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SUPREME COURT OF INDIA
ABHAY S. OKA, UJJAL BHUYAN, JJ.
Shadakshari – Appellant
Versus
State Of Karnataka & Anr. – Respondents
Criminal Appeal No. 256 Of 2024
Decided On : 17-01-2024
(A) Criminal Procedure Code, 1973 – Section 197 – Sanction for prosecution of public servant – Object of such sanction for prosecution is to protect a public servant discharging official duties and functions from undue harassment by initiation of frivolous criminal proceedings – Section 197 Cr.P.C. does not extend its protective cover to every act or omission of a public servant while in service – It is restricted to only those acts or omissions which are done by public servants in discharge of official duties. (Paras 19 and 23)
(B) Indian Penal Code, 1860 – Sections 409, 419, 420, 423, 465, 466, 467, 468, 471 and 473 read with Section 149 and Section 34 – Criminal Procedure Code, 1973 – Sections 197 and 482 – Criminal breach of trust, cheating and forgery by public servants – Question whether respondent No.2 was involved in fabricating official documents by misusing his official position as a public servant is a matter of trial – A view can be taken that manufacturing of such documents or fabrication of records cannot be a part of official duty of a public servant – If that be the position, High Court was not justified in quashing complaint as well as charge-sheet in its entirety, more so when there are two other accused persons besides respondent No.2 – Respondent No.2 had unsuccessfully challenged complaint in an earlier proceeding under Section 482 Cr.P.C. – Though liberty was granted by High Court to respondent No.2 to challenge any adverse report if filed subsequent to lodging of complaint, instead of confining challenge to charge-sheet, respondent No.2 also assailed complaint as well which he could not have done – High Court had erred in quashing complaint as well as charge-sheet in its entirety – Order of High Court set aside. (Paras 25 and 26)
Facts of the case:
Challenge made in this appeal is to order dated 25.11.2020 passed by High Court of Karnataka at Bengaluru in Criminal Petition No.4998 of 2020 quashing complaint dated 19.12.2016 lodged by appellant. FIR was registered under Sections 409, 419, 420, 423, 465, 466, 467, 468, 471 and 473 of Indian Penal Code, 1860 read with Section 149 and Section 34 thereof.
Question for consideration in this appeal is whether sanction is required to prosecute respondent No. 2 who faces accusation amongst others of creating fake documents by misusing his official position as a Village Accountant, thus a public servant?
Findings of Court:
Observations made in this judgment are only for the purpose of deciding present challenge and should not be construed as our opinion on merit. That apart, all contentions are kept open.
Result : Appeal allowed.
Key Points: - Section 197 Cr.PC protects public servants only for acts done in discharge of official duties (!) . - Protection does not extend to every act or omission of a public servant while in service (!) . - The question of whether an act was in discharge of official duty is determined by whether the act falls within the scope and range of official duties (!) . - Fabricating records or misappropriating public funds is not an official duty, even if connected to the servant’s position (!) . - Sanction is required before a court can take cognizance of an offence alleged to have been committed by a public servant while acting in discharge of official duty (!) . - An accused public servant’s unsuccessful challenge to the complaint under Section 482 does not permit assailing the complaint directly [p_8, p_25]. - The High Court erred in quashing both the complaint and the chargesheet in its entirety without proper consideration of the trial aspects [p_8, p_25, p_26]. - The appellate court set aside the High Court’s order and allowed the appeal (!) . - Observations in the judgment are limited to the challenge before the court and do not prejudge the merits [p_8, p_26]. - No costs were awarded with the allowance of the appeal (!) .
JUDGMENT :
(Ujjal Bhuyan, J.)
Heard learned counsel for the parties.
2. Challenge made in this appeal is to the order dated 25.11.2020 passed by the High Court of Karnataka at Bengaluru in Criminal Petition No.4998 of 2020 (Sri. Mallikarjuna Vs. State of Karnataka) quashing the complaint dated 19.12.2016 lodged by the appellant; the chargesheet in C.C. No.116 of 2018 including the order dated 28.03.2018 passed therein by the learned Judicial Magistrate First Class, Belur.
3. Facts lie within a very narrow compass. The appellant as the complainant lodged a first information report dated 19.12.2016 (referred to as ‘the complaint’ in the impugned order) alleging that respondent No.2 and another were irregularly creating documents of property in the name of dead person despite knowing the fact that those were fake documents, such as, death certificate, family tree of the original successor of land of the appellant etc. for illegal gain. The said first information was received and registered by Haleebedu Police Station, Belur as Crime No. 323/2016 under Sections 409, 419, 420, 423, 465, 466, 467, 468, 471 and 473 of the Indian Penal Code, 1860 (IPC) read with Section 149 and Section 34 thereof.
4. It may be mentioned that respondent No.2 is working as Village Accountant, Kirigdalu Circle in the district of Hassan, Karnataka State.
5. Respondent No.2 filed a petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.PC) for quashing of the said FIR before the High Court of Karnataka at Bengaluru (‘High Court’ for short). The same was registered as Criminal Petition No.9580 of 2017.
5.1 The High Court in its order dated 05.01.2018 noted that the specific case of the appellant was that land admeasuring 1 acre 13 guntas in survey No.7/6 situated at Chattanahalli Village, Halebeedu Hobli, Belur Taluk, Hassan District belonged to the appellant and his family members. The same was given to accused No.1 for the purpose of cultivation. Accused No.1 in collusion with revenue officials including accused No.2 (respondent No.2 herein) created lot of fake documents in favour of respondent No.1. High Court vide the order dated 05.01.2018 observed that there were specific and serious allegations against respondent No.2 even as to creation of death certificate of a living person. It was observed that a reading of the FIR made out a case for investigation and that it was too premature to interfere with such FIR. Adverting to the case of Lalita Kumari Vs. Govt. of Uttar Pradesh, (2014) 2 SCC 1, the High Court did not interfere though granted liberty to respondent No.2 to seek his legal remedy in the event any adverse report was made.
6. Sub Inspector of Police, Haleebedu Police Station, who was the investigating officer submitted final report under Section 173 of the Cr.PC in the Court of the Additional Civil Judge (Junior Division) and Judicial Magistrate First Class, Belur on 20.03.2018 which was registered as chargesheet No.12/2018. The following persons have been named as accused in the chargesheet:
ii. Accused No.2 - Mallikarjuna (respondent No.2)
iii. Accused No.3 - Manjunath Aras
They have been charged under Sections 471, 468, 467, 465, 420, 409, 466 and 423 read with Section 34 of IPC. The chargesheet also mentions the names of thirty-one witnesses.
7. As per the chargesheet, the deceased husband of witness No.2 Somashekharappa had permitted his deceased younger brother Thumbegowda to use the subject land for cultivation about 40-50 years ago. After the death of Thumbegowda, his son i.e. accused No.1 was cultivating the subject land. During the year 1993, Somashekharappa died but accused No.1 in collusion with accused No. 2 (respondent No.2) created a fake certificate of death to the effect that Somashekharappa had died during the year 2010. In this fake document, father of the deceased Thumbegowda was mentioned as Somashekharappa instead of Sannasiddegowda. By creating such fake document, the accused sought to make
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