S JAYAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THOUGH these matters are posted for admission, as notices were issued to the State and the State is represented by the learned Additional State Public Prosecutor, they are taken up for final disposal. Since common question of law and facts arise for consideration and the petitioner is common in all the cases, these petitions are disposed of by a common order.

(2.) THE petitioner is arraigned as accused-3 in CC. Nos. 1071 to 1077 of 1997 on the file of the Judicial Magistrate First Class, Sullia. He is charge sheeted by the jurisdictional police along with other for commission of the offences under Sections 468, 409, 420 read with Section 34 of the Indian Penal Code. After the Court took cognizance of the same, the petitioner moved the Court by an application to discharge him on the ground that prior sanction as required under Section 197 of the Criminal Procedure Code was not obtained by the jurisdictional police, as admittedly the petitioner is a public servant and the offence alleged to have been committed by him along with others is in that capacity and while discharging his duties as a public servant. This application was resisted by the State. Considering the rival contentions, the learned Magistrate by the impugned order dated 20-3-1999 declined to discharge the accused. Hence, these present petitions.

(3.) SRI. Subba Rao, learned senior counsel appearing for the petitioner in all these cases, contended that admittedly the petitioner is a public servant being an Agricultural Officer. It is the allegation of the prosecution that while discharging such duties he has forged certain documents to show that the dam called "vented Dam" was constructed, though, in fact, it was non-existent, and thereby receiving various amounts reserved for that purpose from the Government he has misappropriated the same. It is contended that the petitioner being an Agricultural Officer it was his duty to send a report regarding the construction of the dam by utilising the Government fund reserved for that purpose. As such, as the alleged act of the petitioner is committed while discharging the duties as a public servant, sanction as required under S. 197, Cr. P. C. is mandatory and non-obtaining the same would vitiate the entire proceedings. In this regard, the learned counsel for the petitioner relied upon a decision of the Hon'ble Supreme Court in the case of Amrik Singh v. State of Pepsu, AIR 1955 SC 309 : (1955 Cri LJ 865) to contend that if the act complained of is directly concerned with the official duty so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction under S. 197, Cr. P. C. is necessary. He also relied upon the judgment of the Apex Court in the case of Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan, (1998) 1 SCC 206 : (1998 Cri LJ 1242) and the decision of this Court in the case of K. S. Prabhakar v. M/s. Bhadra Sahakari Sakkare Karkanae Niyamit, ILR 1995 Kant 855 : (1995 Cri LJ 2289) to support his argument. It is nextly contended that by bare reading of the charge sheet it is clear that what is found fault with the action of the petitioner is non-construction of the dam and since construction or non-construction of the same is connected with the official duty and the mandatory requirement under S. 197, Cr. P. C. is not complied with, the proceedings are vitiated. He further contended that the alleged action as is available from the charge sheet itself would show that the action of the petitioner is intricately mixed up with his duty as public servant and then also the requirement of obtaining prior sanction is a must.