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-570 001. ... PETITIONER (BY SRI.M.S. BHAGWAT, ADVOCATE) AND THE STATE BY KARNATAKA LOKAYUKTHA POLICE, MYSORE DIVISION, MYSORE-570 001, 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.
Transcript
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 13TH 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, 6TH A CROSS, SANMARGA SIDDHARTHA LAYOUT, MYSORE-570 001. ... PETITIONER
(BY SRI.M.S. BHAGWAT, ADVOCATE) AND THE STATE BY KARNATAKA LOKAYUKTHA POLICE, MYSORE DIVISION, MYSORE-570 001, 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.
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THIS CRIMINAL PETITION AFTER HEARING,
HAVING BEEN RESERVED FOR ORDERS ON 13.10.2014, 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
person by name Sri L. Chandrashekar, on 15.3.2014
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
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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
10.10.1961, 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
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services to the Mysore Palace. Thereafter, on
3.1.1971/12.1.1971, a Confirmation deed was executed
in pursuance of the said gift dated 10.10.1961. The
said B.K. Sundar, who is the beneficiary has moved in
the year 2013 for registration of a Confirmation deed
dated 22.11.2013, 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 17.12.2013
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 23.11.2013.
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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 –
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“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
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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
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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
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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 sine-
quanon 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 2.8.2014 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
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 5.8.2014.
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 31.7.2014. 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
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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
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
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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
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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
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
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.
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24. 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
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
Judge, Mysore in Special Case No.63/2014 dated
2.8.2014 in taking cognizance of the offences
punishable under Section 13(1)(d)(ii) and (iii) of the PC
