- 1 - NC: 2025:KHC-D:475 CRL.P No. 102069 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL PETITION NO. 102069 OF 2023 (482(Cr.PC)/528(BNSS)) BETWEEN: SHRI. HARSHAVARDHAN S/O. MAHADEVAPPA AGSAR AGE. 37 YEARS, OCC. PDO GRAM PANCHAYAT, W/AT INCHARGE PDO GRAM PANCHAYAT KARADIGUDDI, TQ AND DIST BELAGAVI-591103. …PETITIONER (BY SRI. SANTOSH B. MALAGOUDAR, ADVOCATE) AND: 1. THE STATE OF KARNATAKA THROUGH PSI HIREBAGEWADI POLICE STATION, REPTD BY ADDL STATE PUBLIC PROSECUTOR, S.P.P OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH-580011. 2. THE EXECUTIVE OFFICER OFFICE OF THE TALUKA PANCHAYAT, BELAGAVI, TAL. BELAGAVI, DIST. BELAGAVI-591103. …RESPONDENTS (BY SRI. T.HUNUMAREDDY, ADDL. GOVT. ADVOCATE) THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C. SEEKING TO ALLOW THE PRESENT CRIMINAL PETITION. AND TO SET ASIDE THE ORDER DATED 26.05.2018 OF TAKING COGNIZANCE AGAINST THE PRESENT PETITIONER FOR THE OFFENCES PUNISHABLE U/S 406, 408, 409 AND 420 R/W SEC. 34 OF IPC IN CC NO.75/2008 PENDING ON THE FILE OF V ADDL. CIVIL JUDGE AND JMFC BELAGAVI. AND QUASH THE ENTIRE PROCEEDINGS IN CC NO.75/2018 IN RESPECT OF HIREBAGEWADI PS CRIME NO.05/2011 FOR THE OFFENCES PUNISHABLE U/S 406, 408, 409 AND 420 R/W SEC. 34 OF IPC PENDING ON THE FILE OF V ADDL. CIVIL JUDGE AND JMFC BELAGAVI, IN SO FAR AS PETITIONER/ACCUSED NO.1 IS CONCERNED TO MET THE ENDS OF JUSTICE. Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.01.15 11:09:21 +0530 - 2 - NC: 2025:KHC-D:475 CRL.P No. 102069 of 2023 THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR ORAL ORDER 1. The petitioner, who is facing charges for offences punishable under Sections 406, 408, 409, and 420 read with Section 34 of the Indian Penal Code, 1860 (IPC), is before this Court. 2. The case of the prosecution is that the petitioner, while serving as Secretary of the Gram Panchayat, along with other office bearers of the Panchayat, misappropriated government funds amounting to ₹7,55,697/- during the financial years 2007-08, 2008- 09, and 2009-10. Following an investigation, the police filed a charge sheet, which the learned Magistrate accepted and subsequently took cognizance of the alleged offences. 3. Heard the learned counsel for the parties. 4. The core allegation is that the petitioner, as Secretary of the Gram Panchayat, in collaboration with others, misappropriated public funds. Under Section 21 of IPC, the term “Public Servant” includes individuals in the service or pay of a local authority, which covers the petitioner given that the Gram Panchayat operates under the Karnataka Gram Swaraj and - 3 - NC: 2025:KHC-D:475 CRL.P No. 102069 of 2023 Panchayat Raj Act, 1993. Consequently, the petitioner qualifies as a “public servant.” 5. The question of whether cognizance can be taken against a public servant for acts committed during the course of official duties was considered in A. Srinivasulu v. State (represented by the Inspector of Police). The observations in paragraphs 47 to 51 are relevant and binding in this context. “47. Keeping in mind the above principles, if we get back to the facts of the case, it may be seen that the primary charge against A-1 is that with a view to confer an unfair and undue advantage upon A-5, he directed PW 16 to go for limited tenders by dictating the names of four bogus companies, along with the name of the chosen one and eventually awarded the contract to the chosen one. It was admitted by the prosecution that at the relevant point of time, the Works Policy of BHEL marked as Ext. P-11, provided for three types of tenders, namely, (i) Open Tender; (ii) Limited/Restricted Tender; and (iii) Single Tender. 48. Para 4.2.1 of the Works Policy filed as Ext. P-11 and relied upon by the prosecution laid down that as a rule, only works up to Rs 1,00,000 should be awarded by restricted tender. However, Para 4.2.1 also contained a rider which reads as follows: “4.2.1. … However even in cases involving more than Rs 1,00,000 if it is felt necessary to resort to restricted tender due to urgency or any other reasons it would be open to the General Managers or other officers authorised for this purpose to do so after recording reasons therefor.” 49. Two things are clear from the portion of the Works Policy extracted above. One is that a deviation from the rule was permissible. The second is that even General Managers were authorised to take a call, to deviate from the normal rule and resort to restricted tender. - 4 - NC: 2025:KHC-D:475 CRL.P No. 102069 of 2023 50. Admittedly, A-1 was occupying the position of Executive Director, which was above the rank of a General Manager. According to him he had taken a call to go for restricted tender, after discussing with the Chairman and Managing Director. The Chairman and Managing Director, in his evidence as PW 28, denied having had any discussion in this regard. 51. For the purpose of finding out whether A-1 acted or purported to act in the discharge of his official duty, it is enough for us to see whether he could take cover, rightly or wrongly, under any existing policy. Para 4.2.1 of the existing policy extracted above shows that A-1 at least had an arguable case, in defence of the decision he took to go in for restricted tender. Once this is clear, his act, even if alleged to be lacking in bona fides or in pursuance of a conspiracy, would be an act in the discharge of his official duty, making the case come within the parameters of Section 197(1) of the Code. Therefore, the prosecution ought to have obtained previous sanction. The Special Court as well as the High Court did not apply their mind to this aspect.” 6. Therefore, in the instant case, the offence alleged against the petitioner occurred during the discharge of his official duties as a public servant. Section 197 of the Code of Criminal Procedure, 1973 mandates prior sanction before taking cognizance against a public servant. However, no such sanction has been obtained from the government to prosecute the petitioner. In the absence of this necessary sanction, continuation of the criminal proceedings against the petitioner would amount to an abuse of the process of law. - 5 - NC: 2025:KHC-D:475 CRL.P No. 102069 of 2023 7. Accordingly, the petition is allowed. The impugned proceedings in CC No.75/2018 on the file of learned V Addl. Civil Judge and JMFC, Belagavi, insofar it relates to the petitioner/accused No.1 is hereby quashed. Liberty is reserved to the respondents to seek sanction in accordance with law and if such sanction is obtained, the respondent/authority is at liberty to move the learned Magistrate for taking cognizance in accordance with law. Sd/- (HEMANT CHANDANGOUDAR) JUDGE JTR Ct:vh List No.: 1 Sl No.: 78