M. Thippesha and Others vs S. Pushpalatha

A.N. Venugopal Gowda, J.—This petition, under S. 482 Cr.P.C., is directed against an order dated 30.03.2011, passed in C.C. No. 413/2011 by the JMFC, Sira and also to quash the proceedings of the said case (PCR No. 43/2010).

Petitioner No. 1 worked as Commissioner in City Municipal Council, Sira from 16.03.2009 to 15.06.2010. 2nd petitioner worked as Junior Engineer therein from March 2007, up to 26.06.2010. City Municipal Council, Sira had invited tenders on 30.06.2009, with the approval of the Deputy Commissioner and Director of Municipal Administration, for construction of six Welcome Arches, at Sira City entrances. Out of the three bidders, M/s. Bhumi Engineers, Bengaluru became the successful bidder and was allotted with the tendered work, as approved by the Deputy Commissioner, Tumkur. Work Order was issued on 09.09.2009. Sri Madhu, an unsuccessful bidder, preferred an appeal and challenged the Work Order issued to M/s. Bhumi Engineers. The Commissioner of Municipal Administration - Appellate Authority, allowed the appeal and set aside orders dated 05.09.2009 and 09.09.2009, in respect of the tender for package-1 i.e., erection of Welcome Arches.

The respondent, a Councilor of City Municipal Council, Sira, filed private complaint in PCR No. 43/2010, in the Court below, against the petitioners, alleging commission of offences punishable under S. 23 of the Karnataka Transparency in Public Procurement Act, 1999 and Ss. 107, 119, 116, 197, 198, 199, 200, 217 and 420 of IPC. Sworn statement was recorded on 31.07.2010 and cognizance having been taken and process having been issued to the petitioners, this petition was filed.

Sri Subramanya Bhat, learned advocate, firstly contended that the complaint being false, frivolous and vexatious, is nothing but abuse of process of law. Secondly, sanction of the Government, as required under S. 197 of Cr.P.C., which is a condition precedent to file a private complaint, having not been taken and cognizance taken against the petitioners, public servants, is illegal. Thirdly, there being mechanical act on the part of the learned Magistrate, interference is called for. He submitted that, a reading of the complaint does not disclose the commission of any offence in as much as the petitioners had no role in the matter of awarding of the contract. He submitted that, after the appeal filed by Sri B.R. Madhu was allowed, a second tender Notification was issued and contract having been awarded to Sri Kiran on 05.11.2011, there cannot be any prosecution of these petitioners. He submitted that there being abuse of process by the respondent, the petitioners are entitled to the relief sought in this petition.

Sri Srirangaiah L, learned advocate for the respondents, on the other hand contended that the complaint and the sworn statement having disclosed commission of the offences by the petitioners, learned Magistrate has passed the order dated 30.03.2011 and at this stage, no interference is called for. He sought dismissal of the petition.

Perused the petition and considered the rival contentions. Point for consideration is, whether the petition deserves to be allowed?

The City Municipal Council invited tenders for construction of six Welcome Arches at the City entrances. The Deputy Commissioner, Tumkur District, issued the official memorandum dated 05.09.2009 vide Annexure-A. The 1st petitioner in the capacity as the Commissioner of City Municipal Council, Sira, issued the Work Order dated 09.09.2009 vide Annexure-B, in favour of M/s. Bhumi Engineers. B.R. Madhu, the unsuccessful bidder having filed an appeal assailing the said Memorandum and the Work Order, the Commissioner, Municipal Administration, passed an order dated 18.01.2010 and allowed the appeal, thereby setting aside Memorandum and the Work Order. The City Municipal Council, Sira was directed to issue fresh Notification for the subject work. Fresh tender was accordingly issued vide Annexure-D.

From the perusal of Annexure-A, it is clear that the petitioners did not had any role in accepting the tender or finalizing the same. Pursuant to the Memorandum as per Annexure-A, the Work Order as per Annexure-B was issued. As such, the complaint filed against the petitioners vide Annexure-F is unmerited. The Court below has mechanically passed the Order dated 30.03.2011, without keeping in view the decision in P. Sirajuddin, etc. Vs. State of Madras, etc., . The relevant portion reads as follows:

"17......... Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the, Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner. The enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable. In ordinary depart- mental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge-sheet is for some one in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a charge-sheet is submitted and a full-scale enquiry is launched. When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be resorted to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report." 9. From a reading of the copy of the complaint, even if the allegations made therein are taken at their face value and accepted, do not prima facie constitute any offence or make out a case against the petitioners, to issue process and proceed against them. The first petitioner having issued the Work Order in pursuance of the Memorandum vide Annexure-A issued by the Deputy Commissioner, no offence was committed to institute any proceedings against any of the petitioners.

In the circumstances, the petition being well founded and as the complaint has been instituted with ulterior motive and its continuation being abuse of process, which should not be permitted to be used as a weapon of harassment, it would be waste of public time and money to permit the proceedings to continue against the petitioners. Further, unmerited and underserved prosecution would be infringement of the guarantee under Article 21 of the Constitution of India.

In the result, petition is allowed and the impugned order as well as the entire proceedings of C.C. No. 413/2011 on the file of the JMFC, Sira is quashed.