Basavarajendra vs State of Karnataka and Others

P.D. Waingankar, J.—This petition under Section 482 of Cr.P.C. is to quash the proceedings in C.C. No. 44/2009 on the file of the Prl. Civil Judge (Sr. Dn.) and JMFC, Jamakhandi.

The petitioner was working as Assistant Commissioner in Jamakhandi. He was appointed as Returning Officer during General Elections held in the year 2008 for Jamakhandi Constituency. On 22.05.2008, while the petitioner along with Police personnel were on patrolling duty in Jamakhandi, they received information that near Mutton Market in Jamakhandi City, the Congress and BJP workers were engaged in canvassing for their respective candidates, even after the expiry of the period for canvassing and that the workers of both parties were fighting each other in violation of the election code. Immediately after receipt of information, the petitioner along with Police Personnel came to the spot, where he saw Congress candidate for Jamakhandi constituency - Siddu Nyamagouda and five others belonging to Congress party and one Sarvottam and five others belonging to BJP party, who were engaged in fighting each other. The Police apprehended all of them and they were arrested. In that connection, complaint came to be lodged by one B.S. Nyamagouda before Jamakhandi Town Police Station. On the basis of which crime No. 77/2008 came to be registered for the offences punishable under Sections 143 , 147 , 323 read with Section 149 of IPC and Section 126 of Representation of People Act. The Police after investigation filed charge-sheet in C.C. No. 214/2008.

Enraged by the same, one Ravindra Basappa Yadahalli, Advocate of Jamakhandi lodged a complaint before Jamakhandi Police Station stating therein that on 21.05.2008 at about 9:45 p.m. while he came out from the house of Siddu Nyamagouda, the petitioner all of a sudden stopped his vehicle, he got down from his vehicle, wrongfully restrained the complainant, abused him in filthy language, snatched lati from the Police Constable and assaulted him with lati. Thereafter, he took gun from his Gunman and attempted to commit murder of the complainant. When the complainant raised hue and cry, the persons from the house of Siddu Nyamagouda namely, G.K. Matad and Bhaskar Badiger came to enquiry about the incident and that time the petitioner also abused them in filthy language and went away in his jeep. The complaint lodged by the complainant Ravindra Basappa Yadahalli against the petitioner came to be registered in crime No. 78/2008 for the offences punishable under Sections 341 , 328 , 324 , 504 , 506(2) of IPC. The Police after investigation filed charge sheet against the petitioner in C.C. No. 44/2009.

The contention of the petitioner is that the prosecution initiated against him without obtaining sanction as required under Section 197 of Cr.P.C. is bad in law, since the alleged offence said to have taken place while he was acting in discharge of his official duty. As such, he filed the instant petition to quash the proceedings in C.C. No. 44/2009.

Upon notice to the other side, I have heard the arguments. Perused the records.

The point that would arise for my consideration is as under:

Whether the alleged offence said to have been committed by the petitioner is while acting or purported to act in the discharge of his official duty as Returning Officer and whether the previous sanction of State Government was condition precedent to initiate the prosecution against the petitioner.

The learned counsel for the petitioner by placing reliance on the decision of the Supreme Court reported in Sankaran Moitra Vs. Sadhna Das and Another, would submit that the alleged offence is said to have been committed, while acting in discharge of his official duty as Returning Officer of the Jamkhandi Assembly Constituency and as such, no cognizance could be taken by the Court except the previous sanction of the State Government. He would further submit that since no such sanction was obtained before filing of the compliant, the complaint was not maintainable in law and therefore, it is liable to be dismissed on the ground alone.

Per contra, the learned counsel for the respondent placing reliance on the decision reported in P.K. Pradhan Vs. The State of Sikkim represented by the Central Bureau of Investigation, , would submit that the petitioner in fact assaulted the complainant with lati and threatened the complainant by taking gun of his Gunman, abused the complainant in filthy language. As such the alleged offence committed by the petitioner were committed not while acting in discharge of his official duty. Therefore, the learned Magistrate is right in taking cognizance and issuing process against the petitioner.

It is not in dispute that the petitioner was working as Assistant Commissioner in Jamkhandi for relevant period. It is also not in dispute that his services were taken by the Election Commissioner for the General Elections held in the year 2008. It is also not in dispute that he was appointed a Returning Officer for the Jamkhandi Assembly Constituency. Further, it is not in dispute that the elections were scheduled to be held on next day of the alleged incident. It is a fact that on 22.05.2008, the workers belonging to the Congress Party and the BJP Party were fighting each other near Mutton Market at Jamkhandi, while canvassing for their respective candidates even after the dead line was over. It has come to the notice of the petitioner being Returning Officer and therefore, immediately he rushed to the spot along with the Police officials and found that the workers belonging to the both the parties were fighting each other. In that connection complaint came to be lodged by one Ravindra Basappa Yadahalli in Crime No. 77/2008. Next day, the advocate filed a complaint against this petitioner, which came to be registered in Crime No. 78/2008. Apart from the merits or otherwise of the allegations made out in the complaint, the crucial aspect to be seen is whether the alleged offence said to have committed by the petitioner were while acting in discharge of his official duty.

In Sankaran Moitra Vs. Sadhna Das and Another, , the three Judges Bench of the Hon''ble Supreme Court held as under:

"A. Criminal Procedure Code, 1973 - S. 197 - Requirement under, of obtaining sanction to prosecute a public servant - Necessity of - Stage for raising question as to applicability of S. 197 - Held (per majority), prosecution hit by provision under S. 197 cannot be launched without the contemplated sanction - It is a condition precedent though the question as to applicability of S. 197 may arise not necessarily at the inception but even at a subsequent stage - Request to postpone the decision on the said question in the instant case, held, not acceptable - Complaint that deceased, a supporter of a political party, was beaten to death by police personnel at the instance of appellant police officer near a polling booth on election day - Appellant was on duty to prevent any breach of law and maintain order on that day - He had reached the spot on receiving information regarding some disturbances at the polling booth - Held, appellant committed the act in question during the course of performance of his duty - Sanction under S. 197(1) was necessary for his prosecution - High Court''s judgment taking contrary view set aside - High Court''s reasoning that killing of a person by use of excessive force could never be performance of duty, not proper - Its further reasoning that if High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, is also not acceptable - Per C.K. Thakker, J. (dissenting), on applicability of S. 197 it is the duty of the Court to apply its mind to the fact situation before it - In the present case the appellant acted illegally, unlawfully and high handedly and his act could not be said to be an act in discharge of official duty - Therefore, S. 197 not attracted."

Thus, from the reading the ratio laid down by the Hon''ble Supreme Court in the aforesaid decision, it is obvious that even after the Government Servant exceeds in discharge of his official duty, Sanction under Section 197 is must and condition precedent. In the case before the Hon''ble Supreme Court, actually a person was killed by the Police Officer in the process of maintaining peace during the election process. The Hon''ble Supreme Court held that it was in the course of discharging of his official duty and therefore, sanction under Section 197(1) was necessary for his prosecution. In the case on hand, the petitioner was taking round in Jamkhandi as Returning Officer so as to observe the violation of the election code by the members of the political parties. Even if, it is presumed that in the said process, he committed the aforesaid offence, it has to be held that they are in discharge of his official duty as Returning Officer. In such circumstance, no cognizance could have been taken by the Court, except previous sanction of the State Government, since no such sanction was obtained before filing the complaint. In that case, continuation of the proceedings against the petitioner would amount to abuse of the process of Court. As such, the complaint and the further proceedings arising out of the said complaint are liable to be quashed. Accordingly, I pass the following:

(i) The criminal petition is allowed.

(ii) The proceedings initiated against this petitioner in C.C. No. 44/2009 arising out of Jamkhandi Town Police Station in Crime No. 78/2008 pending on the file of the Prl. JMFC, Jamkhandi are hereby quashed.