DR M BASAPPA REDDY vs. STATE OF KARNATAKA

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2021 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION No.12915 of 2021 (GM-RES)

BETWEEN

DR. M. BASAPPA REDDY, AGED ABOUT 76 YEARS, S/O. LATE MUNIYAPPA, #15, GURAPPA AVENUE, PRIMROSE ROAD, BENGALURU – 560 025.

…PETITIONER

(BY SRI HASHMATH PASHA, SENIOR ADVOCATE FOR SRI NASIR ALI, ADVOCATE)

AND

STATE OF KARNATAKA BY SIT/LOKAYUKTA, BENGALURU – 560 001.

…RESPONDENT

(BY SRI B.S. PRASAD, ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE ORDER DATED 12.02.2021 VIDE ANNEXURE-A PASSED BY THE 23RD ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, IN TAKING COGNIZANCE

2 OF THE OFFENCES AGAINST THE PETITIONER, QUASHING OF THE CHARGE SHEET DATED 01.01.2021 FILED BY THE RESPONDENT VIDE ANNEXURE-B AND QUASHING OF THE FIR IN CRIME No.3/2017 DATED 09.10.2017 VIDE ANNEXURE-C AND ALSO ENTIRE CRIMINAL PROCEEDINGS INITIATED AGAINST THE PETITIONER IN SPL.C.C.No.130/2021 ARISING FROM CRIME No.3/2017 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 409 AND 420 READ WITH SECTION 120(B) OF THE INDIAN PENAL CODE AND SECTION 13(1)(d) READ WITH SECTION 120(B) OF THE INDIAN PENAL CODE AND SECTION 13(1)(d) READ WITH SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988 AND UNDER SECTIONS 21 AND 23 READ WITH SECTIONS 4(1) AND 4(1-A) OF THE M.M.D.R. ACT.

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 24.09.2021 AND COMING ON FOR PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:

ORDER

This petition is filed by the petitioner-accused No.4 under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. for quashing the criminal proceedings in Spl.C.C.No.130/2021 arising out of Crime No.3/2017 for the offences punishable under Sections 409 and 420 read with Section 120(B) of the Indian Penal Code, 1860 (for short 'IPC') and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'P.C. Act').

4 640 acres for a period of 20 years with effect from 06.07.1954. Later with the consent of MSPPL, the lease for mining of manganese ore was transferred to M/s. Deepchand Kishanlal by the State Government vide Notification No.CI 63 MNL 62 dated 20.06.1962, permission was given to M/s. Deepchand Kishanlal to extract the iron ore after obtaining approval of the Government of India. However the lease period was meant for co-terminus with the original lease period of MSPPL and was valid till 05.07.1974. The original lease holder i.e., MSPPL continued to have lease over the entire extent of 640 acres for extraction of kaolin for a period of 20 years from 06.07.1954.

5 Director, Mines and Geology issued a Notification dated 01.04.2005 for third renewal for extraction of fire clay (kaolin) over an area of 130 acres for a period of 20 years which is granted from 06.07.1994. Subsequently, a corrigendum was also issued by the Director, Mines and Geology on 16.06.2005 increasing the area for an extent of 303.10 acres. This lease deed was executed on 02.06.2006.

6 extracted and dispatched by accused No.1-Company. Thereby, they have cheated the Government and caused huge loss. The Lokayuktha Police took up the investigation and it was found that this petitioner-accused No.4 was the then Director of the Mines and Geology Department who had illegally granted permission to accused No.1-Company by issuing a letter on 29.01.2001 despatched on 31.01.2001 permitting the Senior Geologist of Tumkur District to issue permit to accused No.1-Company for removing the iron ore dust. Hence, the Lokayukta Police registered a case and after investigation, they have filed charge-sheet against the accused persons.

7 was no iota allegation against this petitioner in the FIR that the petitioner had either conspired with the other accused or he had directed the Senior Geologist to issue permit for Iron Ore Fines illegally in favour of accused No.1. The letter dated 29.01.2001 was issued to remove the iron ore dust but not iron ore fines. The respondent has failed to consider the said letter which was issued to the Senior Geologist after payment of necessary Royalty to issue permit. The iron ore dust is not considered as iron ore as per the schedule to the Mines and Minerals (Development and Regulation) Act, 1957. The Police have failed to consider the act of the petitioner in writing the letter to the Senior Geologist was in good faith and further contended the that the iron ore dust mined by M/s. Deepchand Kishanlal was legal and it can be transported any time even after the expiry of the lease period on payment of royalty and the same was not considered by the respondent during the Departmental Proceedings. The trial Court has also failed to consider that the act of the petitioner was done purely in discharge of his Official duty,

8 therefore, a sanction under Section 197 of Cr.P.C. is required apart from Section 19 of the P.C. Act for taking cognizance. Therefore, taking cognizance itself is not correct. Hence, prayed for quashing the proceedings.

9 provisions of Sections 21 and 23 read with Section 4(1) and 4(1A) of the MMDR Act. Therefore, prayed for quashing the same.

1) (1999) 5 SCC 690 State of Kerala vs. Padmanabhan Nair.

2) (2016) 2 SCC 143 N.K Ganguly vs. CBI, New Delhi.

3) (2020) 7 SCC 695 D Devaraja vs. Owais Sabeer Hussain.

4) (1996) 1 SCC 478 R Balakrishna Pillai vs. State of Kerala and Another.

10 matter as there is no valid permit for the petitioner for extracting the iron ore. The act of the accused is not in accordance with law which was passed in collusion with accused Nos.1 and 2, therefore, it cannot be considered that the offence committed while discharging the official duty, for obtaining any sanction under Section 197 of Cr.P.C. for filing the charge sheet for the offences punishable under the IPC. That apart, the accused has already retired from the service in the year 2005 itself and as on the date of filing charge-sheet, he was neither the Director nor he was in the service. Therefore, a sanction under Section 19 of P.C. Act is not required.

11 verifying the records, the petitioner directed the Senior Geologist of Tumkur District to issue permission to remove the iron ore dust which is illegal act and further contended that the license was expired after 1994 and a renewal application was also filed and the renewal of license granted only in the year 2006. Such being the case, removing the iron ore dust or giving permission to remove the iron ore dust itself is illegal. Therefore, it cannot be considered that the accused has committed any offence while discharging his official duty, but it is done by him for his pecuniary benefit. Therefore, the question of taking sanction under Section 197 of Cr.P.C. for filing charge- sheet under IPC offences does not arise. Therefore, he has contended that the petitioner is required to face the trial and hence, prayed for dismissing the petition. In support of his arguments, he has relied upon the following judgments which are as under:

1) 2004 (2) SCC 349 State of

Himachal Pradesh vs. M.P.

Gupta.

2) (2015) 13 SCC 87 Inspector of

Police & Others vs. Battenapatla

Venkata Ratnam & Another.

3) (1999) 5 SCC 690 State of Kerala

vs. Padmanabhan Nair.

4) Unreported judgment of the High Court of

Karnataka passed in Crl.P.No.1958/2017

and connected matters in the case of

K.M.Vishwanath vs. State of Karnataka

and Crl.R.P.No.1313/2019 in the case of

Syed Sameer Pasha vs.State of Karnataka

through Karnataka Lokayukta.

13 from the service for initiating proceedings for the offences punishable under the IPC as well as P.C. Act.

"23. Mr. Gopal Subramanium, the learned Senior Counsel on behalf of some of the appellants has further rightly placed reliance upon the judgment of a three-Judge Bench of this Court in Amrik Singh v. State of Pepsu to buttress the contention that the issue of requirement of prior sanction under Section 197 CrPC can be raised at any stage of the proceedings, and not just at the stage of framing of charges. The decision in Hori Ram Singh was also quoted with approval, especially the categorisation of situations in three scenarios, as under:

(Amrik Singh case, AIR p.311, para 6)

a) Decision which held that sanction was

necessary when the act complained of

attached to the official character of

the person doing it;

b) Judgments which held that sanction

was necessary in all cases in which the

official character of the person gave

him an opportunity for the commission of

the crime; and

c) Those which held it was necessary when

the offence was committed while the

accused was actually engaged in the

performance of official duties.

It was further held in the Amrik Singh case that: (AIR p.312, para 8)

"8.The result of the authorities may thus be summed up: it is not every offence committed by a public servant that requires sanction for prosecution under Section 197 CrPC; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of his directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would

15 be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of grant of sanction, which must precede the institution of the prosecution.” (emphasis supplied)

“… A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty.”

16 entrance door of the house and interfered with the boxes and drawers of the tables. It was also alleged by the appellant therein that the officials tied him and beat him up. Upon an enquiry of the said complaint, the Magistrate came to the conclusion that a prima facie case had been made out and issued process. During the course of trial, the issue pertaining to want of sanction was urged. This Court held as under: (AIR p.48, para 15)

“15. … Article 14 does not render Section 197 of the Criminal Procedure Code 'ultra vires' as the discrimination is based upon a rational classification.

Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard.” (emphasis supplied)

On the other hand, ordinary citizens not so engaged do not require this safeguard. It was further observed that: (AIR p.48, para 15)

"15. ……Whether sanction is to be accorded or not is a matter for the government to consider.

17 The absolute power to accord or withhold sanction on the Government is irrelevant and foreign to the duty cast on that court, which is the ascertainment of the true nature of the act.”

The Court finally summed up the result of the discussion as follows: (AIR p.49, para 19)

"19. …There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.” (emphasis supplied)

18 transferring the plot in question in favour of the aforesaid Society, allotted in favour of ICMR for the purpose of construction of the flats and allotting the same in favour of the employees of ICPO-ICMR Society without obtaining the order from either CEO or Chairman of NOIDA with a motive to make wrongful gain for themselves after entering into a conspiracy cannot be said to be an act that has been carried out in discharge of their official duty. The learned Additional Solicitor General placed reliance on the following paragraphs of the Prakash Singh Badal case: (SCC pp.37-38, paras 49-50) “49. Great emphasis has been laid on certain decisions of this Court to show that even in relation to offences punishable under Sections 467 and 468 sanction is necessary. The foundation of the position has reference to some offences in Rakesh Kumar Mishra case. That decision has no relevance because ultimately this Court has held that the absence of search warrant was intricately (sic linked) with the making of search and the allegations about alleged offences had their matrix on the absence of search warrant and other

19 circumstances had a determinative role in the issue. A decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context.

20 Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be. 68. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government sanction for initiation of criminal action against him.

21 74. It is well settled that an application under Section 482 of the Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court. 75. There is also no reason to suppose that sanction will be withheld in case of prosecution, where there is substance in a complaint and in any case if, in such a case, sanction is refused, the aggrieved complainant can take recourse to law. At the cost of repetition it is reiterated that the records of the instant case clearly reveal that the complainant alleged of police excesses while the respondent was in custody, in the course of investigation in connection with Crime No.12/2012. Patently

22 the complaint pertains to an act under colour of duty. 76. Significantly, the High Court has by its judgment and order observed: (H.Siddappa case, SCC OnLine Kar para 5)

23 learned counsel for the State that the charge of conspiracy would not attract Section 197 of the Code for the simple reason that it is no part of the duty of a Minister while discharging his official duties to enter into a criminal conspiracy. In support of his contention, he placed strong reliance on the decision of this Court in Harihar Prasad vs. The State of Bihar. He drew our attention to the observations in paragraph 74 of the judgment where the Court, while considering the question whether the acts complained of were directly concerned with the official duties of the public servants concerned, observed that it was no duty of a public servant to enter into a criminal conspiracy and hence want of sanction under Section 197 of the Code was no bar to the prosecution. The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the public servant concerned would depend on the facts of each case. There can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant in or out of office the bar of Section 197(1) of the Code would have no application.

24 Such a view would render Section 197(1) of the Code specious. Therefore, the question would have to be examined in the facts of each case. The observations were made by the Court in the special facts of that case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted. It must also be remembered that the said decision was rendered keeping in view Section 197(1), as it then stood, but we do not base our decision on that distinction. Our attention was next invited to a three-Judge decision in B. Saha & Ors. vs. M.S. Kochar. The relevant observations relied upon are to be found in paragraph 17 of the judgment. It is pointed out that the words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed Section 197(1) of the code, are capable of both a narrow and a wide interpretation but their Lordships pointed out that if they were construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of

25 an official duty to commit an offence, and never can be". At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed. The right approach, it was pointed out, was to see that the meaning of this expression lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important, and if it falls within the scope of the afore-quoted words, the protection of Section 197 will have to be extended to the concerned public servant."

26 Court has held at paragraph Nos.6, 7 and 8 which are as under: "6. The correct legal position, therefore, is that an accused facing prosecution for offences under the PC Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. So the High Court was at any rate wrong in quashing the prosecution proceedings insofar as they related to offences under the PC Act.

27 duties. Following the above legal position it was held in Harihar Prasad as follows: (SCC p.115, para 66)

"As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409, Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."

28 offences in which the common component is criminal breach of trust. When the offender in the offence under Section 406 is a public servant (or holding any one of the positions listed in the section) the offence would escalate to Section 409 of the Penal Code. When this Court held that in regard to the offence under Section 409 of IPC read with Section 120-B it is no part of the duty of the public servant to enter into a criminal conspiracy for committing breach of trust, we find no sense in stating that if the offence is under Section 406 read with Section 120-B IPC it would make all the difference vis-à-vis Section 197 of the Code."

29 public servant while engaging in the performance of his official duty which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty shall require sanction for the prosecution and if the quality of the act is important and if it falls within the scope of the above said observation, then the protection under Section 197 of Cr.P.C. will have to be extended. If the act is done in collusion with the co- accused without following the procedures and committed any offence under the IPC while discharging duty or any conspiracy with the co-accused, then the protection under Section 197 Cr.P.C. is not entitled and launching the prosecution has no bar.

30 accordance with law, it has to be granted, if the application filed by the existing lessee or new applicant under Section 27 of the MMDR Act. Admittedly, accused No.1 has obtained lease for 20 years for excavation of fire clay, but not for excavating the iron ore. Admittedly, accused No.1 has given sub-lease to one Deepchand Kishanlal for extracting iron ore in the year 1962 and the said lease period was already expired in the year 1994. Subsequently an application for renewal of the licence has been filed which was granted only in the year 2005 for excavation of fire clay but not iron ore. Admittedly, accused No.1 moved an application for removing the iron ore dust before the Senior Geologist, Department of Mines and Geology, Tumkur District and the same was forwarded to the petitioner who is the Director of the Department. The petitioner vide letter dated 29.01.2001 despatched on 31.01.2001 has accorded permission to remove the iron ore dust and for the convenience, the letter issued by the petitioner reads as under:

31 GOVERNMENT OF KARNATAKA

No.IMG 172 AML 93/15585-86

Office of the Director,

Department of Mines and Geology,

No.49,Khanija Bhavan,

Race Course Road, Bengaluru-1,

dtd.29.01.2001.

0932

Despatched on 31.01.2001

To The Senior Geologist, Department of Mines and Geology, Tumkur District.

Sub: Issue of Mineral Despatch permite - reg.

Ref : Applicants request dt.21.11.2000. **** Advertising to the subject cited above the applicant has requested to issue movement permite for the old worked pits for Iron ore. A copy of the representation is herein enclosed it is self explanatory.

Hence you are hereby requested to inspect the leased area and to ascertain the stock position of Iron ore dust and to issue movement permite for the dumped stock only, on payment of necessary royalty.

Yours faithfully,

SD/-

DIRECTOR Copy to: The Mysore Stoneware Pipes & Potteries Limited,

P.B.No.9537, 6th cross Road, Gandhinagar,

Bangalore-560009 for information.

DIRECTOR

33 dust on payments, the petitioner issued the order to the Senior Geologist, Tumkur District for according permission to remove the iron ore dust even though there is no licence enforcing at that time. Learned Senior counsel for the petitioner also produced the note sheet of the Mines and Minerals Department, Tumkur where a note was put up on the letter sent by accused No.1-Company and this petitioner has given permission and based upon the permission, the Department has accorded permission to accused No.1 to remove the iron ore dust. The documents were produced herein to show that the accused already removed the iron ore dust by paying some royalty. But the fact remains whether the iron ore or iron ore dust cannot be sold without proper licence. Accused No.1 has no authority to sell the same without obtaining the licence. It is an admitted fact that no such licence has been granted to accused No.1 by the Authorities and the note put up by the official in the Mines and Mineral Department, Tumkur clearly reveals that the permission granted by the Department is only based upon the permission ordered by

34 the petitioner being a Director of the Mines and Geology Department on 29.01.2001. On perusal of the entire records, it is a clear violation of Rules and Regulation by this petitioner, he has exceeded the power and without following the procedures has accorded the permission to accused No.1 to remove the iron ore dust. The documents reveal that the iron ore contain nearly 68% of the iron. Therefore, looking to every angle, it reveals that the conspiracy between petitioner and accused No.1 is nothing but illegal transportation of iron ore. Therefore, no protection is available to the petitioner under Section 197 of Cr.P.C. for initiating prosecution against him under the cases registered against him for the offences punishable under the IPC. As regards to the Prevention of Corruption Act, he has already retired from service in the year 2005 itself, therefore question of getting sanction under Section 19 of P.C. Act is not necessary. The contention raised by the petitioner counsel that launching of the prosecution against the petitioner is abuse of process of law and it cannot be acceptable and on the other hand, the illegal

35 mining were detected by the Special Investigation Team appointed by the Hon'ble Supreme Court. Otherwise, the truth could have buried by accused No.1 who had hand in gloves with the officials of the Mines and Mineral Department.

37 upheld and the trial Court is directed to take appropriate cognizance in respect of the offences committed under the MMDR Act and proceed with the trial by clubbing both the cases.

Sd/- JUDGE

GBB