IN THE HIGH COURT OF KARNATAKA AT BANAGALOR
Criminal Petition No: 8624/2016
[Link] … PETITIONER
V/S.
STATE BY MALEBENNURU POLICE … RESPONDENT
STATION AND OTHERS
MEMORANDUM OF OBJECTION / WRITTEN ARGUMENTS WITH
DOCUMENTS ON BEHALF OF THE RESPONDENT NO.2, 3 & 4
MAY IT PLEASE YOUR WORSHIP:
It is most respectfully submitted as under:-
1. Brief Fact of the [Link].729/15 of Trail Court: The land in
[Link].61/P1 measuring 4 acres situated at Komaranahalli Village
was standing in the name of the grandmother of the respondent No.2, 3
& 4 namely Late Vasanada Basamma W/o Bharamappa. The accused
No.1 namely, [Link] who is no way concerned to the said
land and got fabricated the documents and got transferred the said
land. In this regard, the Respondents has filed the private complaint
before the [Link] Judge and JMFC Court, Harihar and the said Court
has referred the matter to the Respondent No.1 Police for investigation.
2. During the investigation, it was found that the accused No:1 fabricated
a false family tree by representing himself as he is the legal hair of
Vasanada Basamma, and also create a false WILL as Vasanada
Basamma execute in the name of him. Based on the false documents
the Petitioner (accused No:2) making a false creation as accused No:1
is the only one son of Vasanada Basamma and Bharamappa and create
a false document and submitted the same to his higher authorities.
After, completion of investigation, the respondent No.1 police have
submitted the charge sheet by adding the name of this petitioner also
as accused No.2, for the offence u/s 465, 467, 470 of IPC.
3. The private complaint does not disclose or mentioned this petitioner as
an accused specifically, but during the course investigation, the IO has
collected the documentary evidence in this case and it prima-facie
show that the involvement of the accused No.2 i.e. present petitioner in
this case.
4. The statements of the all 7 independent witness which are recorded by
the IO, reveals that the petitioner committed offences and he is not an
innocent person. Especially CW7 who is higher officer of petitioner i.e.
Deputy Thashildar Sri Halesh state that ‘CA¢£À ªÀįɨɣÀÆßgÀÄ
ªÀÈvÀÛ UÁæªÀÄ ¯ÉPÁÌ¢üPÁjAiÀiÁVzÀÝ ¨sÀPÀÛªÀvÀì® ºÁUÀÆ
«.n.£ÁUÀgÁd¥Àà E§âgÀÆ ±Á«ÄïÁV ªÁ¸À£ÀzÀ §¸ÀªÀÄä EªÀgÀ
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£ÁUÀgÁd¥Àà FvÀ¤UÉ C£ÀÄPÀÆ®ªÁUÀĪÀAvÉ ºÀPÀÄÌzÁgÀ¼ÁzÀ
Page 1 of 5
§¸ÀªÀÄä EªÀjUÉ ªÀÄÆgÀÄ d£À ªÀÄPÀ̽gÀĪÀÅzÀ£ÀÄß ªÀÄÄaÑlÄÖ,
UÀAUÀªÀÄä M§â¼É ªÀÄUÀ¼ÀÄ CAvÁ £ÀªÀÄÆ¢¹, UÀAUÀªÀÄä EªÀ½UÉ
ªÀÄPÀ̽gÀĪÀÅzÀ£ÀÄß ªÀÄÄaÑlÄÖ UÁæªÀÄ ¯ÉPÁÌ¢üPÁjAiÀiÁzÀ
¨sÀPÀÛªÀvÀì® FvÀ£ÀÄ «.n.£ÁUÀgÁd¥Àà FvÀ£ÀÄ ¤ÃrzÀ CfðAiÀÄ
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£ÁAPÀ: 09/05/2007 gÀAzÀÄ ªÀgÀ¢ §gÉzÀÄPÉÆnÖgÀÄvÁÛ£É. C®èzÉ ¢
£ÁAPÀ 20/06/2007 gÀAzÀÄ UÁæªÀÄ ¯ÉPÁÌ¢üPÁjAiÀiÁVzÀÝ
¨sÀPÀÛªÀvÀì® EªÀgÀÄ «.n.£ÁUÀgÁd¥Àà EªÀgÀ ºÀwÛgÀ
ªÁ¸À£ÀzÀ §¸ÀªÀÄä EªÀjUÉ ªÀÄPÀ̽gÀĪÀÅ¢®è CAvÁ
ºÉýPÉAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ £ÀAvÀgÀ vÀ£Àß ªÀgÀ
¢AiÀÄ°è ªÁ¸À£ÀzÀ §¸ÀªÀÄä EªÀgÀ ªÀÄUÀ¼ÀÄ UÀAUÀªÀÄä½UÉ
£ÀµÀ× ¸ÀAvÁ£ÀªÁVgÀÄvÀÛzÉ CAvÁ ªÀgÀ¢ vÀAiÀiÁj¹gÀÄvÁÛgÉ.
C®èzÉ ªÁ¸À£ÀzÀ §¸ÀªÀÄä EªÀgÀ ºÉ¸Àj£À ¸ÀļÀÄî ªÀÄgÀt ±Á¸À£À
ElÄÖPÉÆAqÀÄ £ÀAvÀgÀ £ÉÊdªÁzÀÄzÉAzÀÄ §¼À¹, CzÀ£ÀÄß «ZÁgÀuÉ
¸ÀªÀÄAiÀÄzÀ°è ªÀiÁ£Àå G¥À«¨sÁUÁ¢üPÁjUÀ¼À £ÁåAiÀiÁ®AiÀÄPÉÌ
¸À°è¹gÀÄvÁÛgÉ.”.
5. In the Charge Sheet, Police have clearly mentioned (page No:5, para
17) that “ ..... J-2 DgÉÆævÀ£ÀÄ J-1 DgÉÆævÀ£ÀÄ ªÁ¸À£ÀzÀ §¸ÀªÀÄä
ºÁUÀÆ ¯ÉÃmï EªÀgÀ M§â£Éà ªÀÄUÀ CAvÀ ¸ÀļÀÄî ¸ÀȵÀ×£É ¤Ãr
EgÀĪÀ zÀ¸ÁÛªÉÃd£ÀÄß vÀAiÀiÁj¹ £ÉÊdªÁzÀÄzÉAzÀÄ vÀ£Àß ªÉÄïÁ
¢üPÁjUÉ ¤ÃrgÀĪÀÅzÀÄ ...... vÀ¤SɬÄAzÀ zÀÈqÀ¥ÀlÖ ªÉÄÃgÉUÉ J-1
DgÉÆævÀ£À «gÀÄzÀÝ PÀ®A 420, 465, 467, 471, 474 L¦¹ jvÁå ºÁUÀÆ J-
2 DgÉÆævÀ£À «gÀÄzÀÝ 465, 467, 470 jvÁå F zÉÆõÁgÉÆÃ¥ÀuÉ
¥ÀnÖ ¸À°è¸À¯ÁVzÉ.”
6. The allegations against the petitioner is that though the original owner
of the land namely Vasanada Basamma had three children, but the
petitioner has got created and fabricated the document that the
accused No.1is the only son to her.
The allegations have been revealed regarding forgery of the
documents and using of forged documents as genuine. The false
creation, forging of documents, in no way, can be held to be an act
done in discharge of official duties. In no way, this act can be held as
done by the public servant within the scope and range of his official
duties for which protection is required u/s 197 of Cr.P.C.
7. If the act or omission is done by performing the official duties and
wrong decision has been taken with bona fide intention or even through
negligence, it will be treated as having reasonable connection with the
performance of the official duties. But in the present case, petitioner
‘sact has been done not with bona fide intention but with mala-fie
intention or against the law or which amounts to commission of offence,
than the sanction u/s 197 CrPC is not necessary.
8. Law laid down in Criminal Appeal No.190 of 2003, Devinder Singh
and others v. State of Punjab through C.B.I., where the Hon'ble
Supreme Court has held that if the acts done by the public servant has
reasonable connection with a purpose of official duty then Sanction
under Section 197 Cr.P.C. is necessary. There must be a reasonable
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nexus of the incident with discharge of official duty, but in the present
case there is no nexus.
9. Petitioner in the above case misuse his position and took decision to
cause wrongful gain to accused No.1 and also himself for causing
wrongful loss to respondents, without any public interest.
In this case petitioner submitted report to his higher officer for
Pouti Khata mutation is of nonsense and falseness. Death certificate is
compulsory for mutate of Pouti Khata, but hear the petitioner gave
report without death certificate of deceased Katha Holder.
The petitioner prepare the report without verifying the documents,
During the preparation of report the petitioner has not conducted
proper enquiry such as local Mahajar and etc.
The petitioner in the report mentioned that ‘the land is in the name
of grand mother (Vasnada Basamma) of applicant (Accused No.1), in
the very next line he mentioned that [Link] (Accused No.1) is
the only son of Bharmappa (husband of Vasanada Basamma). But in the
accepted report of Khata Mutate mentioned that accused No.1 is son of
Vasanad Basamma’s sister. The same is also indicated in the family
tree document prepared by the petitioner.
Like this petitioner prepared the report baselessly and intentionally
for wrongful gain to accused No.1 and also himself. Such act, petitoner,
never be treated as the petitioners’ normal official duties.
So that the petitioner acted beyond in discharge of their official
duties and there is no nexus between the acts committed and his
official duties.
10. In this case the FIR has been registered for the offences u/s 465, 467,
471, 474, 463 and 467. I.O. has already completed the investigation
and filed Charge sheet against the petitioner for offence punishable
under Sections 465, 467, 470 of IPC. Under such circumstances
sanction for prosecution is not required.
When a public servant has allegedly committed the offence of
cheating, criminal breach of trust and misappropriation /embezzlement,
such offence cannot be said to be committed by the public servant
while acting or purporting to act in discharge of official duty, therefore
for such offence, sanction for prosecution is not necessary.
Hon'ble Supreme Court in Inspector of Police and another
[Link] Venkata Ratnam and another, 2015 (3) R.C.R.
(Criminal) 86, in which the Hon'ble Supreme Court has held that
accused a public servant charged with offences under Sections 420,
467, 468 and 477-A IPC, sanction for prosecution is not required. It is
also held that indulgence of the officers in cheating, fabrication of
records or misappropriation cannot be said to be in discharge of their
official duty. Their official duty is not to fabricate (fake) records.
In PRAKASH SINGH BADAL’S case, (at para 49), Apex Court has
held that the offence of cheating under S.420 or the offences relatable
to Ss.467, 468, 471 and 120-B IPC, can by no stretch of imagination, by
their nature, be regarded as committed by any public servant, while
acting or purporting to act, in discharge of their official duty.
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In Bholu Ram Vs. State of Punjab & Anr.( AIR 2008 SC (Supp)
550): the Supreme Court held that the offences alleged to have
committed by the public servant under Sections 409, 420, 467, 468,
471 etc. of IPC cannot be regarded as having been committed while
acting or purporting to act in discharge of official duty and the
proceedings initiated against the public servant should not be quashed
for want of sanction.
Above views are reiterated in State of Kerala Vs.
Padmanabhan Nair {1999 (5) SCC 690}. Both Amrik Singh (supra)
and S.R. Munnipalli (supra) were noted in that case. Sections 467, 468
and 471, IPC relate to forgery of valuable security, Will etc; forgery for
purpose of cheating and using as genuine a forged document
respectively. It is no part of the duty of a public servant while
discharging his official duties to commit forgery of the type covered by
the aforesaid offences. Want of sanction under Section 197 of the Code
is, therefore, no bar.” {See also: Raghunath Anant Govilkar Vs. State of
Maharashtra & Ors.( AIR 2008 SC (Supp) 1486) }
11. In the present case also, the petitioner has allegedly committed offence
of criminal breach of trust and cheating by causing loss to the
respondents. by misappropriating the same. The Charge sheet is based
on the report of enquiry/investigation, therefore, there is prima facie
evidence against the petitioner.
The Apex Court has held in SHAMBHOO NATH MISRA Vs. STATE
OF U.P., (1997) 5 SCC 326,... The protection of sanction is an
assurance to an honest and sincere officer to perform his public duty
honestly and to the best of his ability. The threat of prosecution
demoralizes the honest officer. The requirement of the sanction by
competent authority or appropriate Government is an assurance and
protection to the honest officer who does his official duty to further
public interest. However, performance of official duty under colour of
public authority cannot be camouflaged to commit crime. Public duty
may provide him an opportunity to commit crime. The Court to proceed
further in the trial or the enquiry, as the case may be, applies its mind
and records a find that the crime and the official duty are not integrally
connected.
Protection U/s 197 of CrPC has certain limits and only available to a
public servant for the honest discharge of his duty and is not merely a
colak for doing the objectionable act.
12. In State of Maharashtra & Ors. Vs. Arun Gulab Gawali & Ors (AIR
2010 SUPREME COURT 3762 ): it has been held by the Supreme Court
that powers under Article 226 of the Constitution for quashing criminal
proceedings have to be exercised very sparingly, with circumspection,
that too in very rarest of rare cases.
In Bharat Amratlal Kothari and another Vs. Dosukhan
Samadkhan Sindhi and others ((2010) 1 Supreme Court Cases
234), it has been held that powers under Article 226 cannot be
exercised to quash an FIR which made out prima facie commission of
offence.
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[Link] is appointed by DC not Government so sanction is
not required:-
In ramazan Bi vs Bhimsen Rao (on 21, Jan, 1970, the Hon’ble
Karnataka High Court held that where the power of appointment
and removal has been delegate by the Government to
subordinate authority, no sanction of the Government is
necessary. ‘under Section 16 of the Mysore Land Revenue Act, 1964,
the Deputy Commissioner is the competent authority to appoint Village
Accountants. there is no delegation of the power of appointment by the
Government to the Deputy Commissioner. The words 'subject to the
general orders' used in Section 16 (1) only mean, subject to the general
orders of the Government with regard to the number of appointments
or vacancies, and has no reference to the competency of the Deputy
Commissioner to appoint Village Accountants, Even as per Rule 6 of the
Mysore General Services (Revenue Subordinate Branch) Village
Accountants (Cadre and Recruitment) Rules, 1961, the appointing
authority in respect of Village Accountants, shall be the Deputy
Commissioner of the District. (Bench decision of this Court, C.S.N.
Murthy v. State of Mysore, (1968) 2 Mys LJ 366.) Even assuming that
the power of such appointment is delegated by the Government to the
Deputy Commissioner, once such powers are delegated no sanction of
the Government is required as per Section 197, Criminal Procedure
Code. (Shukla v. Navnit Lal, and Krishna Murthy v. Abdul Subhan, AIR
1965 Mys 128.)
[Link] the above circumstances, it is humbly prayed that:-
A) the Hon’ble Court kindly be pleased to dismiss the petition with
costs in the interest of justice and equity.
B) Without prejudice to the contention taken in this objection it is
submitted that if this Hon’ble Court comes to the conclusion that
the sanction is necessary to prosecute against petitioner ‘quash
the order/cognizance taken by trail court against this petitioner
i.e accused No.2 only. If it will extended to accused No.1. also
then respondents struggle for justice held fruitless and it will
cause irreparable loss to respondents.
C) And also it is humbly prayed to Hon’ble Court kindly be provide
permit or liberty to respondents to file fresh Charge against this
petitioner after taking sanction by appropriate authority in the
interest of justice and equity.
Place: Bangalore Advocate for
Date: Respondent No.2, 3 &4
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