Ranganatha D. vs Station House Officer, BMTF Police

Pradeep D. Waingankar, J.—These writ petitions under Articles 226 and 227 of the Constitution of India read with Section 482 of Criminal Procedure Code, 1973 are filed by the petitioners to quash the proceedings in PCR No. 37 of 2016 on the file of IV Additional Chief Metropolitan Magistrate, Bengaluru.

Petitioners 1 to 5 are working as Engineers in different Sub-Divisions of PWD. Petitioner 6 is the Managing Director of Aishwarya Infrastructure and Developers.

One N.R. Ramesh-respondent 2 filed a complaint before the IV Additional Chief Metropolitan Magistrate, Bengaluru in PCR No. 737 of 2016 against all the petitioners and one Umesh, Executive Engineer. The substance of the allegations made out in the complaint is that the complainant is the social worker; he was a Corporator of Yediyur Constituency; Government had sanctioned Rs. 9 crores and 50 lakhs to carry out 24 works of asphalting of roads and other works pertaining to Ward Nos. 139, 140 and 141 in the year 2014-2015; the work was allocated to KRIDL and Aishwarya Infrastructure and Developers; the contractors of KRIDL and Aishwarya Infrastructure and ''Developers; without even completing 5% of the work entrusted to them, they managed to get work completion certificate with the connivance of the petitioners and they were successful in embezzling the amount illegally. When it is brought to the notice of the Deputy Commissioner, he passed a detail order and forwarded the same to the Government for criminal action against all the petitioners 1 to 6 who were hands in glove with the KRIDL and Aishwarya Infrastructure and Developers who cheated and got the amount released based on the bogus bills produced by them. Therefore, the complainant presented a complaint before the Magistrate to take cognizance against the petitioners for the offence punishable under Sections 403, 464, 468, 405 and 420 of Indian Penal Code, 1860. The learned Magistrate by his considered order dated 12-2-2016 referred the complaint for investigation under Section 156(3) of Cr.P.C. to the Station House Officer, BMTF Police Station, Bangalore. To quash the said order passed by the Magistrate, these writ petitions are filed by the petitioners.

The submission of the learned Senior Counsel appearing for the petitioners is that the petitioners 1 to 5 are Government Servants working as Engineers in PWD and therefore the prosecution initiated against them without obtaining an order of sanction from the Competent Authority is bad in law inasmuch as it is liable to be quashed. It is further submitted that if the complaint read as a whole does not make out the ingredients of any of the offences alleged against the petitioners and that the complaint is filed with an ulterior motive just to harass the petitioners who are all public officers. For all these reasons, the learned Counsel sought to quash the proceedings.

The learned Senior Counsel for the petitioners placed reliance on the following decisions in support of his submissions:

(i) State of Uttar Pradesh v. Paras Nath Singh, (2009) 6 SCC 372 : (2009) 2 SCC (L and S) 200 : 2009 Cri. L.J. 3069 (SC) : 2009 AIR SCW 3712.

(ii) Anil Kumar and Others v. M.K. Aiyappa and Another, (2013) 10 SCC 705 : (2014) 1 SCC (Cri.) 35.

(iii) Gopal Das Sindhi and Others v. State of Assam and Another, AIR 1961 SC 986 : 1961(2) Cri. L.J. 39 (SC).

(iv) P.R. Venugopal v. S.M. Krishna, Chief Minister of Karnataka and Others, 2003(6) Kar. L.J. 507.

(v) Guruduth Prabhu and Others v. M.S. Krishna Bhat and Others, 1999 Cri. L.J. 3909 (Kar.).

(vi) Shreekantiah Ramayya Munipalli v. State of Bombay, AIR 1955 Bom. 287 : (1955) 1 SCR 1177 (Bom.).

(vii) Pradip Chandra Parija v. Pramod Chandra Painaik, AIR 2002 SC 296 : (2002) 1 SCC 1.

(viii) N.K. Ganguly v. Central Bureau of Investigation, New Delhi, (2016) 2 SCC 143.

(ix) South Central Railway Employees Cooperative Credit Society Employees Union v. B. Yashodabai and Others, (2015) 2 SCC 727 : (2015) 1 SCC (L and S) 582.

On the other hand, the learned Government Pleader appearing for the respondent I would submit that the question of obtaining sanction arises at the time of taking cognizance based on the charge-sheet filed by the Investigating Officer and since in the case on hand the complaint is referred under Section 156(3) of Cr. P.C. to the police for investigation obtaining of sanction at that stage is not required. Further, learned Government Pleader would submit that the petitioners being the public officers in connivance with the contractors created false documents and thereby caused huge loss to the public exchequer, the charges levelled against them are serious, it requires thorough investigation and having regard to the facts and circumstances of the case, this is not a case to quash the FIR. For all these reasons, the learned Government Pleader has sought for dismissal of the petitions.

The learned Government Pleader placed reliance on the following decisions in support of his submissions:

(i) Judgment of Calcutta High Court in the case of Superintendent and Remembrance v. Abani Kumar Banerjee;

(ii) R.R. Chari v. State of Uttar Pradesh, AIR 1951 SC 207 : 1951 SCR 312 : 1952 Cri. L.J. 755 (SC)

(iii) Narauandas Bhagwandas Madhavdas v. State of West Bengal, AIR 1959 SC 1118 : (1960)1 SCR 93 : 1959 Cri.L.J. 1368 (SC).

(iv) Gopal Das Sindhi''s case;

(v) Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541 : (1964) 5 SCR 37 : 1964 (2) Cri.L.J. 468 (SC).

(vi) Devarapalli Lakshminaravana Reddy and Others v. V. Narayana Reddy and Others, AIR 1976 SC 1672 : 1976 SCC (Cri.) 380 : 1976 Cri. L.J. 1361 (SC) : (1976) 3 SCC 252.

(vii) Tula Ram and others v. Kishore Singh, AIR 1977 SC 2401 : 1978 Cri. L.J. 8 (SC) : 1977 SCC (Cri.) 621 : (1977) 4 SCC 459.

(viii) Judgment dated 13-4-2015 in Criminal Appeal No. 129 of 2013 (Inspector of Police and Another v. Battenapatla Venkata Ratnam and Another, AIR 2015 SC 2403 : (2015) 13 SCC 87 : 2015 Cri. L.J. 2942 (SC).

(ix) Anil Kumar''s case;

(x) State of Madras v. M/s. Gannon Dunkerley and Company (Madras) Limited, (1950-2004) 7 SCST 7123 : AIR 1958 SC 560 : 1959 SCR 379 : (1958) 9 STC 353 (SC).

(xi) Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 : (1955) 2 SCR 925 : 1956 Cri. L.J. 140 (SC).

(xii) Judgment dated 14-12-2015 in Cri. M.C. No. 7331 of 2015 (Maneesh E. v State of Kerala and Others).

It is not in dispute that petitioners 1 to 5 are public servants working as Engineers in PWD in various capacities. It is also not in dispute that petitioners 2, 4 and 5 were employees of BBMP and petitioners 1 and 3 were working in PWD as Engineers. Petitioner 6 is a Class-I Civil Contractor attached to BBMP. The allegations made against them in the complaint no doubt requires thorough investigation. It is not in dispute that in order to prosecute or initiate Prosecution against the public servant, sanction is required under Section 19 of the Prevention of Corruption Act and Section 197 of Cr. P.C. But the controversy involved in this case is whether the sanction is required to be obtained at the time of taking cognizance of the offences by the Court or even at the time of referring the complaint under Section 156(3) to the Police Officer for investigation instead of taking cognizance by the Magistrate. Both the learned Counsel placed reliance on the various decisions to substantiate their conditions.

I have perused all the decisions relied upon by both the learned Counsels. The word cognizance is not defined in Cr. P.C. Therefore, from going through the decision cited by both the paries, more particularly the decision of the Supreme Court in the cases of Dr. Subramanian Swamy v. Dr. Manmohan Singh and Another, Paras Nath Singh and Anil Kumar, it appears to'' me that even at the time of referring the complaint under Section 156(3) against the public servant, the sanction is required The Hon''ble Supreme Court in the decision of Anil Kumar pit to the extent of saying that a complaint led before the Magistrate must be accompanied by an order of sanction to prosecute. Further the complaint is not accompanied by an affidavit of the complainant which is necessary in view of the decision of the Supreme Court in Mrs. Priyanka Srivastava and Another v. State of Uttar Pradesh and Others. Since the complaint is referred to the police for investigation without obtaining an order of sanction, the learned Magistrate gets no jurisdiction to entertain the complaint filed against the petitioners and to refer the same for investigation. From the nature of allegations made against the petitioners in the complaint, it cannot be said that they were not discharging their official duty at the time of commission of alleged offences. Once it appears that they were discharging their official function or official duty, the Magistrate cannot order investigation against them without previous sanction. As such, the proceedings are liable to be quashed.

Accordingly, these petitions are allowed. Proceedings initiated against the petitioners in PCR No. 737 of 2016 on the file of IV Additional Chief Metropolitan Magistrate, Bengaluru are hereby quashed.