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2024 (1) TMI 1544
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....e 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 ....
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....d 28.03.2018 has not been mentioned by respondent No. 2). It may be mentioned that upon the chargesheet being filed in the court of the Additional Civil Judge (Junior Division) and Judicial Magistrate First Class, Belur, the same was registered as C.C. No.116 of 2018. The quash petition of respondent No.2 was registered as Criminal Petition No. 4998 of 2020. The High Court observed that respondent No. 2 was a public servant. The offence complained against him, as per the prosecution, was committed while discharging his duties as a public servant. Investigating officer had sought for sanction to prosecute respondent No.2 but sanction was denied. In such circumstances, High Court held that since sanction was refused, prosecution for criminal offence against a public servant cannot continue. Consequently, the complaint, the chargesheet as well as the order dated 28.03.2018 were set aside by the High Court vide the order dated 25.11.2020. 9. Aggrieved thereby, the complainant as the appellant has instituted the present proceeding. 10. This court by order dated 15.05.2023 granted permission to the appellant to file special leave petition. After condoning the delay, notice was issu....
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.... 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? The competent authority has declined to grant sanction to prosecute. High Court has held that in the absence of such sanction, respondent No. 2 cannot be prosecuted and consequently has quashed the complaint as well as the chargesheet, giving liberty to the appellant to assail denial of sanction to prosecute respondent No. 2 in an appropriate proceeding, if so advised. 17. Section 197 Cr. PC deals with prosecution of judges and public servants. Section 197 reads as under: "197. Prosecution of Judges and public servants: (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (save as otherwise provided in the Lokpal and Lokayuktas Ac....
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....ce therein, except with the previous sanction of the Central Government.] [(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held." 18. As per sub section (1)....
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....Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant whi....
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....y." 23. Thus, this court has been consistent in holding that Section 197 Cr. PC 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 the discharge of official duties. 24. After the hearing was over, learned counsel for respondent No.2 circulated a judgment of this Court in A. Srinivasulu Vs. State Rep. by the Inspector of Police, 2023 SCC OnLine SC 900 in support of the contention that a public servant cannot be prosecuted without obtaining sanction under Section 197 of Cr. PC. We have carefully gone through the aforesaid decision rendered by a two Judge Bench of this Court in A. Srinivasulu (supra). That was a case where seven persons were chargesheeted by the Central Bureau of Investigation (CBI) for allegedly committing offences under Section 120B read with Sections 420, 468, 471 along with Sections 468 and 193 IPC read with Sections 13 (2) and 13(1)(d) of the Prevention of Corruption Act, 1988 (for short 'P.C. Act, 1988'). Four of the accused persons being A-1, A-2, A-3 and A-4 were officials of Bharat Heavy Electricals Limited, a public sec....