IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 5TH DAY OF SEPTEMBER, 2014

BEFORE

THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY

CRIMINAL PETITION No.11637/2011

BETWEEN:

RAVI S/O. DEVA NAIK AGE: 47 YEARS, PRESENTLY WORKING AS CIRCLE INSPECTOR OF POLICE, KOLLEGAL, DIST: TUMKUR

... PETITIONER

(BY SRI. MRUTYUNJAY TATA BANGI, ADV.)

AND:

SHANTOLINI SEEMAOV FERNANDES AGE: 44 YEARS, R/O. BEHIND TAHASILDAR'S OFFICE, HONNAVAR, DIST: KARWAR.

... RESPONDENT

(BY SRI. J. S. SHETTY, ADV.)

THIS CRIMINAL PETITION IS FILED U/S. 482 OF CR.P.C SEEKING TO QUASH ALL PROCEEDINGS ON THE FILE OF THE ADDL. JMFC, KUMTA IN C.C NO.566/2010 U/S. 447, 451, 504, 506, 500 OF THE IPC AND THE ORDER PASSED BY THE DISTRICT AND SESSIONS JUDGE, UTTAR KANNADA, KARWAR IN CRL.RP.NO.1/2011 DATED 26.08.2011.

THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

The petitioner who is arrayed as accused No.1 in C.C.No.556/2010 is before this Court seeking quashing of the proceedings initiated against him for the offences punishable Sections 447, 451, 504, 506 and 500 of the Indian Penal Code and the order passed by the District and Sessions Judge, U.K. Karwar in Criminal Revision Petition No.1/2011 dated 26.08.2011.

2. Earlier, the petitioner was before this Court in Criminal Petition No.11637/2011 seeking quashing of the proceedings in C.C.No.566/2010 and this Court by order dated 06.02.2012, quashed the proceedings initiated by the complainant against the petitioner. Thereafter, the complainant has filed an application for recalling the said order on the ground that, he was not heard in the matter, while the case was posted for hearing. Though the Vakalath was filed on behalf of the complainant/respondent, the name of his Counsel was not shown in the cause list. On enquiry, it was found that the Vakalath was misplaced. However, there is an entry in the concerned book and on considering the said submission, this Court by its order dated 21.08.2014 recalled the order dated 06.02.2012 and restored the matter on board. Accordingly, matter is set down for admission today.

3. With the consent of both the parties, the matter is taken up for final disposal.

4. The respondent/complainant has filed a private complaint on 29.10.2009 in P.C.No.228/2009 alleging that the brother of the

complainant is running a liquor business for past 20 years and has earned good name and fame. It is alleged that the petitioner herein and other accused were threatening the complainant and his brother about lodging criminal and excise cases. It is alleged that, on 27.10.2009 at about 11.30 hours the accused persons entered the house of the complainant and abused his aged mother in front of public and went to police station to register the case and hence this complaint is filed. The impugned action on the part of the petitioner was the subject matter in a private complaint made under Section 200 of Cr.P.C. in P.C.No.228/2009. The said complaint was converted into C.C.No.566/2010 on the file of the learned JMFC, Kumta and the learned Magistrate has taken cognizance and issued summons to the accused.

5. The grounds urged by the petitioner is that, before taking cognizance, the Court below should have examined as to whether the complainant has taken sanction under Section 197 of Cr.P.C. since the petitioner is a public servant. At the relevant point of time, the petitioner was working as a Circle Inspector of Police. Under these circumstances, the complaint should have been dismissed at the initial stage itself, for non-compliance of Section 197. Secondly, as alleged in the complaint that he had committed an offence at 11.30 hours on 27.10.2009, the same is false for the reason that the petitioner participated in the compromise talk which went on 27.10.2009, which the Deputy Commissioner, Dy.S.P., the petitioner and other officials along with villagers have signed the proceedings. It is submitted that the petitioner was in official duty altogether in

different village which is about 60 kms away from the scene of offence. Taking all these grounds he prayed for quashing of the proceedings.

6. These merits have been considered by this Court while allowing the petition and quashing the proceedings. Under these circumstances, what is required is only to look into the case of the complainant and since there is no merit in the complaint, on the face of it, it is to be dismissed.

7. In respect of obtaining sanction, the learned Counsel relied upon the judgments reported in AIR 2013 SCW 3174 in the case of State of Maharashtra through CBI Vs. Mahesh G. Gain and in AIR 2012 SCW 1249 in the case of Dr. Subramanian Swamy Vs. Dr. Manmohan Singh and Anr., wherein, it has

been held that 'Sanction is necessary for prosecution of the accused for the offences under the Act committed while holding office'.

8. The learned Counsel for the respondentcomplainant submitted that, he was not aware as to why his vakalath was not put-up, but on enquiry it is found that the office has misplaced the vakalath. Under these circumstances, rightly this Court has recalled the order. Secondly, sanction for prosecution of the Government official is not required since the complaint made against the petitioner is in respect of the act, which is not in his official capacity. If any action done in his official capacity, then only a sanction is required. In support of the submission, the learned Counsel relied upon the judgment reported in AIR 2009 SC 1404 in the case of Choudhury Parveen

Sultana Vs. State of West Bengal. Secondly, he submitted that the compromise proceedings said to have taken place on 27.10.2009 in a village, which is 60 kms away, is false. Even assuming that of the said proceedings are true, the same has to be proved by examining the witnesses, who are party to the said proceedings. The petitioner has misused his official capacity and created these proceedings. Hence the learned Counsel submits, if at all the petitioner is entitled, it is for him to appear before the learned Judge, to examine the witnesses and to mark the documents to prove the compromise proceedings.

9. I have heard both the Counsel and perused the records and the gone through the reasons assigned by this Court on earlier occasion. This Court considered and held that

the petitioner being a police officer had seized the car belonging to the respondent with huge quantity of liquor in it and registered case against the respondent for the offences under Sections 32 and 34 of the Karnataka Excise Act and Deputy Commissioner of Excise passed an order imposing fine and this is the background for the respondent to initiate criminal proceedings against the petitioner. The submission has been examined in the light of the documents produced in which it is seen that about 27 persons have signed the said document. Further, these documents were not marked before the Court below and not proved by examining the persons who participated in the proceedings, but the same was not considered by this Court. However, a person has got a right to approach the Court by filing a complaint under Section 200 Cr.P.C. which is

meant for other citizen. When a complaint is made we have to legally presume that a person aggrieved is not in the doors of the Court alleging that some persons, including Government officials have committed an offence by abusing their power. When they approached the Court, they should get a judgment or proceedings as per the procedure known to law and initiation of just proceedings to end up in a form of judgment. But this Court should take care in cases where malicious and false allegations are made in order to wreck vengeance against officials in discharging their official work. Keeping the said aspects in mind and also to safeguard the public officers in discharging their official duty, the question as to whether the office or the power has been used for the purpose for which it has been vested. In a case where official work is discharged and it is

found that such act empowers a person causing injury, then sanction is required from its employer – the State Government who has got power to remove such person for the Act done on behalf of the Government. But at the same time, if any officer or authority misused their power and committed an offence, which they are not supposed to do and the alleged work comes altogether out of their jurisdiction, then the sanction is to be dispensed with and it is not mandatory. But the gist of the complaint has been examined, in which it is alleged that, on a particular date and time, the petitioner, with other accused, went and threatened the mother of the complainant with his revolver and abused her. These are all serious offences, which do not come within the purview of official duties. If it is found true, then the accused person has to be punished. But if it is found untrue, then the complainant has to be punished for making false statement against a Government official and also filing the complaint under Section 200 of Cr.P.C.

10. The Hon'ble Supreme Court in the judgment reported in AIR 2009 SC 1404 (supra) has held that;

"All acts done by a public servant in the purported discharge of his official duties cannot as a metter of course be brought under the protective umbrella of Section 197 Cr.P.C. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. As mentioned in Bhagwan Prasad Srivastava's case (supra), the underlying

object of Section 197 Cr.P.C. is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, as indicated hereinabove, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C. and have to be considered defendant hors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be

demanded by the public servant concerned."

11. In the light of above judgment, when the same is examined with the case of the petitioner, I strongly held that the case filed under Section 200 Cr.P.C. has to be ended as per the proceedings established and so in the Cr.P.C. If it is a case of the petitioner or the Government Official that the case was falsely filed in order to wreck vengeance for having done his official work, then it is for the petitioner or the Government official to produce materials and documents before the appropriate Court, by examining person/s who are named therein to prove it. If at all these documents were produced before the Court below where the case is registered, then it is for that Court to discharge the person or to dismiss the complaint and take further action in accordance with law.

12. In view of the reasons assigned and more particularly in the light of the judgments referred above, I do not find any good reasons to interfere.

13. Accordingly, the petition is dismissed. Liberty is reserved to the petitioner to produce all documents, if he so desires, and to file application to discharge before the trial Court and the trial Court after consideration, to pass appropriate orders in accordance with law.

It is not automatic when the cases are filed to take cognizance unless the relevant materials and evidence are examined to its satisfaction.

SD/- JUDGE

gab/-