Allowed

Sri N B Manjunath v. S.P., Lokayuktha

Karnataka HC5 Oct 2023WP/27255/2018

Case brief

AI extract

What is this about?

The High Court quashed FIRs against forest officers accused under the Prevention of Corruption Act, finding that the trial court mechanically referred the complaint without requiring sanction under Section 114-A of the Karnataka Forest Act and without ensuring compliance with the affidavit requirement under Priyanka Srivastava. The officers had acted in official duty pursuant to court orders.

What did the court decide?

FIR in Crime No.138/2018 on the file of the Principal District and Sessions Judge, Shivamogga, for offence under Section 13(c) of the Prevention of Corruption Act, 1988, quashed.

Sri N B Manjunath Vs S.P., Lokayuktha — Corruption | Karnataka HC (2023)

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NC: 2023:KHC:36446 WP No. 27255 of 2018 C/W WP No. 26001 of 2018 WP No. 25549 of 2018 WP No. 26164 of 2018 WP No. 39337 of 2018 WP No. 28988 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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WRIT PETITION NO. 27255 OF 2018 (GM-RES) C/W

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WRIT PETITION NO. 26001 OF 2018 (GM-RES), WRIT PETITION NO. 25549 OF 2018 (GM-RES), WRIT PETITION NO. 26164 OF 2018 (GM-RES), WRIT PETITION NO. 39337 OF 2018 (GM-RES), WRIT PETITION NO. 28988 OF 2018 (GM-RES)

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IN W.P. NO.27255/2018:

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BETWEEN:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SRI. N.B. MANJUNATH S/O SRI.N.M.BASAVARAJ AGED ABOUT 58 YEARS, WORKING AS DEPUTY CONSERVATOR OF FORESTS, SOCIAL FOREST DIVISION, DAVANAGERE-577213

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(BY SRI. PRAKASH K.M., ADVOCATE)

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AND:

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S.P., LOKAYUKTHA SHIVAMOGGA.

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…PETITIONER

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AMENDED AS PER ORDER OF THIS HON'BLE COURT DATED 03.08.2023.

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SRI. H.T.VENKAPPA S/O THIMMAIAH GOWDA, AGED ABOUT 64 YEARS AGRICULTURIST, RESIDENT OF HOLEKOPPA VILLAGE BASAVANI POST,

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THIRTAHALLI TALUK SHIVAMOGGA DISTRICT-577432

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SRI. H.C. DUGGAPPA GOWDA S/O CHINNAIAH GOWDA, AGED ABOUT 71 YEARS, HOLEKOPPA VILLAGE, BASAVANI POST, THIRTAHALLI TALUK, SHIVAMOGGA DIST. PIN-577432

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SRI. H.D.GURUMURTHY S/O H.C.DUGGAPPA GOWDA, AGED ABOUT 46 YEARS, HOLEKOPPA VILLAGE, BASAVANI POST, THIRTAHALLI TALUK SHIVAMOGGA DIST. PIN-577432

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SRI. N.H.JAGANNATHA S/O H.N. HANUMANTHAPPA, AGED ABOUT 45 YEARS, ASSISTANT CONSERVATOR OF FORESTS, SUBRAMANYA SUB DIVISION, SULLIA-574239

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SMT. N.M. VANATHI AGED ABOUT 31 YEARS, WORKING AS DEPUTY CONSERVATOR OF FORESTS, SHIVAMOGGA DIVISION, SHIVAMOGGA-577201

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SRI.M.R. VIJAYAKUMAR AGED ABOUT 53 YEARS, WORKING AS ASST. CONSERVATOR OF FORESTS, THIRTHAHALLI SUB DIVISION, THIRTHAHALLI-577411

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SRI. M.C.ANNAPPA AGED ABOUT 60 YEARS, WORKING AS ASST. CONSERVATOR OF FORESTS, FMS SQUAD, AYANUR, SHIVAMOGGA TALUK, OFFICE OF THE DCF, SHIVAMOGGA-577201

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SRI. MADHUSUDHAN A., AGED ABOUT 41 YEARS, WORKING AS RANGE FOREST OFFICER, THIRTHAHALLI RANGE, THIRTHAHALLI-577411

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SRI. M.E.SOMASHEKAR AGED ABOUT 53 YEARS, WORKING AS SURVEYOR, CITY SURVEY DEPT, D.C.OFFICE BUILDING, SHIVAMOGGA-577201

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…RESPONDENTS

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(BY SRI. B.B.PATIL, ADVOCATE FOR RESPONDENT NO.1; SMT. SHEELAVATHI K., ADVOCATE FOR RESPONDENT NO.2; VIDE ORDER DATED 04.07.2018, SERVICE OF NOTICE TO RESPONDENT NOS.3 TO 10 IS DISPENSED WITH)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO CALL FOR THE ENTIRE RECORDS ON THE FILE PRL. DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA IN PCR NO.1/2017 AND TO SET-ASIDE THE IMPUGNED ORDER VIDE ANNEXURE-A DATED 13.04.2018 PASSED BY PRL;. DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA IN PCR.NO.1/2017 AND ETC.

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IN W.P.NO.26001/2018:

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BETWEEN:

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SRI. N.H. JAGANNATHA S/O H.N.HANUMANTHAPPA, AGED ABOUT 45 YEARS, ASSISTANT CONSERVATOR OF FORESTS, SUBRAMANYA SUB DIVISION, SULLIA-574 239

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…PETITIONER

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(BY SRI. PRAKASH K.M., ADVOCATE)

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AND:

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SP LOKAYUKTHA SHIVAMOGGA.

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AMENDED AS PER ORDER OF THIS HON'BLE COURT DATED 03.10.2023.

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SRI. H.T.VENKAPPA S/O THIMMAIAH GOWDA, AGED ABOUT 64 YEARS, AGRICULTURIST, RESIDENT OF HOLEKOPPA VILLAGE, BASAVANI POST, THIRTAHALLI TALUK, SHIVAMOGGA DIST., PINCODE-577 432

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SRI. H.C.DUGGAPPA GOWDA S/O CHINNAIAH GOWDA, AGED ABOUT 71 YEARS, HOLEKOPPA VILLAGE, BASAVANI POST, THIRTAHALLI TALUK, SHIVAMOGGA DIST., PIN CODE-577 432

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SRI. H.D.GURUMURTHY S/O H.C.DUGGAPPA GOWDA, AGED ABOUT 46 YEARS, HOLEKOPPA VILLAGE, BASAVANI POST,

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THIRTAHALLI TALUK, SHIVAMOGGA DIST., PINCODE:577 432

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SRI. N.B.MANJUNATH AGED ABOUT 53 YEARS, WORKING AS DEPUTY CONSERVATOR OF FORESTS, SOCIAL FOREST DIVISION, DAVANAGERE-577 213

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SMT. N.M.VANATHI AGED ABOUT 31 YEARS, WORKING AS DEPUTY CONSERVATOR OF FORESTS, SHIVAMOGGA DIVISION, SHIVAMOGGA-577 201.

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SRI. M.R.VIJAYAKUMAR AGED ABOUT 53 YEARS, WORKING AS ASST. CONSERVATOR OF FORESTS, THIRTHAHALLI SUB-DIVISION, THIRTHAHALLI-577 411

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SRI. M.C.ANNAPPA AGED ABOUT 60 YEARS, WORKING AS ASST. CONSERVATOR OF FORESTS, FMS SQUAD, AYANUR, SHIVAMOGGA TALUK. OFFICE OF THE DCF, SHIVAMOGGA-577 201

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SRI. MADHUSUDHAN.A AGED ABOUT 41 YEARS, WORKING AS RANGE FOREST OFFICER, THIRTHAHALLI RANGE, THIRTHAHALLI-577 411

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SRI. M.E.SOMASHEKAR AGED ABOUT 53 YEARS,

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WORKING AS SURVEYOR, CITY SURVEY DEPT. D.C.OFFICE, BUILDING, SHIVAMOGGA-577 201.

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…RESPONDENTS

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(BY SRI. B.B.PATIL, ADVOCATE FOR RESPONDENT NO.1; VIDE ORDER DATED 25.06.2018, SERVICE OF NOTICE TO RESPONDENT NOS.2 TO 10 IS DISPENSED WITH)

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THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO CALL FOR THE ENTIRE RECORDS ON THE FILE PRL. DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA IN PCR NO.1/2017 AND TO SET-ASIDE THE IMPUGNED ORDER VIDE ANNEXURE-A DATED 13.04.2018 PASSED PRL. DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA IN P.C.R.NO.1/2017 AND ETC.

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IN W.P.NO.25549/2018:

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BETWEEN:

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MADHUSUDHAN A., S/O. GOPALAKRISHAN .A, AGED ABOUT 43 YEARS, WORKING AS RANGE FOREST OFFICER, KUDAREMUKHA WILDLIFE RANGE, MUDIGERE TALUK - 577142. CHIKMAGALUR DIST.

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…PETITIONER

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(BY SRI. GADILINGAPPA G.M., ADVOCATE)

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AND:

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THE DEPUTY SUPERINTENDENT OF POLICE, KARNATAKA LOKAYUKTHA, SHIVAMOGGA-577426

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NC: 2023:KHC:36446 WP No. 27255 of 2018 C/W WP No. 26001 of 2018 WP No. 25549 of 2018 WP No. 26164 of 2018 WP No. 39337 of 2018 WP No. 28988 of 2018

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AMENDED BY ORDER DATED 03.08.2023.

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H.T. VENKAPPA S/O THIMMAIAH GOWDA, AGED ABOUT 63 YEARS, OCC: AGRICULTURIST, R/O HOLEKOPPA, BASAVANI POST, THIRTHAHALLI TALUK-577432 SHIVAMOGGA DIST.

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…RESPONDENTS

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(BY SRI. B.B. PATIL, ADVOCATE FOR RESPONDENT NO.1; SMT. SHEELAVATHI K., ADVOCATE FOR RESPONDENT NO.2)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE COMPLAINT AND INITIATION OF PROCEEDINGS IN PCR NO.1/2017 ON THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA BY THE 2^ND RESPONDENT VIDE ANNEXURE-A.

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IN W.P. NO.26164/2018:

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BETWEEN:

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SRI. M.R. VIJAYA KUMAR S/O REVANASIDDAPPA, AGED ABOUT 54 YEARS, ASSISTANT CONSERVATOR OF FORESTS, THIRTHAHALLI WILDLIFE RANGE, THIRTHAHALLI -577 432 SHIVAMOGGA DISTRICT.

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…PETITIONER

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(BY SRI. PARASHURAM R HATTARAKIHAL, ADVOCATE)

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AND:

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THE DEPUTY SUPERINTENDENT OF POLICE KARNATAKA LOKAYUKTHA, SHIVAMOGGA-577426

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AMENDED BY ORDER DATED 03.08.2023.

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H.T. VENKAPPA S/O THIMMAIAH GOWDA, AGED ABOUT 63 YEARS, OCC: AGRICULTURIST, R/O HOLEKOPPA, BASAVANI POST, THIRTHAHALLI TALUK-577432 SHIVAMOGGA DISTRICT.

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…RESPONDENTS

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(BY SRI. B.B. PATIL, ADVOCATE FOR RESPONDENT NO.1; SMT. SHEELAVATHI K., ADVOCATE FOR RESPONDENT NO.2)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE COMPLAINT AND INITIATION OF PROCEEDINGS IN PCR NO.1/2017 ON THE FILE OF THE PRL. DIST AND SESSIONS JUDGE (SPECIAL COURT), SHIVAMOGGA BY THE 2^ND RESPONDENT, PRODUCED AT ANNEXURE-T SO FOR THIS PETITIONER IS CONCERNED.

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IN W.P.NO.39337/2018:

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BETWEEN:

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MR. M.C. ANNAPPA S/O. LATE M. CHOWDAPPA, AGED ABOUT 60 YEARS, RESIDENT OF POLICE LAYOUT VILLAGE, VIVEKANANDA BADAVANE, NEAR SC/ST BOY'S HOSTEL, GADIKOPPA, SHIVAMOGGA-577 201.

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…PETITIONER

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(BY SRI. V.D. RAVIRAJ, ADVOCATE)

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AND:

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STATE BY S.P LOKAYUKTHA, SHIVAMOGGA

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AMENDMENT CARRIED OUT AS PER ORDER DATED 03.08.2023.

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MR. H.T. VENKAPPA S/O. THIMMAIAH GOWDA, AGED ABOUT 64 YEARS

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MR. H.C. DUGGAPPA GOWDA S/O. CHINNAIAH GOWDA, AGED ABOUT 71 YEARS

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MR. H.D. GURUMURTHY S/O. MR. H.C. DUGGAPPA GOWDA, AGED ABOUT 71 YEARS

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RESPONDENT NOS.2 TO 4 ARE RESIDENT OF HOLEKOPPA VILLAGE, BASAVANI POST, THIRTHAHALLI TALUK, SHIVAMOGGA DISTRICT-577 432.

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MR. N.B. MANJUNATHA FATHER NAME NOT KNOWN TO PETITIONER AGED ABOUT 50 YEARS, DEPUTY CONSERVATOR OF FORESTS, SOCIAL FOREST DIVISION, DAVANAGERE-577 213.

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MR. N.H. JAGANNATHA FATHER NAME NOT KNOWN TO PETITIONER AGED ABOUT 45 YEARS, ASSISTANT CONSERVATOR OF FORESTS, SUBRAMANYA SUB DIVISION, SULLIA-574239

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MRS. N.M. VANATHI FATHER NAME NOT KNOWN TO PETITIONER AGED ABOUT 31 YEARS, DEPUTY CONSERVATOR OF FORESTS, SHIVAMOGGA DIVISION, SHIVAMOGGA-577 201.

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MR. M.R. VIJAYA KUMAR

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FATHER NAME NOT KNOWN TO PETITIONER AGED ABOUT 53 YEARS, ASSISTANT CONSERVATOR OF FORESTS, THIRTHAHALLI SUB-DIVISION, THIRTHAHALLI, SHIVAMOGGA-577 411

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MR. MADHUSUDHAN A., FATHER NAME NOT KNOWN TO PETITIONER AGED ABOUT 41 YEARS, RANGE FOREST OFFICER, THIRTHAHALLI RANGE, THIRTHAHALLI, SHIVAMOOGA-577 411

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MR. M.E. SOMASHEKAR FATHER NAME NOT KNOWN TO PETITIONER AGED ABOUT 41 YEARS, SURVEYOR, CITY SURVEY DEPARTMENT, D.C. OFFICE BUILDING, SHIVAMOOGA-577 701.

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…RESPONDENTS

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(BY SRI. B.B.PATIL, ADVOCATE FOR RESPONDENT NO.1;

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SRI. PRUTHVI WODEYAR, ADVOCATE FOR RESPONDENT NOS.3 AND 4;

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SRI. K.M. PRAKASH, ADVOCATE FOR RESPONDENT NO.6; SMT. SUMANGALA NAIK, ADVOCATE FOR RESPONDENT NO.10; NOTICE SERVED ON RESPONDENT NOS.2, 5, AND 8;

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VIDE COURT ORDER DATED 08.01.2020 SERVICE OF NOTICE TO RESPONDENT NO.9 IS HELD SUFFICIENT AND PETITION AGAINST RESPONDENT NO.7 IS DISMISSED )

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JUDGE, SHIVAMOGGA IN P.C.R. NO.1/2017 AND SET ASIDE THE IMPUGNED ORDER DATED 13.04.2018 PASSED BY PRL. DISTRICT AND SESSIONS SHIVAMOGGA IN P.C.R. NO.1/2017 VIDE ANNEXURE-A AND ETC.

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IN W.P.NO.28988/2018:

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BETWEEN:

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SMT. VANATHI M.M. D/O MURUGESHAN K.A. AGEDA BOUT 29 YEARS, WORKING AS A DY. CONSERVATOR OF FOREST, SHIVAMOGGA DIVISION, SHIVAMOGGA-577426

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PRESENTLY RESIDING AT: NO.6/13, THALAIVARA THOTTAM, MALEYALA PATTY, AYILAPATTY POST, VAAZHPADDY TALUK, SELAM DIST-565202, TAMIL NADU STATE. (BY SRI. PARASHURAM R HATTARAKIHAL, ADVOCATE)

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…PETITIONER

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AND:

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THE DEPUTY SUPERINTENDENT OF POLICE KARNATAKA LOKAYUKTA, SHIVAMOGGA-577426 AMENDED VIDE COURT ORDER DATED 03.08.2023.

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H.T. VENKAPPA S/O THIMMAIAH GOWDA, AGED ABOUT 63 YEARS, R/O HOLEKOPPA, BASAVANI POST, THIRTHAHALLI TALUK-577432 SHIVAMOGGA DIST.

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…RESPONDENTS

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(BY SRI. B.B. PATIL, ADVOCATE FOR RESPONDENT NO.1; NOTICE SERVED ON RESPONDENT NO.2)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE COMPLAINT AND INITIATION OF PROCEEDINGS IN PCR NO.1/2017 ON THE FILE OF THE PRL. DIST. AND SESSIONS JUDGE, SHIVAMOGGA BY THE 2^ND RESPONDENT, PRODUCED AT ANNEXURES.

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THESE PETITIONS, 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 petitioners in these petitions have challenged the investigation launched against them by the respondent No.1 in Crime No.7/2018 for the offence punishable under Section 13(c) of the Prevention of Corruption Act, 1988 (for short, ‘the P.C. Act, 1988’).

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The respondent No.2 in these petitions initiated

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a public interest litigation before this Court in W.P No.10053/2001 alleging that the forest land in Sy. No.39

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of Basavani village, Muthur, Thirthahalli Taluk, Shimoga District, was encroached by respondent Nos.5 and 6 therein / respondent Nos.3 and 4 in W.P. Nos.27255/2018, 26001/2018 and 39337/2018 (henceforth referred to as respondent Nos.3 and 4 for the sake of convenience) and that no action was taken by the official respondents to protect the forest land. A Division Bench of this Court in terms of the order dated 22.03.2001, disposed off the writ petition directing the Forest officials / respondent Nos.2 to 4 therein to initiate necessary steps in accordance with law to evict the encroachers, namely, respondent Nos.3 and 4 herein. Respondent No.2 thereafter filed a contempt petition in CCC.No.1903/2001 (Civil) for non-compliance of the order dated 22.03.2001 in W.P. No.10053/2001. A Division Bench of this Court in terms of the order dated 07.08.2001 rejected the contempt petition granting six months’ time from the date of receipt of copy of the said order to the forest officials to comply the order dated

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22.03.2001 passed in W.P.No.10053/2001. Consequent thereto, the survey proceedings were held and the area encroached by respondent Nos.3 and 4 was identified and a corresponding order was passed on 03.04.2002 by the Assistant Conservator of Forests, Thirthahalli Sub-Division, Thirthahalli directing the eviction of respondent Nos.3 and 4 from the encroached land. Respondent Nos.3 and 4 challenged this order in a statutory appeal in Appeal No.11/2002 before the Conservator of Forests, Shimoga Circle, Shimoga / Appellate Authority under Section 64A(3) of the Forest Act, 1963 (for short, 'the Forest Act') . The order dated 03.04.2002 passed by the Assistant Conservator of Forests was confirmed by the Appellate Authority in terms of the order dated 09.05.2003. Respondent Nos.3 and 4 thereafter challenged the said orders before this Court in W.P. No.48315/2003 which was disposed off on 27.02.2007 directing the Assistant Conservator of Forests to obtain a survey report in respect

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of the property granted to the respondent Nos.3 and 4 herein within two months from the date of receipt of a copy of the said order after notifying the respondent Nos.3 and 4 herein. It further directed that if on survey, respondent Nos.3 and 4 herein are found to have encroached into the land belonging to the Forest Department or in possession of excess of land granted to them, the excess land should be taken over by the Forest Department. Consequent to this, the Assistant Conservator of Forests addressed a communication dated 23.02.2008

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to the Range Forest Officer, Survey Division, Shimogga Forest Division, to conduct survey and identify the limits of the land granted to respondent Nos.3 and 4. Consequent thereto, the Surveyor, Thirthahalli and Range Forest Officer inspected the land in Sy. No.39 of Holekoppa village in the presence of respondent No.3 - Sri H.C. Duggappa Gowda and conducted survey and identified limits of the land in question and found that respondent

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Nos.3 and 4 had encroached into a portion belonging to the Forest Department. Consequently, the area encroached by respondent Nos.3 and 4 was identified in the village map and that the area comes under Basavani Forest Range thereafter, steps were taken by the Forest officials for evicting the respondent Nos.3 and 4 from the encroached portion which was evident by a mahazar drawn on 12.06.2008. Long thereafter, the survey sketches dated 20.07.2016 and 07.06.2017 prepared by the Taluk Surveyor, Thirthahlli Taluk were again challenged by the respondent No.3 in W.P No.34491/2017 which is stated to be pending consideration before this Court. Following this, the respondent No.2 - Sri H.T. Venkappa filed a private complaint in PCR No.1/2017 alleging that the respondent Nos.5 to 9 herein and the petitioner in W.P. No.27255/2018 have in tandem colluded with respondent Nos.3 and 4 in falsely claiming that the respondent Nos.3 and 4 were evicted from the land

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belonging to the Forest Department. He specifically stated that respondent Nos.3 and 4 had managed to file application in Form No.53 through Smt.Rukminiyamma, the wife of the respondent No.3 and the mother of the respondent No.4 to the Tahasildar, Thirthahalli, for regularization of encroachment into the forest land and that she had filed affidavits claiming that she was cultivating the said land for more than 25 years since then and that there were areca nut trees in the said portion. Respondent No.2 claimed that this claim of Smt. Rukminiyamma falsified the alleged survey conducted by the officials of the Forest Department and the eviction of respondent Nos.3 and 4 from the said encroached portion. He also alleged that there were no documents available to indicate that the respondent Nos.3 and 4 were evicted from the encroached portion and the mahazar dated 12.06.2008 was not clear as to the extent of the land where areca nut trees were and the number of areca trees

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existing on the encroached portion. Based on this private complaint, the Principal Sessions Judge, Shivamogga (henceforth referred to as the 'Trial Court') exercised jurisdiction under Section 156(3) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C’) read with Section 17 of the P.C. Act, 1988 and referred the case to the Deputy Superintendent of Police, Anti Corruption Bureau (ACB) Police Station, Shivamogga, for investigation and report. Consequent thereto, the FIR in Crime No.7/2018 was registered by the Anti Corruption Bureau Police, Shivamogga, for the offence punishable under Sections 13(c) of the P.C. Act, 1988.

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Being aggrieved by the first information drawn

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against the petitioners' (accused Nos.3, 4, 5, 6, 7 and 8) and the consequent investigation, they have filed these petitions. All of them primarily contend that: (i) the eviction of respondent Nos.3 and 4 was done in the year 2008 and from the year 2008 till 2017, the respondent

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No.2 in these petitions laid low and did not take any action

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if he was not satisfied with the survey and the consequent eviction of respondent Nos.3 and 4; (ii) that the delay was not explained by the respondent No.2; (iii) that the respondent No.2 before filing a private complaint and seeking investigation into the alleged offence was bound to comply with Section 114-A of the Forest Act; (iv) that the respondent No.2 had failed to comply with the requirements of filing an affidavit in support of the private complaint as mandated by the Hon’ble Apex Court in the case of Priyanka Srivastava and another v. State of Uttar Pradesh and others [(2015) 6 Supreme Court Cases 287] . They also claimed that respondent No.2 did not avail the remedy under Sections 154(1) and 154(3) of the Cr.P.C before filing a private complaint. That the petitioners' had all complied the order passed by this Court directing identification of the land encroached by respondent Nos.3 and 4 and their eviction from the

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encroached portion and therefore, they cannot be prosecuted on the premise that the area identified was not the area in unauthorized cultivation of the respondent Nos.3 and 4.

¶160

Per contra, the learned counsel for respondent No.1 submitted that the contention of the petitioners are basically their defence that has to be established by them in the event of a charge sheet being filed against them. He contended that the question whether a permission was to be obtained under Section 114-A of the Forest Act does not arise while conducting an investigation as held by the Hon’ble Apex Court in the case of Anil Kumar and Others v. M.K. Aiyappa and Another [(2013) 10 SCC 705] . He further contended that since the investigation is still on, this Court should refrain from exercising jurisdiction under Section 482 of Cr.P.C.

¶161

The respondent No.2 though served with notice of these petitions, has not entered appearance in some of

¶162

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the petitions while in W.P. Nos.27255/2018, 25549/2018 and 26164/2018 had entered appearance through counsel. She has not appeared in case and therefore, this Court did not have the benefit of her submission.

¶164

I have considered the submissions made by the learned counsel for petitioner/s and learned counsel for respondent No.1 in these petitions and also perused the records.

¶165

The fact that the respondent No.2 was closely pursuing the alleged unauthorized cultivation by respondent Nos.3 and 4 in Sy. No.39 of Basavani village in a public interest litigation that he had initiated is evident from W.P No.10053/2001 (disposed off on 22.03.2001) and the contempt petition in CCC No.1903/2001 (Civil). Following an order passed by this Court in the aforesaid writ petition and the contempt petition, the petitioners have all in their official capacity conducted survey and found that respondent Nos.3 and 4 had encroached into a

¶166

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portion of the land belonging to the Forest Department. However, steps taken by the petitioners was again set at naught by this Court in W.P. No.48315/2003 in terms of the order dated 27.02.2007 whereby the respondent No.3 therein – Assistant Conservator of Forests was directed to obtain survey report in respect of the property of the petitioners therein / respondent Nos.3 and 4 herein and evict respondent Nos.3 and 4 herein after issuing notice to them, from the excess area in their possession. Consequent thereto, steps are taken by the petitioners to identify the area which was encroached into by respondent Nos.3 and 4 and in terms of a mahazar dated 12.06.2008, possession of the encroached area was recovered and the issue was to be put to rest by taking over the encroached portion from the possession of respondent Nos.3 and 4. However, respondent No.2 after nearly 9 years, from the date of recovering such possession, filed the instant private complaint without complying with the requirement

¶168

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of filing an affidavit as mandated by the Hon’ble Apex Court in Priyanka Srivastava’s (supra) case and without resorting to the procedure under Sections 154(1) and 154(3) of the Cr.P.C. and accused the petitioners of colluding with respondent No.3 and 4 in bringing about a fake mahazar and an eviction order. The Trial Court without looking into the question whether the respondent No.2 had complied with the mandatory requirement as specified by the Hon’ble Apex Court in the case of Priyanka Srivastava (supra) and also without looking into the question that there was inordinate delay in lodging the private complaint, mechanically referred the complaint to Deputy Superintendent of Police, ACB Police Station, Shivamogga, for investigation under Section 156(3) of Cr.P.C. for an offence punishable under Section 13(c) of the P.C. Act, 1988 and report. The Trial Court was clearly oblivious of the requirement under Section

¶170

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114-A of the Karnataka Forest Act, 1963 which reads as follows:

¶173

" 114-A. Suits or prosecution in respect of acts done under colour of duty not to be entertained without sanction of the State Government. - (1) In any case of alleged offence or of wrong alleged to have been committed by any Forest Officer, by any act done under colour or in excess of any such duty or authority under this Act, or wherein it shall appear to the Court that offence if committed was of the character aforesaid, the prosecution or suit shall not be entertained except with the previous sanction of the State Government.

¶174

(2) In the case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall be bound to give to the alleged wrongdoer one month's notice at least of the intended suit with sufficient description of the wrong complained of, failing which such suit shall be dismissed.

¶175

(3) The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service, and shall state whether any, and if so, what tender of amends has been made by the defendant. A copy of the said notice shall be

¶176

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annexed to the plaint endorsed with a declaration by the plaintiff of the time and manner of service thereof."

¶178

The Hon’ble Apex Court in the case of D. Devaraja v. Owais Sabeer Hussain [AIR 2020 SC 3292] while considering an analogous provision under Section 170 of the Karnataka Police Act, 1963 held as follows:

¶179

“68. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable

¶180

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for prosecution, he can be prosecuted with sanction from the appropriate government.

¶183

69. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure 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.

¶184

70. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a policeman 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.

¶185

71. 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

¶186

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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.”

¶188

Therefore even in the present case too, the petitioners were also performing an official duty in protecting the interest of the Forest Department and in identifying the area encroached into by respondent Nos.3 and 4. They had also taken steps to recover the encroached portion and therefore, they were entitled to protection under Section 114-A of the Forest Act. A perusal of Section 114A of the Forest Act leaves no doubt that sanction is required not only for the acts done in discharge of official duty but also required for alleged excessive acts done in discharge of purported official duty and / or act done under colour or in excess of discharge of such official duty. Therefore, the Trial Court could not have entertained a private complaint of the respondent No.2 without calling upon respondent No.2 to obtain the required permission

¶189

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under Section 114-A of the Forest Act. Such a procedure would have only forbidden the person/s such as the petitioners from abusing the process of law and if respondent No.2 had tipped off the official superiors against the petitioners, suitable action could have been initiated, if found that the action of the petitioners’ is not in accordance with law. In that view of the matter, the registration of Crime No.138/2018 by the erstwhile respondent No.1 against the petitioners deserves to be quashed. In addition, the respondent No.2 did not comply with the directions of the Hon'ble Apex Court in Priyanka Srivastava's case (supra), and therefore, the registration of Crime No.138/2018 deserves to be quashed.

¶191

Consequently, these petitions are allowed. The first information report drawn against the petitioners’ / accused Nos.3, 4, 8, 6, 7 and 5 in Crime No.138/2018 on the file of the Principal District and Sessions Judge, Shivamogga, for the offence punishable under Section

¶192

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13(c) of the Prevention of Corruption Act, 1988 is

quashed.

Sd/-

JUDGE

PMR- para No.1 sma-para Nos.2 till the end List No.: 1 Sl No.: 0

Sri N B Manjunath v. S.P., Lokayuktha

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Sri N B Manjunath v. S.P., Lokayuktha

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