Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Online)(KAR) 22977

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2023
BEFORE
THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

CRIMINAL PETITION NO.8568/2018

BETWEEN:

SRI MADAPPA
S/O LATE H.M. MUNIRAJU
AGED 40 YEARS
OCCUPATION: JUNIOR ENGINEER
AT BESCOM, BOMMANAHALLI
SUB-DIVISION-8, HOSUR ROAD
BENGALURU-560 068.
...PETITIONER
(BY SRI PRASANNA KUMAR P., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY MADIVALA POLICE STATION
MADIVALA SUB-DIVISION
BENGALURU CITY, REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
DR. B.R. AMBEDKAR VEEDHI
BENGALURU-560 001.

2. SRI B. PRAKASH BHAT
S/O B. KESHAVA BHAT
#4, SY. NO.5/3, 3RD CROSS
BABU REDDY RASTE
N.G.R. LAYOUT

2

RUPENA AGRAHARA, BOMANAHALLI
BANGALORE-560 068.
...RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP FOR R-1/STATE;
SRI GOWTHAMDEV C. ULLAS, ADVOCATE FOR R-2)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO
QUASH THE ORDER DATED 16.07.2016 PASSED BY THE
LEARNED III ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU CITY, BENGALURU IN C.C.NO.17119/2016 THEREBY
TAKING COGNIZANCE AGAINST THE PETITIONER/ACCUSED
NO.3 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 448,
452, 453 AND 506 READ WITH SECTION 149 OF IPC, AND
ORDERING
TO
REGISTER
CRIMINAL
CASE
AND
ISSUE
SUMMONS.

THIS CRIMINAL PETITION COMING ON FOR FURTHER
DICTATION THIS DAY, THE COURT MADE THE FOLLOWING:

A Magistrate cannot take cognizance of an offence against a public servant without first rejecting the 'B' report submitted by the police, and in the absence of sanction granted by the Disciplinary Authority under Section 197 of Cr.P.C.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 197 - SANCTION FOR PROSECUTION - PUBLIC SERVANT - [Absence of sanction for prosecution of a public servant under Section 197 of Cr.P.C. renders the cognizance taken by the Magistrate without authority of law.]
Fact of the Case:

A private complaint was filed under Section 200 of Cr.P.C. for offences punishable under Sections 448, 452, 453, 506 read with Section 149 of IPC, alleging that the accused trespassed into the subject property and fixed an electrical meter without authorization, and later returned with goondas to demolish the compound wall and fell trees, and also threatened the complainant. The police submitted a 'B' report stating that the dispute was purely civil in nature. The complainant filed a protest petition, and the Magistrate took cognizance of the offences and issued summons to the petitioner-accused No.3, who was a Junior Assistant Engineer in BESCOM.
Finding of the Court:

The court held that the Magistrate erred in taking cognizance of the offences against the petitioner-accused No.3 without first rejecting the 'B' report, as per the decision of the Co-ordinate Bench of the Karnataka High Court in the case of DR.RAVIKUMAR vs. MRS.K.M.C. VASANTHA & ANOTHER. The court further held that the alleged act of commission of the offence against the petitioner-accused No.3 was in the course of discharge of his official duties as a Junior Assistant Engineer, BESCOM, and that in the absence of sanction granted by the Disciplinary Authority to prosecute, as specified under Section 197 of Cr.P.C., the cognizance taken on the aforesaid offence against the petitioner-accused No.3 was without authority of law.
Issues: 1. Whether the Magistrate erred in taking cognizance of the offences against the petitioner-accused No.3 without first rejecting the 'B' report?2. Whether the petitioner-accused No.3, being a public servant, could be prosecuted without sanction granted by the Disciplinary Authority under Section 197 of Cr.P.C.?
Ratio Decidendi: 1. The Magistrate erred in taking cognizance of the offences against the petitioner-accused No.3 without first rejecting the 'B' report, as per the decision of the Co-ordinate Bench of the Karnataka High Court in the case of DR.RAVIKUMAR vs. MRS.K.M.C. VASANTHA & ANOTHER.2. The petitioner-accused No.3, being a public servant, could not be prosecuted without sanction granted by the Disciplinary Authority under Section 197 of Cr.P.C.
Final Decision: The court allowed the criminal petition and quashed the impugned proceedings against the petitioner-accused No.3.

The Respondent No.2 had filed a private complaint under

Section 200 of Cr.P.C. for the offence punishable under Sections

448, 452, 453, 506 read with Section 149 of IPC, alleging that

on 14.04.2012 at about 7 p.m., accused No.2, who is the Junior

Assistant Engineer and accused No.1 had trespassed into the

subject property and fixed the electrical meter to the wall of the

shed unauthorisedly with an intention to knock off the property.

It was further alleged that, on 12.05.2012, accused No.1 along

with ten goondas came with a J.C.B. with an intention to

demolish the compound wall and also to fell the trees standing

on the subject property and also broke open the lock of the shed

and snatched the key of the shed and also threatened the

complainant that they will cause bodily harm, if the complainant

does not leave the subject property.

The learned Magistrate referred the complaint to the

police for investigation under Section 156(3) of Cr.PC. The

Police registered the FIR for the aforesaid offences and after

investigation submitted the 'B' report with the learned Magistrate

stating that the dispute between the parties is purely civil in

nature which is evident from the suit filed by the accused No.1 in

O.S.No.640/2002 against the complainant. The complainant filed

the protest petition to the 'B' report filed by the Police.

The learned Magistrate after recording the sworn

statement of the second respondent took cognizance of the

aforesaid offences and issued summons to the petitioner-

accused No.3. Taking exception of the same, this petition is filed

by the petitioner-accused No.3

Learned counsel appearing for the petitioner-accused

No.3 submits that the learned Magistrate without passing an

order rejecting the 'B' report at the first instance has recorded

the sworn statement and taken cognizance of the aforesaid

offences which is impermissible in view of the decision of the Co-

ordinate Bench of this Court in the case of DR.RAVIKUMAR vs.

MRS.K.M.C. VASANTHA & ANOTHER, reported in ILR 2018

KAR 1725. He further submits that the dispute between the

parties is purely civil in nature which is evident from the suit

pending between the complainant and accused No.1. He further

submits that petitioner-accused No.3 is working as a Junior

Assistant Engineer in BESCOM is a public servant as defined

under Section 21 of IPC and in the absence of permission

granted by the Competent Authority for prosecuting him, as

specified under Section 197 of Cr.P.C., the cognizance taken by

the learned Magistrate is one without authority of law.

On the other hand, the learned HCGP appearing for

the respondent-State would submit that the Police after

investigation has rightly submitted the 'B' report with the learned

Magistrate.

I have examined the submissions made by the

learned counsel appearing for the parties.

The respondent No.2 filed protest petition to the 'B'

report submitted by the Police. The learned Magistrate in the

impugned order though has observed that there are no grounds

to accept 'B' report and to reject the protest petition filed by the

complainant, however, in the operative portion without rejecting

the 'B' report has proceeded to register the case against the

petitioner-accused No.3 for the aforesaid offences. Hence, the

order passed registering the case against the petitioner-accused

No.3 without rejecting the 'B' report at the first instance, and

thereafter recording the sworn statement of the complainant is

contrary to the decision of the Co-ordinate Bench of this Court in

the case of DR.RAVIKUMAR supra.

Admittedly, the alleged act of commission of the

offence against the petitioner-accused No.3 is in the course of

discharge of his official duties as a Junior Assistant Engineer,

BESCOM.

Section 197 of Cr.P.C., specifies that the learned

Magistrate shall take cognizance of the offence against the public

servant only upon sanction granted by the Disciplinary Authority

to prosecute. In the inst

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