S. Sridhar vs R. Srinivasa and Others

Rathnakala, J—The petitioner herein filed a private complaint under Section 200 of Cr.P.C. against two Officers alleging offences under Sections 167, 197 and 218 read with 34 of IPC. At the relevant time, they were working as an Engineer Member and the Commissioner of Bangalore Development Authority, respectively, thereby were the competent authority to accord permission for the construction and regulation of the buildings.

The quintessence of the complaint allegation was, the complainant purchased 3 residential flats at Phase I of ''O'' Block Platinum City No. 2, HMT Main Road, Yeshwanthpur, Bangalore-560 022. The builder since did not procure Occupancy Certificate and did not provide necessary clearances from the statutory authorities, he had to approach the Consumer Forum for redressal. His complaint was allowed by the Forum. In pursuance of the same, he filed an Execution Petition before the Forum. It is at this stage, the builder approached the accused for favour, they obliged and issued Partial Occupancy Certificate. The first accused has signed the Partial Occupancy Certificate and the second accused has asserted the same. In the process of obtaining Partial Occupancy Certificate, the accused have made illegal gain of over Rs. 50 lakhs. Due to the above action of the petitioners, the complainant suffered a loss of more than Rs. 75 lakhs. He filed a complaint before the Lokayuktha against the accused during February 2011. On coming to know about his complaint, the accused withdrew the Partial Occupancy Certificate. His contentions are upheld by Lokayuktha.

On presentation of the complaint, the learned Magistrate took cognizance of the offence, recorded the sworn statement and after giving audience to the complainant, rejected the complaint. The revision against the said order before the Fast Track Court was of no help to the complainant.

Sri. S.V. Bhat, learned Counsel appearing for the petitioner assailing the order of the Sessions Court submits, the revision petition was dismissed by the Fast Track Court on the ground that complainant had already sold the building, but it was an erroneous inference since he had not approached the Court claiming damages. He has been highlighting the illegal acts committed by the accused persons, i.e., both issuance and recalling of the Partial Occupancy Certificate which is prima facie vitiated and illegal. It is the established legal proposition that anybody can set the criminal law in motion and the question of locus standi does not arise though he resold the flats to the builder. In view of withdrawal of the Partial Occupancy Certificate, he was compelled to sell away the flats to the builder otherwise he could have sold the flats in the open market and would have derived fair sale price. The accused persons have issued Partial Occupancy Certificate only to help the builder from escaping NBW issued against the builder in the execution proceeding before the Forum. The learned Sessions Judge has made another erroneous observation that there is no cause of action for the complaint. But the averments made in the complaint makes out that the Partial Occupancy Certificate was issued in violation of the mandatory sanction from the Department of Fire and Safety and CEIG, hence, issuance of Partial Occupancy Certificate is punishable under the provisions of Sections 167, 197 and 218 of I.P.C. Because of the illegal acts of the accused/respondents, not only he lost his case before the Consumer Forum but also suffered huge loss.

Learned Counsel, hastens to add that his case came to be dismissed by the Fast Track Court for want of sanction from the Government under Section 197 of Cr.P.C; as such, he had sought for sanction to prosecute the accused persons and his application is still pending. As per the judgment of the Apex Court in Dr. Subramanian Swamy Vs. Dr. Manmohan Singh and Another, AIR 2012 SC 1185 : (2012) CriLJ 1519 : (2012) 2 JT 203 : (2012) 1 RCR(Criminal) 720 : (2012) 2 SCALE 12 : (2012) 3 SCC 64 : (2012) AIRSCW 1249 : (2012) 1 Supreme 577 , since sanction was not accorded within three months, it shall be presumed that deemed sanction is accorded. Since the offence is committed by the accused beyond the scope of their official duty, no sanction is required. The learned Revisional Court mistakenly held that the sanction is rejected by placing reliance on one document produced by the accused but the said document was in respect of another case in Crime No. 37/2013 dated 6.8.2013, on the application moved by BMTF seeking sanction to prosecute the very same accused. Under the circumstance, the order of the learned Magistrate and also the Revisional court are liable to be quashed and the petitioner shall be permitted to prosecute his complaint in respect of the malicious acts committed by the accused.

The reply argument advanced by Sri. Nithm R., learned Counsel appearing for respondent No. 1 and Sri. L.M. Chidanandayya, learned Counsel appearing for respondent No. 2 in essence is, issuing of Partial Occupancy Certificate is permissible under exceptional circumstances, vide Clause 5.7 of the Bangalore Mahanagara Palike Building Bye-Laws, 2003. The builder had undertaken by executing indemnity bond in respect of any shortcomings or violation of any statutory provision concerning the building in question, that is why Partial Occupancy Certificate was issued. Subsequently, since it was noticed that despite notice was given, the builder did not respond, neither cleared the pending work nor produced Clearance Certificate from Karnataka Fire and Emergency Service; the Partial Occupancy Certificate was withdrawn. The petitioner has sold the building to his builder for the price higher than the guideline value of the Sub-Registrar. He himself is guilty of selling his flat without Occupancy Certificate. He is alleging about commission of corrupt practice against respondents. On his complaint, the Lokayuktha on enquiry has recommended disciplinary action against the accused vide order dated 29.4.2013. For penal action on the ground of corruption, he has to invoke the special statute i.e., the Prevention of Corruption Act, 1988, before the Special Court constituted for the purpose. He cannot maintain the present complaint under the General Law. He has not suffered any damage by his alleged transaction with his Builder. Even if his execution petition was closed by placing reliance on the Partial Occupancy Certificate, nothing prevented him to file second execution petition after the Partial Occupancy Certificate was withdrawn. The trial court so also the revisional court both on factual analysis have not found any merit in the complaint and the present petition seeking indulgence under Section 482 of Cr.P.C. is liable to be rejected.

In the light of the rival submissions, the point that arises for my consideration is:

"Whether the orders of Courts below deserve to be quashed under the supreme jurisdiction of Section 482 of Cr.P.C.?"

The Revisional Court while endorsing the order of the learned Magistrate has stressed upon want of sanction under Section 197 of Cr.P.C., which is a mandatory requirement to prosecute a public servant. Though the Sessions Court under the mistaken notion holds that the application filed by the complainant seeking sanction is rejected by the Government, the fact remains, no sanction is accorded till now to prosecute the respondents. Though the petitioner leans up on the theory of "Deemed Sanction" in the light of the judgment of the Apex Court in Subramanian Swamy''s case (supra), no such law is laid down in the said judgment about "Deemed Sanction". It was only in the nature of advice, the Parliament was called upon to consider the guidelines (a), (b) and (c). It is in the backdrop of the proposal at (a) and (b), at (c), "At the end of the extended period of time-limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the charge-sheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time-limit. "was meditated upon. Hence, the petitioner cannot press into action the Deemed Sanction as a legal formula. The complaint averment is to the effect that the accused have made illegal gain of over Rs. 50 lakhs in the process of issuing Partial Occupancy Certificate. As noticed, his complaint to the Lokauyuktha alleging corruption has been considered and recommended for disciplinary action and the matter is pending before the Government for necessary action. If he is at bringing the accused to book under criminal justice on the same allegation, he has chosen a wrong forum. When a special statute is enacted to deal with a certain set of circumstances and Special Court is also established, the complainant cannot resort to general law. That apart, he bails out the builder who has allegedly bribed the respondents. The facts and allegation pointed out by him exclusively against respondents is a half story, divorced from its origination, hence absurd and vague. It is also well settled that the acts done in discharge of official duty do not include cases of abuse of power ( Choudhury Parveen Sultana Vs. State of West Bengal and Another, AIR 2009 SC 1404 : (2009) CLT 563 : (2009) CriLJ 1318 : (2009) 234 ELT 196 : (2009) 1 JT 347 : (2009) 1 SCALE 374 : (2009) 3 SCC 398 : (2009) 1 SCR 99 : (2009) 2 UJ 658 : (2009) AIRSCW 861 : (2010) AIRSCW 232 : (2009) 1 Supreme 666 : (2009) 7 Supreme 107 ).

The alleged acts of the respondent in issuing the Partial Occupancy Certificate and subsequently withdrawing the same is not beyond the propriety of their official work. The administrative lapse on the part of the respondents, if any, may at the most attract departmental action in the absence of anything indicating the criminality/mens rea on the part of respondents. The courts below on facts have analyzed that the penal provisions which is sought to be invoked against the respondents i.e., Sections 167, 197 and 218 of IPC are not attracted since the Partial Occupancy Certificate, which is the nucleus of the entire complaint, is not a false Certificate. It is not the contention of the petitioner that the Partial Occupancy Certificate was issued without authority. When the respondents have acted within their official domain, they cannot be roped with culpability on assumption and presumption for the offence under Sections 167, 197 and 218 of IPC. The order of the learned Magistrate is self-evident that he has applied his mind to the allegation made in the complaint and also sworn statement of the complainant with sound judicial reasoning and dismissed the complaint under Section 203 of Cr.P.C. This exercise he ought to have done the very moment he perused the complaint, before taking cognizance.

The Sessions Judge/Fast Track Judge while endorsing the order of the Magistrate has rightly dwelled upon the requirement of Sanction under Section 197 of Cr.P.C. from the government to prosecute the officials/respondents in respect of acts performed by them in their official capacity which the petitioner is trying to give the colour of criminality.

For the discussion made supra, I do not find any merit in the petition, hence decline to quash the orders of the courts below.

Accordingly, the petition is dismissed.