IN THE HIGH COURT OF KARNATAKA, BANGALORE :BEFORE: THE HON BLE MR.JUSTICE K.N. PHANEENDRA CRIMINAL PETITION NO.5177/2014

Transcription

1 IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 13 TH NOVEMBER, 2014 :BEFORE: THE HON BLE MR.JUSTICE K.N. PHANEENDRA CRIMINAL PETITION NO.5177/2014 BETWEEN SRI M.GIRISHA, S/O. LATE MAHADEVAPPA, AGED ABOUT 39 YEARS, WORKING AS SUB-REGISTRAR, MYSORE EAST, MYSORE, RESIDING AT NO.413, 6 TH A CROSS, SANMARGA SIDDHARTHA LAYOUT, MYSORE PETITIONER (BY SRI.M.S. BHAGWAT, ADVOCATE) AND THE STATE BY KARNATAKA LOKAYUKTHA POLICE, MYSORE DIVISION, MYSORE , REPRESENTED BY ITS SUPERINTENDENT OF POLICE.... RESPONDENT (BY SMT. PUSHPALATHA.B, SPL. COUNSEL) THIS CRL.P IS FILED U/S. 482 CR.P.C PRAYING TO QUASH THE CHARGE SHEET IN SPL.C.NO.63/14 ON THE FILE OF THE III ADDL.DIST. AND S.J., MYSORE DIST., MYSORE (ANNEXURE-A) AND ALL FURTHER PROCEEDINGS, IN SO FAR AS THE PETITIONER (ACCUSED NO.3) IS CONCERNED.

2 2 THIS CRIMINAL PETITION AFTER HEARING, HAVING BEEN RESERVED FOR ORDERS ON , COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT PASSED THE FOLLOWING: O R D E R The petitioner who is arrayed as Accused No.3 in Special Case No.63/2014 on the file of III Addl. District and Sessions Judge, Mysore, has approached this court seeking quashing of the said Special case on various grounds. 2. After issuance of notice, the respondent Lokayuktha Police is represented by the standing counsel Smt. B.Pushpalatha. The respondent has filed statement of objections to the petition. 3. The brief factual matrix that emanate from the records are that: The petitioner has been working as Sub-Registrar in the Office of the Sub-Registrar, Mysore East. A

3 3 person by name Sri L. Chandrashekar, on filed FIR before the Upa-Lokayuktha of Karnataka Lokayuktha, alleging that the petitioner colluding with other accused persons has created and fabricated certain documents for the purpose of making unlawful gain for himself and to the other accused by name Sri B.K. Sundar, in order to knock off the valuable property belonging to His Highness Maharaja of Mysore Sri Srikantadatta Narasimharaja Wodeyar worth about 30 crores. The petitioner and other accused have created and fabricated a document styled as a confirmation deed in the name of His Highness Maharaja of Mysore on the basis of an un-registered xerox copy of the earlier gift, alleged to have been given by the said Maharaja of Mysore in favour of Sri B.K. Sundar. 4. On the basis of the suo-moto FIR and on the directions of Upa-lokayuktha, it appears, the respondent-lokayuktha Police have registered a case in

4 4 Crime No.6/2014 for the offence punishable under Sections 13(1)(d)(ii) and (iii) of Prevention of Corruption Act, 1988 and also u/s.465, 466, 467, 468, 471, 472, 473, 474, 420 and 109 read with Section 120(B) of IPC. The police after due investigation filed the charge sheet before the court and a Special case has been registered by the III Addl. District and Sessions Judge in Special Case No.63/2014, wherein the learned Special Judge has taken cognizance for the offences mentioned above. The said order is challenged before this Court. 5. The brief history of the case is that on , upon the order of his Highness Maharaja of Mysore, late Sri Jayachamarajendra wodeyar, a person by name B.J. Balaraju, Secretary, Mysore Palace Estate Department gifted the property bearing Site No.5 Junjer No.68 in Survey No.1 of Mysore, which measures East to West 200 and North to South 250 to one Sri B.K. Sundar for his longstanding, outstanding and loyal

5 5 services to the Mysore Palace. Thereafter, on / , a Confirmation deed was executed in pursuance of the said gift dated The said B.K. Sundar, who is the beneficiary has moved in the year 2013 for registration of a Confirmation deed dated , for confirmation of earlier gift, on the written request of His Highness Maharaja of Mysore to the petitioner herein for admitting registration of the said confirmation deed at his place. On the request made by His Highness Maharaja of Mysore Sri Srikantadatha Narasimharaja Wodeyer, on the petitioner visited His Highness at his place along with two witnesses and obtained the signature, left hand thumb impression and photo of His Highness and registered the Confirmation deed dated Therefore, it is contended by the learned counsel for the petitioner that this petitioner has done his duty only as a Sub-Registrar and nothing more. There is no allegations of whatsoever in the entire charge sheet

6 6 papers that he has done it by obtaining any unlawful advantage or illegal gratification from anybody for registering the said document. 6. Sri. M.S.Bhagwat, learned Sr. counsel for the petitioner has strenuously contended that there are no allegations in the FIR or in the charge sheet that in order to attract Section 13(1)(d)(ii) and (iii) of the said Act, there are no allegations of any official favour being shown to any person much less to His Highness Maharaja of Mysore or to the said Sri B.K. Sundar. He further contends that the act done by the Sub-Registrar, A3 is in accordance with Section 38 and Rule 57 and 58 of the Registration Act and Rules. The learned Sr. counsel further contends that the Special court has no jurisdiction to take cognizance without there being a valid sanction order accorded by the competent authority. No charge sheet can be filed without being accompanied by a valid sanction order. He further

7 7 submitted that no investigation can be done and no charge sheet can be filed without any complaint by any aggrieved person. Even if the allegations made in the charge sheet are translated into evidence, it does not constitute any offence. The learned counsel has also argued that no offences under the IPC can be tried by the court, when there are allegations against the public servant that he abused his office and committed such offences without there being any sanction Order u/s.197 of Cr.PC. As there is no complaint filed by anybody u/s.9 of Lokayuktha Act, there cannot be any deemed sanction under Section 14 of the Lokayuktha Act. Even if the accused has committed any mistake in going to the house of His Highness for the purpose of taking Left hand Thumb impression, signature and photos, that can only be a mistake and not an offence, it can only be set at right, if necessary by means of departmental enquiry. Therefore, for all these reasons, he contended that the entire proceedings before the

8 8 Special Court is vitiated by serious incurable defects. Hence, the same is liable to be quashed. 7. Per contra, Smt. Pushpalatha, learned standing counsel for the respondent Lokayuktha Police has fairly submitted that at the time of filing of the charge sheet, the respondent has not taken a valid sanction order from the competent authority, therefore, the court could have waited till the receipt of the sanction order by the competent authority and cognizance taken may be an irregularity and it can be cured at any later stage. She further contends that the charge sheet allegations discloses that the accused Nos.5, 6 and 7 are real estate agents and in order to help them, the petitioner also colluded with them and registered a confirmation deed which is un-known to the Registration Act and any other law for the time being in force. There was no earlier gift deed. Therefore, there is no question of confirmation of any un-registered gift deed. In fact, the

9 9 petitioner - Sub Registrar himself has refused to register the same because it is not permissible under law. She also brought to my notice some factual aspects, that the signature and LTM of His Highness Maharaja of Mysore Sri Srikantadatta Narasimha Raja Wodeyar were taken at a club, therefore, the provisions of sections 35, 56, 57 and 58 are not applicable. The Sub-Registrar cannot go outside his jurisdiction to assist any party. There are certain allegations made by the prosecution through the statement of witnesses PWs.37, 38 and 39 and CWs.15 and 16 to establish the illegal acts committed by the petitioner. All those things have to be considered by the learned Trial Judge at the time of framing of the charges. When allegations made are sufficient to create a doubt, in such an eventuality, the court cannot quash the entire proceedings without providing opportunity to the complainant to establish the case. Therefore, she contends that at the most, this court can set aside the cognizance order passed by the Trial Court without

10 10 there being a sanction order accompanying the charge sheet papers. Therefore, she contends that the petition is liable to be dismissed. 8. I have carefully perused some of the rulings cited by the learned counsel for the petitioner. 9. Sri Bhagawath, learned Senior Counsel has drawn my attention to the rulings reported in 2012 (5) KAR.LJ 545 between L.Shankaramurthy and others Vs. State by Lokayuktha Police, City Division, wherein at para 39, this Court has held that The FIRs. and the panchanamas taken together do not make out any of the allegations to bring the cases within the ambit of Sections 8 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act. Added to this, the FIRs. as well as seizure panchanamas do not mention anywhere that the petitioners had demanded any bribe amount form any person nor is there any mention that the petitioners had received or

11 11 accepted the bribe amounts and the said bribe amounts were recovered from their possession. 10. He has also relied upon another ruling reported in 2013(5) KAR.LJ 470(DB) between Girish Chandra and another Vs. State by Lokayuktha Police, Yadgir. This case is with regard to trap case, and therefore the decision in my opinion is not applicable so far as the present case is concerned, because this is not a trap case. In the above said case, the procedure to be followed with regard to the trap case is explained. 11. The another case reported in 2011(6) KAR.LJ 632 between C.Vishwanatha and another Vs. Karnataka is also not applicable to the case on hand because the said case deals with the offences exclusively committed within the domain of IPC., and whether the Lokayuktha Police can investigate such offences. In this case, such a situation is not there because, the

12 12 provisions under Prevention of Corruption Act are also invoked. 12. Sri Bhagawat, learned Senior counsel also relied upon several rulings reported in: (1) Writ Petition No.2608/2007 between Smt. H. Jayamma and others Vs. Kar. Lokayuktha and others. (2) 2001(1) KAR.LJ 215 between Smt. Sulochanamma Vs. H. Nanjundaswamy & Others, (3) (2014) 1 SCC 669 between Gurudwara Sahib Vs. Grama Panchayath Village and (4) 2013(5) KAR.LJ 470 between Girishchandra Vs. State of Lokayuktha Police. All these rulings have been relied upon to show that when the Sub-Registrar exercises his duty and registers a document, even such document does not create any

13 13 right, title, interest in favour of anybody or even the document is not worthy for registration, even then he is not liable for any offence. But at this stage, I do not want to deal with those decisions because of the two important aspects i.e., raised in this case by the learned Senior counsel for the petitioner is sufficient to set aside the order passed by the Special Judge. 13. The learned counsel for the respondent also relied upon several rulings in order to show to this Court that the accused petitioner himself has stated that the document like confirmation deed cannot be registered but later he has registered the same. Such facts also to be taken into consideration. 14. The learned counsel for the respondent has argued before me that the document registered by the petitioner is not in conformity with the provisions of the Registration Act. The nature of the document itself is unknown to the Registration Act and such acts have to

14 14 be read with other circumstances of the case. She relied upon a ruling reported ILR 2003 KAR 3589, between State of Karnataka Vs. Basavaraj Guddappa Maliger, in order to show that the Lokayuktha Police alone can investigate the matter, when offences under the provisions of Prevention of Corruption Act are invoked. 15. In another ruling reported in ILR 2002 KAR 4351 between Shafiulla Rahim Khan & another Vs. The High Court of Karnataka and another, wherein this Court at Paragraph 9, has discussed the powers of the High Court u/s. 482 of Cr.PC, that When a petition u/s.482 is presented and placed before the Court for admission, this Court may refuse to entertain it, if there are no Special grounds to deviate from the general rule that an accused should normally apply to the Trial Court for discharge. The petition under Section 482 of Cr.PC for quashing the criminal proceedings if any will

15 15 be entertained only in the rarest of rare cases. For the similar view, she also relied upon another ruling reported in 2002 (3) SCC 89 between State of Karnataka Vs. M. Devendrappa and another, wherein the Hon'ble Apex Court has held at head note that The power u/s.482 of Cr.PC should be exercised ex debito justitiae to prevent abuse of process of Court - But it should not be exercised to stifle legitimate prosecution - High Court should not assume the role of a Trial Court and embark upon an enquiry as to reliability of the evidence and sustainability of the accusation `on a reasonable appreciation of such evidence - power should be exercised sparingly with caution and circumspection. 16. Lastly, she has relied upon a ruling of the Hon'ble Apex Court reported 2002(10) SCC 333 between State of Bihar Vs. Purushottam Singh and others, wherein it has held that

16 16 the court cannot deal with voluminous material collected by the investigating officer to exonerate the accused without trial by exercising powers u/s.482 of Cr.PC. 17. Having gone through the above said decisions, in my opinion, all those materials and the rulings cited are not necessarily to be considered at this stage. If this court is of the opinion, that cognizance taken by the Special Judge is bad in law for any reasons, then the order requires to be set aside. The court cannot imagine at this stage, whether the police would file charge sheet once again before the same court and cognizance will be taken by the learned Judge of the Special court, it all depends upon the facts and circumstances of the case of each case, it would suffice to say that the cognizance taken by the Magistrate or the learned Special Judge is bad in law, then it simply set aside the said cognizance order and it should not embark upon the facts and circumstances of the case in

17 17 order to quash the charge sheet itself, it becomes too premature stage to consider all such matters. 18. Coming back to the case on hand, the charge sheet papers discloses that the respondent - Lokayuktha police, have invoked the provisions of both IPC and Prevention of Corruption Act as noted supra. It is made clear by the decision of the Hon'ble Apex Court in a case reported in (2013) 10 SCC 705 between Anil Kumar and Others Vs. M.K. Aiyappa and another, wherein the Hon'ble Apex Court has relying upon the decision of the Supreme Court reported in (2009) 6 SCC 372 between State of Uttar Pradesh Vs. Paras Nath Singh expressed the following view:.. 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

18 18 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 his 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 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 the power of the Court to take cognizance of any offence is absolute and complete. The very cognizance is barred. i.e., the complaint cannot be taken notice of, it means a court 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

19 19 accused of an offence alleged to have been committed during discharge of his official duty. 19. In view of the principles laid down in the above said case, it is clear that if it is a charge sheet filed by the Police on registration of the FIR and after due investigation, the said charge sheet shall be accompanied by a sanction order accorded by the competent authority, otherwise, the court has no jurisdiction to take cognizance of the offences under the provisions of the Prevention of Corruption Act or under the IPC. Therefore, the order of sanction is a sinequanon for the purpose of taking cognizance. In this particular case, as could be seen from the order sheet of the Special Judge, Mysore in Special Case No.63/2014 vide its order dated he has passed the order in the following manner: the offence u/s.13(1)(d)(ii), (iii) of PC Act, 1988 read with Section 463, 464, 465,

20 20 466, 467, 468, 471, 473, 474, 420 read with Section 109, 120B of IPC and Section 81 and 82 of Registration Act, 1908 are exclusively triable by a Special Judge. Perused the records and cognizance taken and registered the Special Case. Call on Sd/- III Addl. District and Sessions Judge Mysore 20. The above said order is bad in law for two reasons. One amongst them is that the charge sheet papers itself discloses that the respondent police have applied for grant of sanction to prosecute the petitioner/accused No.3 in No.LOK/INV(G)/M- 19/CR/06/2014/Mysore dated But the sanction has not yet been accorded and the said sanction order will be furnished to the Court after securing the same from the Government. Therefore, it goes without saying that the charge sheet filed by the

21 21 Lokayuktha Police was bereft of the sanction Order. In view of the rulings in Aiyappa s case, the cognizance taken by the Special Judge is bad in law. Section 19 of the P.C.Act 1988, which is mandatory in nature, which starts with a negative aspect that - No court shall take cognizance without there being a valid sanction Order. It indicates that Horse cannot be put behind the cart, permitting the police to file the sanction order after filing of the charge sheet and taking cognizance. Even assuming such an eventuality, the court cannot go back i.e., prior to the stage of taking of cognizance and once again take cognizance for the offences, therefore, the learned Special Judge has committed a serious error in taking cognizance without a valid sanction Order. Hence, the order deserves to be set aside. 21. The second ground urged for setting aside the order, as rightly contended by Sri Bagawath, learned Senior counsel in this case is that there is no

22 22 semblance of indication in the order passed by the Special judge that the learned Magistrate has applied his mind to the charge sheet papers and satisfied himself as to whether the allegations made in the charge sheet are sufficient to constitute any offence against several of the accused persons particularly A3 in this case. 22. I agree with the arguments submitted by the learned counsel for the petitioner. The Hon'ble Apex Court in innumerable rulings has cautioned the courts which are empowered to take cognizance that, as soon a Private complaint is filed or any charge sheet is filed, the Judge has to apply his mind to the facts of the case, in order to ascertain whether the allegations made in the charge sheet papers or in the Private complaint if they are accepted on their face value, without appreciating them, are sufficient to constitute any offences alleged against them. Though the learned

23 23 Magistrate is not required to in detail go through the entire materials on record by means of nit-picking examination of the statement of the witnesses and the documents furnished by the prosecution agency, but nevertheless, the order of taking cognizance should disclose that the court has applied its mind and understood the case of the prosecution and also allegations made against the accused persons and found that the allegations are sufficient to constitute the offences against the accused. Mere saying that perused the records does not indicate that the Magistrate has applied his mind and found that the allegations in the charge sheet papers are sufficient to constitute the offences alleged. It is not necessary for the court to take cognizance of all the offences noted in the charge sheet, the court has to bear in mind that the offences for which the allegations are sufficiently made, and they are separable, only against those offences, the court has to take cognizance. At that stage, the court is

24 24 taking cognizance not against the accused persons, but against the offences alleged. Therefore, it is incumbent upon the court to examine the charge sheet papers and thereafter, apply its judicious mind to find out whether the allegations are sufficient to constitute the offences alleged against the accused, then only by means of giving reasons howsoever short it may be, the court has to pass appropriate orders. If the court is of the opinion that the allegations made in the charge sheet papers are not sufficient to constitute some of the offences alleged against the accused which are independent and not intertwined with each other, then the court shall not take cognizance of those offences. Therefore, the court should bear in mind that taking of cognizance and issuing of process against the accused is not an idle formality and it has got great impact on the person who is summoned to the court to answer the charges. Unnecessary taking of cognizance and issuing of process against the accused persons would cause great

25 25 loss and it would impair the right of liberty guaranteed under the Constitution of India. 23. Under the above said circumstances in this particular case, the learned Special Judge has not bestowed his attention before taking cognizance in order to ascertain whether the allegations made in the charge sheet papers are sufficient to constitute the offences alleged against the accused persons particularly against A3. The order of the Special Judge shall depict on facts of the case, that he has applied his mind and legally understood the allegations made against the accused and found that the allegations are sufficient to constitute the offences alleged against them. This satisfaction of the court should be borne out from the Orders of the court itself and not by any other means. In Aiyappa s case, at paragraph 11, it is made it clear that the application of mind by the Magistrate should be reflected in the Order. The mere statement that he has

26 26 gone through the complaint, documents and heard the complainant as such, as reflected in the order will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate should be reflected in the Order, though a detailed expression of his views neither required nor warranted. Therefore, it is incumbent upon the court that howsoever short the order may be, but it should depict the application of judicious mind by the learned Judge to the entire charge sheet papers and the documentation by the prosecution and then only he has to decide to take cognizance and for issuance of summons to the accused. In this regard also, the Order passed by the learned Special Judge is very bald in nature and it requires to be set aside on this ground with a direction that in future, the learned Judge has to bear in mind the above said observations made by this Court before passing orders and taking cognizance and issuing process against the accused.

27 Before parting with this judgment, it is just and necessary to note here the observations made in the Aiyappa s case cited supra, wherein the Hon'ble Apex Court has made it abundantly clear that whenever, a private complaint is filed or any charge sheet is filed, which attract the provisions of Prevention of Corruption Act, the Private Complaint or the charge sheet shall be accompanied by a sanction Order accorded by the competent authority. If the prosecuting agency is permitted to file the charge sheet to the court without a sanction Order or awaiting the sanction Order of the competent authority, it would lead to un-certainty and creates an anomaly as to how long the court has to wait, keeping the charge sheet on its file, without passing any order or taking cognizance of the offences. Perhaps that may be the reason, the Hon'ble Apex Court has specifically guided that whenever a Private Complaint is filed or charge sheet is filed for the offences under the Prevention of Corruption Act, it shall

28 28 be accompanied by a sanction Order. In this case, the charge sheet filed by the respondent police to the court without the sanction Order is also bad in law and the same is liable to be returned to the respondent with a liberty to file the charge sheet afresh after obtaining the sanction Order accorded by a competent authority. For the aforesaid reasons, I do not want to touch upon the merits and demerits of the case at this stage. The merits or demerits of the case coupled with the rulings cited by the learned counsels cannot be appreciated at this stage. Therefore, I am reluctant to deal with those decisions as well as the entire facts of this case. The petitioner is at liberty to urge them at any later stages before the appropriate Court. With these observations, I proceed to pass the following: ORDER The petition is partly allowed. The Order passed by the III Addl. District and Sessions Judge and Special

29 29 Judge, Mysore in Special Case No.63/2014 dated in taking cognizance of the offences punishable under Section 13(1)(d)(ii) and (iii) of the PC Act, 1988 r/w. Section 463, 465, 466, 467, 468, 471, 473, 474, 420, r/w. 109 and 120B of IPC and Section 81 and 82 of the Registration Act, 1908 is hereby set aside so far as it relates to the petitioner is concerned. The Trial Court is directed to return the charge sheet to the respondent Lokayuktha Police with a liberty to file the charge sheet afresh accompanied by a sanction Order so far it relates to accused No.3. In the event the respondent filing any charge sheet afresh, the Special Judge has to pass appropriate Order bearing in mind the observations made in the body of this Order. PL SD/- JUDGE