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L. Narayana Swamy, J—All these petitions are arising out of the complaint dated 11th August 2011. After holding investigation, charge sheet has been filed. Hence these petitions are filed praying to quash the entire proceedings initiated by the respondent-police in Crime No. 46 of 2011 now in CC No. 8400 of 2012 for the offences alleged under Sections 417, 418, 465, 466, 468, 471, 506 read with Section 120(B) of the Indian Penal Code which is pending on the file of VIII Additional Chief Metropolitan Magistrate, Bengaluru.
Karnataka Public Service Commission (hereinafter referred to as XPSC for short) issued notification for selection to the post of Group ''A'' and ''B'' officers in the year 1998. Petitioners in Criminal Petition Nos. 3181 of 2012 and 4645 of 2012 got selected for the said post, consequently reported for duty and accordingly they are working in their respective place of postings. Challenging the selection made by KPSC, a petition was filed in Writ Petition No. 9098 of 2009 (GM-RES-PIL). On 16th December 2010, the Division Bench of this Court in Public Interest Litigation, referring to the report Annexure-''V made by the Additional Chief Secretary, issued direction to the State Government to get the matter investigated through Criminal Investigation Department by ensuring that investigation is carried out by an officer not below the rank of Deputy Inspector General of Police. As per the direction, the investigation process was to be monitored on a regular basis and for the said purpose, a sitting Hon''ble Judge of this Court, viz. Justice Ajit Gunjal (as he then was), was monitoring the investigation. By order dated 23rd August 2011, the Public Interest Litigation was disposed of wherein it was felt that it was not possible for a sitting Judge to monitor the investigation and accordingly Hon''ble Mr. Justice Mohammed Anwar, a former Judge of this Court was nominated to monitor the investigation process till the submission of the report by the Criminal Investigation Department. After the completion of the investigation, the investigating officers submitted report dated 11th August 2011, and based on the said report Crime No. 46 of 2011 came to be registered by Vidhana Soudha Police Station, Bengaluru for the offences punishable under Sections 417, 418, 465, 466, 468, 471, 506 read with Section 120(B) of the Indian Penal Code.
The petitioners in the above referred petitions, who are the candidates selected in 1998 selection, have been alleged to have committed the offence alleged. In respect of Asha Parveen the petitioner in Criminal Petition No. 4645 of 2012, it is alleged that she has produced II-B Certificate bearing No. BCM City/3262/1998-99 dated 9th March 1998 at the time of personality test in December 2006. It is further alleged that at the time of personality test, the said candidate did not possess II-B certificate which was purported to be issued by Tahsildar, Bangalore (North) Taluk. Hence, it is doubted that the same appears to be fabricated and the candidate used it knowingly and thereby committed criminal offence. In respect of petitioner in Criminal Petition No. 3181 of 2012 viz. Salma Firdose, it stated that the said petitioner also has produced II-B certificate, which is apparently a forged certificate and she also committed an offence punishable under law. After investigation, charge sheet has been filed, in which it was charged that both the petitioners have committed an offence by forging and producing the certificates and got selected on the basis of forged caste certificates.
The petitioner in Criminal Petition No. 4895 of 2012 i.e. M.B. Banakar, is accused No. 7 and he has been charged for the offences under Sections 455, 468, 471 read with Section 37 of the Indian Penal Code. It is the case of prosecution that he was the Personal Assistant to the Member of KPSC during the period 2001-2007. During the interview for the said post in the year 1998, he was deputed to verify the documents before the interview and one candidate, viz. Alla Bhaksh, who has been taken as CW-30, has submitted his SSLC Certificate and II-B certificate for the purpose of reservation, he has colluded with accused No. 1 and obtained the signature and he has submitted a letter, as if the candidate has not claimed any reservation. It is also the case of prosecution that CW-30 Allah Bhaksh, has not submitted any letter to consider his case under General Merit category since he was in possession of II-B certificate for the purpose of reservation.
The petitioner P. Gopi Krishna in Criminal Petition No. 4894 of 2012, is accused No. 6 and he was Personal Assistant to accused No. 1 and at that relevant point of time, he was drafted for verification of documents produced by the candidates. One candidate by name T.S. Hanumathegowda, Register No. 104648 who is taken as CW-29, had produced III-A Certificate for the purpose of reservation. It is the case of the prosecution that this petitioner had obtained the signature of CW-29, and thereafter, it was converted into a request, as if he is not claiming reservation and claiming to consider his candidature under General Merit category for the selection of Group-A (gazetted) post. It is the case of CW-29 that by virtue of impugned action of the petitioner, CW-29 is deprived of having been selected as Group-A officer. Hence, it is alleged that the petitioner has committed offence under Sections 465, 468, 471 read with Section 37 of the Indian Penal Code.
Petitioner in Criminal Petition No. 5083 of 2012 viz. K. Narasimha, is accused No. 5. It is seen from the charge sheet that he was Personal Assistant to Venkata Swami, CW-3 and he was also asked to verify the original documents of the candidates at the time of interview. It is the case of the prosecution that this petitioner, who is Accused No. 5, has obtained the signature of CW-28 and converted the same as a representation as if he is not claiming reservation and requesting to consider his case under General Merit category. He has colluded with accused No. 1. Hence, he is charged for offence under Sections 465, 467, 468 read with Section 37 of the Indian Penal Code. At this juncture, they have approached this Court seeking quashing of proceedings initiated against them.
Petitioners in Criminal Petitions No. 4645 of 2012 and 3181 of 2012 are the candidates who have been selected in the year 1998 and are working in their respective places of posting. It is the submission of the learned counsel appearing for the petitioners that the charges leveled against these petitioners are unfounded. As regards petitioner in Writ Petition No. 4645 of 2012 it is submitted that the petitioner has obtained certificate duly issued by the competent authority and produced the same at the time of interview. If at all it is forged, the appropriate authority to have its say about the authenticity of the certificate is the Tahsildar and it should have been answered by Tahsildar alone. The Tahsildar in his report has stated that he must have issued the said certificates Annexure-K dated 9th March 1998 in Form No. 3 which is produced as to the petition, which bears the seal and signature of Tahsildar. It is not within the knowledge of the petitioner as to whether it has been entered in the Register maintained to that effect in the office of Tahsildar or not. He submits that the signature of Tahsildar was also forwarded to Forensic Science Laboratory. The report of Forensic Science Laboratory is that the signature and seal in the Register and the Certificate issued tallies; and being not satisfied with the said report, the signature of Tahsidlar was sent to Truth Lab, Hyderabad for second opinion. Truth Lab, Hyderabad in its report has opined that the seal and signature of Tahsildar does not tally; and on this ground, the learned counsel for the petitioner submits to quash the proceedings initiated against the petitioner for offences alleged to have been committed by the petitioner.
The learned counsel appearing for the petitioner in Criminal Petition No. 3181 of 2012 who is accused No. 3, submitted that the certificate obtained and produced at the time of selection is duly issued by Tahsildar (North). The proper maintenance of Register for having issued the certificate is the job of the officers concerned and not of the petitioner. The certificates were forwarded to the Forensic Science Laboratory and it is opined that the signature and seal of the Tahsildar is one and the same. Under the circumstance, nothing has been made out by the prosecution against this petitioner. The learned counsel relying upon the deposition of Tahsildar in his cross-examination submits that the evidence of Tahsildar goes to show that instead of entering the name of the petitioner at relevant serial number, the name of Smt. Asha has been referred three times in serial numbers 38 to 40 and if that is rectified, it is legally presumable that the Tahsildar has issued certificate and the irregularities, if any, is committed it is by the Tahsildar while registering registration and it is the Tahsildar who has to be held responsible and not the petitioner. The learned counsel submits that there are circumstances in which the Forensic Science Laboratory reports state that the signature and seal of Tahsildar tallies both on the Certificate and in the Register. In the Departmental Enquiry, the Tahsildar, in the course of cross-examination admits that at three serial numbers the name has been referred in Exhibit D1 and in Exhibit D2. The same should have been appropriately entered at relevant stage. Under the circumstance, the learned counsel submits that the irregularities found in the register maintained by Tahsildar shall not be a ground to hold that the petitioner has obtained false certificate and hence submits to allow the petition. The revenue inspector Shivaputrappa in Departmental Enquiry has been examined and has been subjected to cross-examination. On 19th November 2011 he deposes that he had visited and reported back to the officer and the report was placed before Shirastedar and in turn the same was placed before the Tahsildar for necessary orders. By referring the evidence of Shivaputrappa as per Exhibit D2, the learned counsel submits that these are the circumstances which hold good that the petitioner has not committed an offence of forgery and it was only irregularity in maintaining the register. Hence he submits that the proceedings initiated are only to harass the petitioner and are liable to be quashed.
It is the submission of the Prosecution that irregularities have been proved during investigation and upon enquiry, these petitioners were charged with the offences punishable under the Indian Penal Code. The charge made against the petitioner Asha Parveen is that she has produced forged caste certificate in order to make an illegal gain. Though it is the case of the petitioner that her certificates have been duly issued by Tahsildar, but when the same was forwarded to Truth Lab at Hyderabad, it is reported that the signatures of Tahsildar on the certificate as well as the Register, does not tally. Since there were two reports available, the Forensic Science Laboratory, Bengaluru was again requested to submit its report.
In respect of the petitioner in Criminal Petition No. 4645 of 2012, it is reported that "the person who wrote the standard signature marked as SS1 to SS9, RS2, RS5 and questioned signature was marked as QS 1". Similarly, in the case of petitioner in Criminal Petition No. 3181 of 2012, at paragraph 9 it is referred that "the person who wrote the standard signatures marked as SJ10 to SJ19, RJ7 to RJf12 and questioned signature was marked as QJ2". In respect of item No. 8 as regards the petitioner in Criminal Petition No. 3181 of 2012, it is opined that "the line quality of this questioned signature is smooth, clear, rythematic and uniform and there is no sign of forgery found in it." This certificate was issued by Assistant Director (Questioned Document), Forensic Science Laboratory, Bengaluru and as against this the Director of Forensic Science Laboratory has expressed his displeasure in the certificate issued by Assistant Director. Again upon the expert opinion, pursuant to an article appeared in Times of India dated 21st March 2012, by his letter dated 26th March 2012 the opinion expressed by the Assistant Director of Forensic Science Laboratory is not properly appreciated and then the Director, Forensic Science Laboratory recommended to initiate disciplinary enquiry against the Assistant Director who had issued the earlier certificate. At this juncture, the learned counsel for the petitioner submits that the opinion expressed by the Director of Forensic Science Laboratory is not the part of charge sheet and no furtherance is found on the opinion expressed by the Director. Per contra, the learned counsel for the respondent submits that it is referred in the charge sheet that further investigation has to be taken place.
Criminal Petition No. 4895 of 2012 is by the official of the Karnataka Public Service Commission. This official, at the relevant point of time, was working as Personal Assistant to the Member of KPSC. For the selection of 1998 batch, he was drafted to verify the original documents at the time of interview. Criminal Petition No. 5083 of 2012 is by party-in-person and it is submitted that the charge made against him is in respect of 2004 selection. It is submitted that on behalf of the present petitioner the entire proceedings are vitiated and the same is liable to be set aside primarily for the reason of not obtaining sanction from the competent authority. He submits that wherever, officials who are discharging public duty against whom private complaints are received, there shall be a sanction from the competent authority, which is mandatory, otherwise the entire proceedings gets vitiated. Secondly, it is submitted that under Section 191B of CrPC, while taking cognizance for issuance of process, the learned Magistrate has lost sight of law and he has issued process to the accused. Hence, the entire proceedings gets vitiated for want of sanction under Section 197 and 191B of Cr.P.C.
In support of their submissions, the learned counsel referred various judgments. The judgment in the case R. Balakrishna Pillai Vs. State of Kerala, AIR 1996 SC 901 : AIR 1995 SC 901 : (1995) 4 Crimes 704 : (1995) 9 JT 580 : (1995) 7 SCALE 255 : (1996) 1 SCC 478 : (1996) 6 SCR 236 Supp has been relied upon and referred to paragraphs 6 and 7 and submitted that under Section 197 CrPC it is necessary to obtain sanction while prosecuting against a public servant for acts committed in discharging of his official duty. By referring to Section 197 of the CrPC the learned counsel submitted that in relation to discharge of public duty whether he is in service or retired on superannuation, in case of taking cognizance by issuance of process, sanction is to be obtained by the competent authority.
The learned counsel appearing for the petitioner in Criminal Petition No. 4895 of 2012 Accused No. 17, submitted that neither in the complaint nor in 164 statement of CW-30, though it is recorded twice, the name of the petitioner has not been referred to and CW-30 has not submitted anything against the petitioner for having committed the alleged acts of misconduct. In the complaint at Annexure-B by referring the complaint dated 11th August 2011 made pursuant to the order passed by this Court, at paragraph 41, it is referred that there are interpolations find in the complaint. In paragraph 1 of the complaint it is referred that the personality test was conducted in 2006 whereas it should be ''2005''. Despite this irregularity, the learned magistrate has taken cognizance and issued process. Similarly, in the charge sheet also as per item No. 12, the names of accused No. 6 is referred in vernacular language and accused No. 7 in English. In respect of accused No. 4, it is overwritten. Certain other interpolations have been found in internal page of charge sheet wherein it is overwritten in respect A5 to A7. These things, though look as minor interpolations but the same should have been examined by the learned Magistrate while taking cognizance. Hence, the power assigned to the learned Magistrate under Section 191B of CrPC has not been properly exercised and hence it is violation of law and the charge sheet is to be quashed. He also submits that the appointing authority has to give sanction to prosecute the case and the sanction has not been obtained to prosecute the officials and the charge sheet has been filed before obtaining the sanction, which is mandatory.
In respect of accused No. 4 the petitioner in Criminal Petition No. 4894 of 2012 it has been charged that the petitioner has committed the offence by obtaining the signature of CW-29 and thereafter it is requested to treat his case as general merit candidate and further alleged that this accused has committed an offence in collusion with accused No. 1. Rebutting the same, the learned counsel referred the letter made by CW-29, which is produced as Annexure-H in which he has requested to consider his case instead of category III-A to consider his candidature in General Merit category. In 164 statement recorded on 24th October 2011, he has stated that he was informed by the Committee head, i.e. accused No. 1 the President of KPSC, that after my interview, I came out of the interview room, I was asked by the staff of KPSC to stay back and meet Dr. H.N. Krishna. Thereafter, I went and met said Dr. H.N. Krishna, who insisted me to give it in writing to consider my candidature for the post under the General Category instead of 3-A category. When I refused to give in writing the said Dr. H.N. Krishna, the accused No. 1, called his Personal Assistant Revanasiddaiah and directed him to take my undertaking. Thereafter without any option, due to pressure upon me, I gave in writing." In 164 statement, CW-29 states that if at all any action is to be taken, it is to be taken against Revanasiddaiah and not against this petitioner. Similar statement was also made under Section 161 CrPC before the Investigating Officer. In both 161 and 164 statements CW-29 has alleged against accused No. 1 and Revanasiddaiah. It is submitted that the case of the petitioner has not been referred. However, for no reason, he has been charge sheeted for the offence that he has colluded with Accused No. 1 for committing the alleged offence. He has also taken a common ground of not obtaining sanction and also the action of the learned Magistrate while taking cognizance for issuance of process, is violative of the requirement of Section 191B of CrPC.
The petitioner in Criminal Petition No. 5083 of 2012 is accused No. 5 and the allegations on him relates back to 2004 selection. It is charged that CW-28 who made a request to accused No. 1 for consideration of his case in General Merit category instead of III-A category Rural/KMS. It is the case of the prosecution that accused No. 5 has obtained signature and thereafter it was converted as if he has requested to consider his case under general merit category, in collusion with Accused No. 1. CW-28, has made a request as per Annexure-F dated 29th March 2006 in which he gives his consent to consider his case under general merit category. This request was not confronted to the petitioner and also not marked in the charge sheet. CW-28 who is said to have made request on 29th March 2006 has not made any request to consider his case under General Merit category. The learned counsel for the petitioner by referring to the statement made by CW-28 under Section 161 CrPC on 10th October 2011 submitted that CW-28 never referred alleged action by the petitioner. It is stated in 164 statement that his signature has been obtained by an official of KPSC stating he has never spelt out involvement of the petitioner. In the absence of statement made against the petitioner in 161 or in 164 statement, falsely he is implicated in the case, though he has not committed any offence. The petitioner also urged for quashing the proceedings since sanction was not obtained from the competent authority before issuance of process. Hence, he prays that proceedings be quashed.
The common question raised by the petitioner - Accused No. 7 in Crl. Petition No. 4895/2012, Accused No. 6 in Crl. P No. 4894/12 and Accused No. 5 in Crl. P. No. 5083/2012 is that the cognizance taken and proceedings initiated by the learned Magistrate, is without obtaining the sanction from the competent appointing authority. To substantiate the said submission, the learned counsel for the petitioners referred to Section 197 of Cr.P.C. It is true that the said provision requires sanction from the competent appointing authority for the purpose of prosecuting persons for the offences if charges were leveled against them in connection with discharge of duties as public servants. This further mandates that sanction is required not only for the public servants who are in service but sanction is also required for persons on superannuation. In respect of employee of Govt. of India or the State Government employee, their duties are in the nature of public importance which requires sanction if it is found that they are offenders while discharging their duties in the office in which they were functioning. The relevant issue would be whether sanction is required for the offences committed by the public servant during his tenure while working for the public office. The Hon''ble Supreme Court of India in the case reported in R. Balakrishna Pillai Vs. State of Kerala, AIR 1996 SC 901 : AIR 1995 SC 901 : (1995) 4 Crimes 704 : (1995) 9 JT 580 : (1995) 7 SCALE 255 : (1996) 1 SCC 478 : (1996) 6 SCR 236 Supp of the judgment has held as follows:
"6. The next question is whether the offence alleged against the appellant can be said to have been committed by him while acting or purporting to act in the discharge of his official duty. It was contended by the learned counsel for the State that the charge of conspiracy would not attract Section 197 of the Code for the simple reason that it is no part of the duty of a Minister while discharging his official duties to enter into a criminal conspiracy. In support of his contention, he placed strong reliance on the decision of this Court in Harihar Prasad, etc. Vs. State of Bihar, (1972) CriLJ 707 : (1972) 3 SCC 89 : (1972) SCC(Cri) 409 . He drew our attention to the observations in paragraph 74 of the judgment where the Court, while considering the question whether the acts complained of were directly concerned with the official duties of the concerned public servants, observed that it was no duty of a public servant to enter into a criminal conspiracy and hence want of sanction under Section 197 of the Code was, no bar to the prosecution. The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the concerned public servant would depend on the facts of each case. There can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant in or out of office the bar of Section 197(1) of the Code would have no application. Such a view would render Section 197(1) of the Code specious. Therefore, the question would have to be examined in the facts of each case. The observations were made by the court in the special facts of that case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted. It must also be remembered that the said decision was rendered keeping in view Section 197(1), as it then stood, but we do not base our decision on that distinction. Our attention was next invited to a three-Judge decision in B. Saha and Others Vs. M.S. Kochar, AIR 1979 SC 1841 : (1979) CENCUS 461 : (1979) CriLJ 1367 : (1979) 4 SCC 177 : (1979) SCC(Cri) 939 : (1980) 1 SCR 111 . The relevant observations relied upon are to be found in paragraph 17 of the judgment. It is pointed out that the words ''any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'' employed Section 197(1) of the code, are capable of both a narrow and a wide interpretation but their Lordships pointed out that if they were construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed. The right approach, it was pointed out, was to see that the meaning of this expression lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important, and if it falls within the scope of the afore-quoted words, the protection of Section 197 will have to be extended to the concerned public servant.
It is held whether the offences alleged against the appellant can be said to have been committed by him while acting or purporting to act in discharge of his official duty, will require sanction for prosecution, it is not part of the duty of a Minister while discharging his official duties to enter into a criminal conspiracy.
By referring the judgment reported in Harihar Prasad, etc. Vs. State of Bihar, (1972) CriLJ 707 : (1972) 3 SCC 89 : (1972) SCC(Cri) 409 the observation has been made that "It was not duty of public servant to enter into a criminal conspiracy and hence want of sanction under Section 197 of Code was no bar to the prosecution." The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the public servant concerned would depend on the facts of each case.
The observation made by the Hon''ble Supreme Court as referred above clarifies the position that in all circumstances and cases, the sanction is not mandatory to prosecute the public servant. It is also held that if the alleged act of public servant had a direct nexus or relation with the discharge of official duties then the sanction is required. To put briefly, it is the quality of the act that is important and falls within the scope of the above quoted words and permission U/s. 197 of Cr.P.C. will have to be extended to the public servant concerned. If it is found that the offences alleged against public servant is no way connected in discharge of public duties, he is to be prosecuted like any other accused persons.
This Hon''ble Court in an unreported judgment in Criminal Petition No. 4707/2011 C/w. Crl. P No. 4850/2011 disposed of on 21.10.2011 has held on similar lines of the judgment referred above and the same is useful for the purpose of deciding this case. Accordingly some of the judgments have been referred in these cases. In the case of Lalu Prasad @ Lalu Prasad Yadav Vs. State of Bihar through CBI (AHD), Patna, (2007) 1 JT 183 : (2006) 13 SCALE 91 : (2007) 1 SCC 49 : (2006) 10 SCR 251 Supp it is held that in case u/s. 19 of the PC Act, sanction for prosecution in case of public servant no longer holding the post/office is not required, but in respect of a case relating to section 197 of Cr.P.C. sanction is required. In the case of State of Maharashtra Vs. Dr. Budhikota Subbarao, (1993) 1 Crimes 1124 : (1993) 3 JT 373 : (1993) 2 SCALE 36 : (1993) 3 SCC 71 : (1993) 2 SCR 300 it is held that the bar created u/s. 197 is absolute and in the absence of sanction where section 197 applies, cognizance of the offence is barred. In a decision reported State of Orissa through Kumar Raghvendra Singh and Others Vs. Ganesh Chandra Jew, AIR 2004 SC 2179 : (2004) CriLJ 2011 : (2004) 2 CTC 467 : (2004) 4 JT 52 : (2004) 3 SCALE 608 : (2004) 8 SCC 40 : (2004) 1 SCR 504 : (2004) AIRSCW 5256 : (2004) AIRSCW 1926 : (2004) 2 Supreme 757 : (2004) 6 Supreme 509 it has been observed that "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'' make it abundantly clear that the bar in exercise of power by the Court to take cognizance."
In light of the aforesaid judgment, it is clear that it is for the learned Magistrate to exercise his discretionary power and apply his mind in particular offence alleged to have been committed by the public servant, whether it relates to public office while discharging the official duties or not. Section 197 of Cr.P.C. makes inbuilt clarification that if on the face of it, the complainant indicates that the acts alleged are committed in the course of the discharge of official duty, then the requirement of complying with Section 197 Cr.P.C. comes into picture. The absolute power to prosecute the public servant irrespective of whether it relates to discharge of public duties or not, the position of provisions in the code for obtaining sanction, is clarificatory in nature which depends upon each case. The sanction is required if it relates to discharge of official duties and it is mandatory in nature.
In the light of the above observation, the question in the instant case would be whether the sanction is required, if so whether prosecution of these accused is liable to be set aside on the said ground.
In order to answer the said question, I have examined the order passed by this Court in W.P. No. 9098/2009 (GM-RES-PIL) and connected matters filed under Articles 226 and 227 of the Constitution of India wherein it has been ordered to conduct inquiry in respect of irregularities committed by the Commission in respect of recruitment of Gazetted Probationers as notified in the year 1998-1999 and 2004. These writ petitions have been entertained by this Court and a former Judge of this Court has been appointed to monitor the authority in respect of investigation. Pursuant to the order passed by this Court, the investigation has been taken place by filing complaint against these accused persons. It has been held by Hon''ble Supreme Court that Article 226 of the Constitution of India and Section 482 of Cr.P.C. provides inherent power to this Court. The Hon''ble Supreme Court in the case of Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, AIR 1998 SC 128 : (1998) CriLJ 1 : (1997) 8 JT 705 : (1997) 6 SCALE 610 : (1998) 5 SCC 749 : (1997) 5 SCR 13 Supp has held that provisions of Articles 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it. The Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi, AIR 2005 SC 359 : (2005) 99 CLT 348 : (2005) 1 CTC 134 : (2004) 10 JT 303 : (2004) 10 SCALE 50 : (2005) 1 SCC 568 : (2004) AIRSCW 6813 : (2004) 8 Supreme 568 it has been held that the width of the power of the High Court under Section 482 of the code and Article 226 of the Constitution is unlimited whereunder in the interest of justice the High Court can make such orders as may be necessary to prevent abuse of process of any court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal''s case.
It has been held by the Supreme Court in the said case that the power exercised by this Court in a Public Interest Litigation is unlimited and in the interests of justice, direction has been issued to investigate into the matter and monitor the same. When the constitution power has been exercised, the statutory power U/s. 197 of Cr.P.C. is not required since the provision of constitution is superior than the statutory one. Under these circumstances, the submission of the petitioners-accused A4, A5 and A7 to quash the proceedings for want of sanction is to be rejected and accordingly, it is rejected.
The next question would be U/s. 197 of Cr.P.C., it is submission of the learned counsel that in respect of petitioners - accused persons and A2 to A3, A5 and A7, the learned Magistrate has not exercised the power as required U/s. 197 of Cr.P.C. while taking cognizance for the purpose of issuance of process. The case of the prosecution has to be looked into and decision has to be taken when the process is issued to the accused persons. It is further submitted that unless the case is made out by the prosecution, mere issuance of process to the persons asking them to appear before the Court is arbitrary and unnecessary investigation cannot be permitted in respect of the offences by the prosecution unless there are convincing materials and evidence to the satisfaction of the learned Magistrate.
Section 190 of Cr.P.C. enables the Magistrate to take cognizance of the offence. The learned Magistrate can take cognizance of any offences upon receiving the complaint of facts which constitute such offences b) upon police report of such facts. Hence the learned Magistrate cannot take cognizance and issuance of process unless the facts placed in the complaint to be examined which constitute the offence. Merely on the report of the police, the officer has exercised the power and referred it to the learned Magistrate to find out the truth in order to issue process and also to take cognizance. It is submitted by the petitioners that absolutely there was no material in the complaint and also in the charge sheet made by the prosecution. Before proceeding to answer the issue as to whether there was sufficient material available to constitute the offence against these accused persons, I feel appropriate to refer the some of the judgments.
In the case reported in 2015 AIR SCW 3027 in para 23 (MEHMOOD UL REHAMAN vs., HAZIR MOHAMMAD TUNDA & OTHERS) it is held that the satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would prima facie make the accused answerable before the Court. It has also been held that there must be sufficient indication in the order passed by the learned Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of the enquiry or report of investigation under Section 202 of Cr.P.C. if any, the accused is answerable before the criminal court, there is a ground for proceeding against the accused U/s. 204 Cr.P.C. by issuing process for appearance. Application of mind is best demonstrated by the disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 of Cr.P.C. the High Court under Section 482 of Cr.P.C. is bound to invoke its inherent power in order to prevent abuse of power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one''s dignity self-respect and image in the society. Hence the process of criminal court shall not be made a weapon of harassment.
The Supreme Court in the case reported in 2015 AIR SCW 642 in the case of Sunil Bharati Mittal Vs. Central Bureau of Investigation has held that the order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.
The Supreme Court in the case reported in State of Orissa Vs. Debendra Nath Padhi, AIR 2005 SC 359 : (2005) 99 CLT 348 : (2005) 1 CTC 134 : (2004) 10 JT 303 : (2004) 10 SCALE 50 : (2005) 1 SCC 568 : (2004) AIRSCW 6813 : (2004) 8 Supreme 568 has held in para 29 that the width of the power of the High Court under Section 482 of the code and Article 226 of the Constitution is unlimited whereunder in the interest of justice the High Court can make such orders as may be necessary to prevent abuse of process of any court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal''s case.
The Supreme Court in the case of Sanjaysinh Ramarao Chavan Vs. Dattatray Gulabrao Phalke and others reported in Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke(2015) 2 AD 129 : (2015) CriLJ 1259 : (2015) 1 Crimes 90 : (2015) 2 JCC 930 : (2015) 1 RCR(Criminal) 570 : (2015) 1 SCALE 457 : (2015) 3 SCC 123 : (2015) 2 SCJ 253 , has held that,
"19. The expression Cognizance'' has not been defined in the code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means ''become aware of and when used with reference to a court or a Judge, it connotes ''to take notice of judicially''. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of each offence said to have been committed by someone."
Taking Cognizance ''does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of offence. Cognizance is taken prior to commencement of criminal proceedings. Taking cognizance is thus a sine qua non or conditions precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance "
Further the Supreme Court in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, AIR 1976 SC 1947 : (1976) CriLJ 1533 : (1976) 3 SCC 736 : (1976) SCC(Cri) 507 : (1976) SCR 123 Supp has held in para 5 as follows:
"5. xxxxxxxxxxxx Thus it may be safely held that in the following cases an order of the magistrate issuing process against the accused can be quashed or set aside:
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Where the complaint suffers from fundamental legal defects such as want of sanction or absence of a complaint by legally competent authority and the like."
The sum and substance of the judgments referred to above, is that when the discretionary is left to the learned Magistrate, it is not for the High court to interfere. The discretionary is to be read as discretionary of a judge to exercise and that discretionary cannot be further weighed for setting aside the process. But after referring the judgments mentioned above, the whole purpose of taking cognizance of offence U/s. 191(b) Cr.P.C. to commence the proceedings under Chapter 16 Cr.P.C. by issuing process U/s. 204 Cr.P.C. to the accused involved in the case, vitiates if it is not supported by proper materials. Hence there is no point in taking cognizance.
In light of the judgments referred above, in respect of Section 190 Cr.P.C. what is understood by this Court that it is not automatic for the learned Magistrate to issue the process while taking cognizance in most of the circumstances without private complaint or complaint of this nature is made and on the basis of the available materials and report, the cognizance should be taken and process should be issued. Mere ensuring the process by taking cognizance without examining the standard required for the purpose then it results in deprival of status and further arbitrary action against the accused persons. This was emphasized by the Hon''ble Supreme Court in Nagavva''s case where the Magistrate has been given discretionary in the matter and that discretionary is a judicial exercise to be exercised by him. Once the Magistrate has exercised its discretion, it is not for the High Court or even to this Court to substitute its own discretion with that of the Magistrate. The Supreme Court has clarified the discretion while exercising the power U/s. 190 Cr.P.C. and for taking cognizance and issuing process to the accused persons. To examine whether the learned Magistrate has exercised his discretionary power for valid reason or not it will not be possible for this Court to hold as per the decision of the Supreme Court in Naggavva''s case since a detailed order is required for the learned Magistrate for compliance of Section 190 of Cr.P.C. Even then the position of law has been challenged and the Hon''ble Supreme Court has held in the case of Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke(2015) 2 AD 129 : (2015) CriLJ 1259 : (2015) 1 Crimes 90 : (2015) 2 JCC 930 : (2015) 1 RCR(Criminal) 570 : (2015) 1 SCALE 457 : (2015) 3 SCC 123 : (2015) 2 SCJ 253 that in a case like this, the learned Magistrate has failed to exercise his judicial discretionary then by exercising the power U/s. 482 has to be quashed since there is no automatic cognizance and issuing of process against the accused persons.
In the light of the discussions made above, by referring the judgments of the Supreme Court, the question is whether the learned Magistrate has exercised discretionary power which is required U/s. 190 of Cr.P.C. properly or not. It is to be taken note of that the entire proceedings emanates as per the order of this Court in PIL writ petitions wherein for the year 1998-99 and 2004, some irregularities have been alleged. The Hon''ble Division Bench of this Court in PIL writ petitions, directed the CID to make investigation, submit report and appointed the former sitting Judge of this Court to monitor the same and I.O. was directed to place the materials on every alternate days, the learned Magistrate must have taken cognizance and simply issued the process. The submission of these accused persons is that the learned Magistrate has taken cognizance without exercising the discretionary power.
To substantiate the same, the learned counsel for the accused No. 2 has produced II B certificate bearing No. BCM CITY/3262/98-99 dated 9.3.98 at the time of personality test in December, 2006 issued by the office of the Tahsildar, Bangalore North Taluk. However, there is entry in the concerned register of the Bangalore North Taluk Tahsildar''s office with the same office number purported to be issued on 26.6.98. It shows that the candidate did not possess II B Certificate at the time of personality test on 9.3.98. Hence A-2 was charge sheeted because the certificate appears to be fabricated. Hence she has committed criminal offence.
The II B certificate was issued by the Tahsildar''s office on 9.3.98 and the same was produced at the time of personality test. It is the case of the prosecution that during examination, it was noticed that in the register maintained by the Tahsildar, it was dated 26.6.98 and came to conclusion that as on the date it was issued was forged. The said certificate was forwarded to the FSL. In its report dated 27.2.2012, made by the Government of Karnataka in Reg No. FSL(Ba) 233/2012 and Section No. FSL/QD/37/2012 addressed to the Dy. Inspector General of Police, Bangalore in which item No. 9 at ink page 10 pertains to accused No. 2. It has been referred as No. 9 and states that the person who wrote the standard signatures marked as SJ10 to SJ19, RJ7 to RJ12 also wrote the questioned signature marked as QJ2, that means to say the signature of the Tahsildar in II B certificate issued by the Tahsildar and also in the register maintained in the office of the Tahsildar tallies. Being not satisfied with the report of the FSL, this was forwarded to the Truth Lab, Hyderabad and in their report dated 9.3.2012 has stated that the person who wrote the enclosed signatures marked SJ10 to SJ19'' and RJ7 to RJ12 did not write the questioned signature marked as QJ2. There are two opinions expressed in this regard. The opinion of the FSL states that the signature put by the Tahsildar in the certificate and also in the register is one and the same. However, the Truth Foundation at Hyderabad opines that it is not of the same.
In light of the certificate issued by the FSL and the Government of Karnataka to the effect that the signature of the Tahsildhar is one and the same, it is for the Tahsildar to give his opinion as to whether the signature on the register is forged one or not. On the basis of this certificate, A-2 was subjected to personality test and she got succeeded and she was appointed as Tahsildar in the year 2008 and since then she was working. In the complaint report, it is only referred that the signature appears to be fabricated. The words expressed and employed in the police complaint dated 11.8.11, that it appears to be fabricated and she used it knowingly and committed the criminal offence cannot be accepted. The complaint and charge sheet should be specific and should be based on the materials. What has been expressed by the Investigating Officer it might have been fabricated which shall not be sufficient to take cognizance and issue process to accused No. 2. The Investigating Authority who filed the charge sheet for A-2 must have found definite forgery. It may be case of fabrication, but is not a definite case of the prosecution to hold that the forgery has been committed by Accused No. 2.
Under Section 190 of the Code, it is held by the Hon''ble Supreme Court that judicial discretion has to be exercised by the Magistrate. The judicial discretion means it is to be understood as judicial application of mind. It must be on the basis of the material and evidence on record. Hence the prosecution is not definite of commission of the offence.
In respect of accused No. 3 in Crl. Petition No. 3181/2012 in the complaint as per Annexure B dated 11.8.2011 it is alleged that the inquiry reveals that no II-B certificate was issued by the Tahsildar, Bangalore North Taluk and the one enclosed by her to the application is apparently forged document. Hence committed the offence punishable under criminal law. On the basis of the complaint, the investigation must have been done and the charge sheet reveals that having complete knowledge about position of law, created II-B certificate. This claim has been made for selection to Group A and Group B post for the year 1998 selections. By doing so, the right of genuine candidate has been deprived. This certificate produced by the accused was forwarded to the FSL to find out signature of the Tahsildar on the certificate and also in the register maintained in the office, which found to be one and the same. The FSL report at item No. 8 discloses that the person who wrote the standard signature marked as SS1 to SS9 and RS1 to RS56 also wrote the questioned signature marked as QS1. That means to say the Tahsildar''s signature in the certificate and the register is one and the same. Then again the investigating authority has forwarded to the Truth Foundation at Hyderabad and in their report dated 9.3.2012 has opined that the signature did not tally. It is said that the person who wrote the questioned signatures marked SS1 to SS9 and RS1 to R56 did not write the questioned signature marked as QS1. It is of the opinion that the signature did not tally. This was not examined by the learned Magistrate while taking cognizance. The FSL report of State of Karnataka discloses that the signature tallies. It is not known under what circumstances the Investigating Officer has referred the same to the private body and obtained report of this nature which is made available to the Court.
The departmental enquiry was initiated against the Tahsildar and Revenue Inspector, Bangalore North Taluk. In the enquiry, the revenue officer and inspector were examined and in the evidence they have admitted the signature on the certificate and the register as one and the same. Secondly most of the times the entry will not be made on the register immediately but it will be made at the subsequent date. The certificate was issued on 9.3.98 and it was not entered in the register on the same day. But due to pendency of the work, the entry was made on 26.6.98. If at all there is any lapse, it is for the Tahsildhar to maintain the register and the same should have been examined by the Magistrate. The FSL report is in favour of the candidates. This has not been considered by the Magistrate while exercising judicial discretion.
The accused No. 5 has filed Crl. P. No. 5083/2012. It is the gist of the complaint that while he was working as PA to the Member of the Commission, he has obtained the signature of CW 28 who was also candidate appearing for selection and this accused after obtaining the signature requested the Accused No. 1 to consider him under General Merit category instead of IIIA. The requisition made by PW8 was made available in writing and his case was considered under GM category since original IIIA certificate has lost in transit. The statement has been recorded by the police U/s. 161 Cr.P.C. and also forwarded to the learned Magistrate. In both the statements, there is absence for having participated in the incident. On the other hand, he has stated before the learned Magistrate that before entering into court hall, he was called by Accused No. 1 and in turn he has been asked to make request to consider his case under GM category instead of considering the same under III-A. As such, he was forced to make request. Accordingly, he has made written request. In the absence of any complaint either by CW-28 or any person to that effect and in the absence of material against this accused person, he was charge sheeted and cognizance has been taken and process has been issued. It is to be noted that the personal assistant to the Member was deputed to verify the original certificate. There is no specific allegation against this accused by A-1 or CW 28. There was no material how he has been implicated in this case. This aspect has been lost sight of by the learned Magistrate while taking cognizance.
Accused No. 6 is also PS to the sitting member of the KPSC. He was also deputed to verify the original certificate in the hall. It is the case of the prosecution that CW 29 who was candidate for interview and he has claimed to consider his case under III-A and he has been asked by A-1 to give requisition for consideration of his case under GM category since he has also lost the original IIIA certificate during transit. In order to find out the truth in the complaint as well as in the charge sheet, I have examined the letter which is made available in the petition that this CW 29 who had made written request to the accused No. 1 for consideration of his case under GM category. He has made statement U/s. 161 Cr.P.C. to the police wherein he has stated that he has informed one Revanasiddaiah and took him to the chamber, wherein A-1 forced to submit a letter as if he has made such a letter. It is surprising to note that this Revanasiddiah has stated that CW 29 has not been prosecuted and he is not the accused person. Again, the statement of CW 29 has been recorded U/s. 164 of Cr.P.C. before the Magistrate and he has also stated to the Magistrate that Revanasiddaiah took CW 29 before A1 and forced to make written request which is not there either in the complaint or statement made by CW 29.
Accused No. 7 is the petitioner in Crl. P No. 4895/2012. It is further case of the prosecution that while working as P.S. to sitting member of the Commission he was deputed to verify the documents pertaining to the candidates who obtained the signature of CW30. Thereafter the request has been made to A1 for consideration of his case under GM category as the original caste certificate was lost in transit. Though the charge sheet is produced, CW 30 has made statement under Section 161 Cr.P.C. He has made admission under Section 164 Cr.P.C. on two occasions ie., on 13.10.11 and 26.12.11. On both the occasions, he has not referred against this accused. In view of 164 statement, the further statement of CW 30 was recorded on 20.3.11 and he has not spoken anything about A7. There is no material for the prosecution in respect of A-7. Despite the prosecution has impleaded A-7 for the said offence, alleged against A5, 6, and 7 which favoured other candidates who obtained signature and later on it was turned out as if it was a requisition to make selection under GM category Further I have noticed major irregularities in the charge sheet. It is in internal page 4 of the charge sheet which is in Kannada in respect of accused persons, it is referred as A4 whereas it should be A5. If the charge sheet is against A-4 the same number should have been in English against A4 instead, it has been referred as A5. Similarly in internal page 15 of the charge sheet which is in Kannada the accused No. 5 which is in English, it is referred as A6. There cannot be A5 and A6 in respect of the same charge sheet. If it is shown in Kannada as A5, in English also should be A5. However, it has been referred as A6. In internal page 16 in respect of A6 similarly in Kannada it is shown as A6 but in English it is A7. However, it has been referred as M.B. Banakar, A-7. This name of the accused has not found a place in the charge sheet itself. Thus investigation has not been done properly. The Supreme Court in the case of Sanjay Sinh Ramarao Chavan, supra, has held that no doubt it is not innocence but involvement that is material at this stage. Once the legal requirements to constitute the alleged offence qua one of the accused are lacking, there is no point in taking cognizance and proceeding further as against him. It is also held by the Supreme Court that when basic fundamentals are lacking in prosecuting the case for the purpose of obtaining sanction the learned Magistrate under Section 190 of the code should have examined emphatically all the materials and the statements recorded. It is referred in the charges alleged against the accused 2 and 3 that they have submitted a false certificate and charge sheet is to the effect that the accused persons have committed the offence. The charge sheet always should be definite about the commission of the offence and statements made. Even dispute with regard to issuance of certificate, the statutory body has been constituted by the Govt. of Karnataka. These accused should have been examined by the committee. It is common thing to be noted in the case of this nature, issuance of certificate shall not be on the same date.
I am aware that the Hon''ble Supreme Court in the case reported in Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke(2015) 2 AD 129 : (2015) CriLJ 1259 : (2015) 1 Crimes 90 : (2015) 2 JCC 930 : (2015) 1 RCR(Criminal) 570 : (2015) 1 SCALE 457 : (2015) 3 SCC 123 : (2015) 2 SCJ 253 has held that when the discretion is not properly exercised by the Magistrate in taking cognizance, it is for the high court or supreme court to interfere. Further at para 15 it is held that the whole purpose of taking cognizance of an offence u/s. 190(1)(b) Cr.P.C. is to commence the proceedings under Chapter XVI Cr.P.C. by issuing process u/s. 204 Cr.P.C. to the accused involved in the case. The inherent power of this Court is to prevent the miscarriage of justice as it is held by the Supreme Court under article 226 and 482 Cr.P.C. The learned Magistrate has failed to take cognizance judiciously and not verified the documents and not applied his judicious mind. Hence the petitioners succeed. Accordingly, the petitions are allowed. Taking cognizance and issuing process by the Magistrate is set aside. Entire proceedings in CC No. 8400/2012 (Crime No. 46/2011) on the file of 8th Additional Judicial Magistrate at Bangalore is hereby quashed so far as petitioners are concerned. The bail bonds stand cancelled.