Allowed

Sri. A.M. Naik v. State by Deputy Superintendent

Karnataka HC5 Jul 2022WP/2112/2017

Case brief

AI extract

What is this about?

The High Court allowed the writ petition holding that taking cognizance was without authority of law due to violation of time bar under Karnataka Civil Services Rules and lack of prior sanction for IPC offences against a retired official, thus quashing the proceedings.

What did the court decide?

Impugned proceedings in Spl.C.C.No.274/2016 insofar as it relates to accused No.5 are quashed.

Sri. A.M. Naik Vs State by Deputy… — Pension and Retirement Benefits | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 05^TH DAY OF JULY, 2022

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BEFORE

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THE HON’BLE Mr. JUSTICE HEMANT CHANDANGOUDAR

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WRIT PETITION No.2112 OF 2017 (GM - RES)

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BETWEEN :

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SRI. A.M. NAIK, S/O LATE M.B.NAIK, AGED 61 YEARS, RETIRED ENGINEER IN CHIEF, BRUHATH BENGLAURU MAHANAGARA PALIKE, RESIDING AT NO.1592, SHIVAKRUPA, 6^TH MAIN, E BLOCK, RAJAJINAGAR, 2^ND STAGE, BENGALURU – 560 010.

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...PETITIONER

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(BY SRI.VIJAYA KUMAR, ADVOCATE)

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AND :

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STATE BY DEPUTY SUPERINTENDENT OF POLICE, C I D, CARLTON HOUSE, PALACE ROAD, BENGALURU – 560 001.

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THE COMMISSIONER, BRUHATH BENGALURU MAHANAGARA PALIKE, N R SQUARE, BENGLAURU – 560 002.

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...RESPONDENTS

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(BY SRI.PAVAN, ADVOCATE FOR SRI.H.V.DEVENDRAPPA, ADVOCATE FOR R2;

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SRI.ROHITH B.J., HCGP FOR R1))

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C. PRAYING TO GRANT AN INTERIM ORDER TO STAY ALL FURTHER PROCEEDINGS PURSUANT TO FILING OF THE CHARGE-SHEET IN SPECIAL C.C.NO.274/2016 (CRIME NO.4/2011) ON THE FILE OF 11TH ADITIONAL CITY CIVIL JUDGE & SESSIONS JUDGE, BENGALURU VIDE ANNEXURE-A AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The first respondent-Police after investigation submitted the charge sheet for the offences punishable under Sections 120B, 409, 465, 468, 477A of IPC read with Sections 13(1)(c) and (d) and 13(2) of Prevention of Corruption Act, 1988 alleging that petitioner-accused No.5, who was working as a Chief Engineer, BBMP from 30.08.2007 to 15.12.2008 and was also the competent authority for granting technical sanction and also the member of Tender Committee, colluded with the other accused, said to have cheated the Exchequer by causing loss of Rs.22,47,369/- by incorporating PWD-SR rates instead of incorporating NH-SR rates.

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Learned Special Session Judge accepted the charge sheet and took cognizance of the offences punishable under Section 13(1)(c) and (d) and Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 120B, 409, 465, 468 and 477A of IPC. Taking exception of the same, the petitioner-accused No.6 is before this Court.

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Learned counsel appearing for the petitioner

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submits that the alleged cheating and misuse of power by accused No.5 was during the execution of work for the period 2007-2008, however, charge sheet was filed on 03.06.2016, after expiry of more than four years from the alleged incident and same is barred in view of Rule 214(3) and Sub-Rule-(6)(b) of Rule 214 of the Karnataka Civil Services Rules (for short 'the Rules'). He further submits that the offences are alleged to have been committed by the petitioner-accused No.5 in the course of discharging official duties and in the absence of an order granting sanction to prosecute the

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petitioner-accused No.5 as specified under Section 197 of Cr.P.C., the cognizance taken by the learned Sessions Judge, is one without authority of law. In support of his contention he places reliance on the decision of the Hon'ble Apex Court in the case of State of Punjab Vs. Labh Singh reported in (2014) 16 SCC 807 .

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On the other hand, learned High Court Government Pleader appearing for the respondent-State and learned counsel appearing for respondent-BBMP submits that there is no requirement to obtain prior sanction for prosecuting accused No.5, since the charge sheet was filed after the petitioner-accused No.5 retired from the services. He further submits that the criminal proceedings were initiated within two years from the date of alleged incident and as such, the cognizance taken by the learned Sessions Judge is not contrary to Rule 214(3) and Sub-Rule-(6)(b) of the Rules.

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I have examined the submissions made by the learned counsel for the parties.

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The allegations against the petitioneraccused No.5 is that he has granted technical sanction for the works carried out during the 2007-2008. The FIR was lodged on 03.11.2011 against unknown persons alleging that the officials of BBMP with a common intention to defraud the BBMP have inserted NH-SR rates instead of PWD-SR rates and thus committed loss to the Exchequer. The police after completing investigation submitted the charge sheet against the petitioner-accused No.5 and other accused.

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Rule 214(3) and Sub-Rule-(6)(b) of the Rules, specifies that no judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during re-employment shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution.

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In the present case, the alleged offence of

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misappropriation has taken place during the year 20072008. Though FIR was lodged in the year 2011 against the unknown persons, the charge sheet was submitted on 03.06.2016, after expiry of four years from the date of cause of action arose. Hence, the cognizance taken by the learned Sessions Judge is contrary to the Rule 214(3) and Sub-Rule-6 of the Rules and same is held to be one without authority of law.

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The charge sheet has been filed for the offences punishable under provisions of the Prevention of Corruption Act and also offences under IPC though there is no requirement of obtaining prior sanction for prosecuting petitioner-accused No.5 for the offences punishable under the provisions of the Prevention of Corruption Act, since he had retired from service as on the date of charge sheet was filed. Section 197(1) specifies that no Court shall take cognizance for the offences punishable under the provisions of IPC against

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any person who is or was Judge as Magistrate or public servant not removable from his office without the previous sanction. Hence, the police before submitting the charge sheet for the offences punishable under IPC were required to obtain sanction as specified under Section 197(1) of Cr.P.C. and in the absence of grant of sanction as specified under Section 197(1) of Cr.P.C, the cognizance taken by the learned Sessions Judge insofar as it relates to the offences punishable under the provisions of IPC is held to be one without authority of law.

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In view of the preceding analysis, I am of the view that continuation of criminal proceedings against the petitioner-accused No.5 will be an abuse of process of law and accordingly, I pass the following:

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ORDER

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