- 1 - NC: 2025:KHC-D:3534 CRL.P No. 102506 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL PETITION NO. 102506 OF 2023 (482(Cr.PC)/528(BNSS)) BETWEEN: SHRI. P. VIJAYKUMAR S/O. P. HANUMANTU AGE. 50 YEARS, OCC. ASSISTANT EXECUTIVE ENGINEER, R/O. JAYANAGAR, GANGAVATHI, TQ. DIST. KOPPAL-583229. …PETITIONER (BY SRI. SANTOSH B.MALAGOUDAR, ADVOCATE) AND: 1. THE STATE OF KARNATAKA THROUGH PSI KARATAGI POLICE STATION, REPTD. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH-580011. 2. SRI. KRISHNAMURTHI T. TOPANNA AGE. 48 YEARS, OCC. EXECUTIVE OFFICER, R/AT. OFFICE OF THE TALUKA PANCHAYAT, GANGAVATI, TQ. DIST. KOPPAL-583229. …RESPONDENTS (BY SRI. ASHOK T.KATTIMANI, AGA FOR R1; NOTICE TO R2 IS SERVED) THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C. SEEKING TO, ALLOW THE PRESENT CRIMINAL PETITION AND QUASH THE ENTIRE PROCEEDINGS IN CC NO.3095/2022 IN RESPECT OF KARATAGI PS CRIME NO.43/2019 FOR THE OFFENCES P/U/S 406, 409 AND 420 R/W 34 OF IPC PENDING ON THE FILE OF ADDL. CIVIL JUDGE AND JMFC GANGAVATHI, IN SO FAR AS PETITIONERS/ACCUSED NO.3 IS CONCERNED AND SET ASIDE THE ORDER OF TAKING COGNIZANCE DATED 19.10.2022 BY THE COURT OF ADDL. CIVIL JUDGE AND JMFC GANGAVATHI IN CC NO.3095/2022 IN RESPECT OF KARATAGI PS CRIME NO.43/2019 FOR THE OFFENCES P/U/S 406, 409 AND 420 R/W 34 OF IPC AGAINST THE PRESENT PETITIONER/ACCUSED NO.3. Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.02.25 18:00:28 +0530 - 2 - NC: 2025:KHC-D:3534 CRL.P No. 102506 of 2023 THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR ORAL ORDER 1. The petitioner/Accused No.3, who is facing trial for offences punishable under Sections 406, 409, and 420 read with Section 34 of the Indian Penal Code (IPC), has approached this Court seeking relief. 2. The prosecution alleges that during the financial years 2016–2017 and 2017–2018, grants from the 14th Finance Commission were allocated to the Yardona Gram Panchayat for implementing 60 projects. Out of these, 40 projects were to be implemented in the financial year 2016–2017, of which 22 projects were undertaken, four were completed, and no work was carried out on eight projects, causing a loss of Rs. 5,78,314/-. Similarly, for the financial year 2017–2018, 20 projects were undertaken, but without completing them, Accused No.3 falsely recorded in the measurement book that they had been executed. Accused Nos.1 and 2, by misusing their authority, released Rs. 4,60,446/- for works that were never carried out. 3. Heard the learned counsel for the petitioner and the learned Additional Government Advocate for respondent No.1 – State. - 3 - NC: 2025:KHC-D:3534 CRL.P No. 102506 of 2023 4. The core allegation is that the petitioner, as an Executive Engineer, in collaboration with others, misappropriated public funds. Under Section 21 of the IPC, the term “public servant” includes individuals in the service or pay of a local authority. Since the Gram Panchayat operates under the Karnataka Gram Swaraj and Panchayat Raj Act, 1993, 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 of the judgment 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 authorized for this purpose to do so after recording reasons thereof.’ 4.2.2. Two things are clear from the portion of the Works Policy extracted above. One is that a deviation from the rule was permissible. - 4 - NC: 2025:KHC-D:3534 CRL.P No. 102506 of 2023 The second is that even General Managers were authorized to take a call to deviate from the normal rule and resort to restricted tender. 4.2.3. 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 a 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. 4.2.4. For the purpose of determining whether A-1 acted or purported to act in the discharge of his official duty, it is enough to see whether he could take cover, rightly or wrongly, under any existing policy. Para 4.2.1 of the existing policy, as extracted above, shows that A-1 at least had an arguable case in defense of his decision to go for a restricted tender. Once this is clear, his act, even if alleged to be lacking in bona fides or in pursuance of a conspiracy, would still constitute an act in the discharge of his official duty, bringing the case within the parameters of Section 197(1) of the Code. Therefore, the prosecution ought to have obtained prior sanction. The Special Court as well as the High Court failed to apply their minds to this aspect.” 6. In the present 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 of an offence against a public servant. However, no such sanction has been obtained from the government for prosecuting the petitioner. In the absence of this necessary sanction, the continuation of criminal proceedings against the petitioner would amount to an abuse of the process of law. 7. Accordingly, the petition is allowed. The impugned proceedings in CC No.3095/2022, pending before the learned Additional Civil Judge and JMFC, Gangavathi, insofar as they relate to the petitioner/Accused No.3, are hereby quashed. - 5 - NC: 2025:KHC-D:3534 CRL.P No. 102506 of 2023 8. It is needless to state that the respondent is at liberty to proceed in accordance with law. Sd/- (HEMANT CHANDANGOUDAR) JUDGE AC Ct:vh List No.: 2 Sl No.: 2