.2. There is another aspect of the matter. Respondent No.2 had unsuccessfully challenged the complaint in an earlier proceeding under Section 482 Cr.P.C. Though liberty was granted by the High Court to respondent No.2 to challenge any adverse report if filed subsequent to the lodging of the complaint, instead of confining the challenge to the chargesheet, respondent No.2 also assailed the complaint as well which he could not have done.
26. That being the position, we are of the unhesitant view that the High Court had erred in quashing the complaint as well as the chargesheet in its entirety. Consequently, we set aside the order of the High Court dated 25.11.2020 passed in Criminal Petition No. 4998/2020. We make it clear that observations made in this judgment are only for the purpose of deciding the present challenge and should not be construed as our opinion on merit. That apart, all contentions are kept open.
Parties
SHADAKSHARI APPELLANT(S) VERSUS STATE OF KARNATAKA & ANR. RESPONDENT(S) – CRIMINAL APPEAL NO.256 OF 2024 – 17.01.2024 – 2024 INSC 42.
https://main.sci.gov.in/supremecourt/2023/9765/9765_2023_6_1501_49493_Judgement_17-Jan-2024.pdf
Shadakshari vs. State of Karnataka – 9765_2023_6_1501_49493_Judgement_17-Jan-2024
Further study
Police officials cannot file case under section 188 IPC
Whether Criminal case against police officer can be filed without sanction obtained u/s 197 Cr.P.C?
Supreme court explained – yardstick for sanction
Whether i.o has to file final report even after comes to the opinion that there is no case made out?
P.C act – all about sanction and its limitation
Sanction – how sanctioning authority shall examine the case presented?
