MR. LAKSHMANKKUMAR H.R. vs THE STATE OF KARNATAKA
- Court
- Karnataka High Court
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
th
DATED THIS THE 16 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.7227 OF 2022
R
C/W
CRIMINAL PETITION No.6111 OF 2022
CRIMINAL PETITION No.6269 OF 2022
CRIMINAL PETITION No.4148 OF 2023
CRIMINAL PETITION No.9551 OF 2023
IN CRIMINAL PETITION No.7227 OF 2022
BETWEEN:
MR.M.INDER KUMAR,
S/O R M KANNAN,
AGED ABOUT 36 YEARS,
NO 34, 'INDERILLAM' 1ST FLOOR,
PIONEER DEFENCE HOUSING COLONY,
ADARSHA NAGAR, R T NAGAR,
BENGALURU 560 032.
... PETITIONER
(BY SRI SANDESH J CHOUTA, SENIOR ADVOCATE FOR
SRI SAMPREETH.V, ADVOCATE)
Digitally signed by
RAKESH S
HARIHAR
Location: High
Court of Karnataka,
Dharwad Bench
2
AND:
1 . THE STATE OF KARNATAKA,
BY SESHADRIPURAM POLICE STATION,
REPRESENTED BY SPP OFFICE,
HIGH COURT OF KARNATAKA,
BANGALORE 560 001.
2. RAVI KUMAR,
POLICE OFFICER,
VIGILANCE & STF BDA
HQ KUMARA PARK WEST,
BENGALURU-560 020.
(AMENDED AS PER ORDER DATED 10.8.2022)
... RESPONDENTS
(BY SRI B.N JAGADEESHA, ADDL. SPP FOR R-1;
SRI MURUGESH V CHARATI, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR IN CR.NO.89/2020 DATED
04.12.2020 AS WELL AS CHARGE SHEET DATED 27.02.2021 IN
C.C.NO.5017/2021, FILED BY THE 1ST RESPONDENT
SESHADRIPURAM POLICE, PENDING ON THE FILE OF IV
ADDL.C.M.M., FOR THE OFFENCE P/U/S 120(B), 406, 409, 417,420,
463, 465, 467, 471 TO 476 R/W 511 PRODUCED AT ANNEXURE-A
AND C RESPECTIVELY.
IN CRIMINAL PETITION No.6111 OF 2022
BETWEEN:
VINOD RAJ C @ VINOD,
S/O CHIKKANARAYANASWAMY,
AGED ABOUT 33 YEARS,
R/A 276, OPP AMBEDKAR COLLEGE,
KENGUNTTE, MALATHALLI,
3
BANGALORE-560 056.
... PETITIONER
(BY SMT. KEERTHANA A BAGALWADI, ADVOCATE)
AND:
1 . THE STATE OF KARNATAKA,
BY SHESHADRIPURAM POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560 009.
2 . MR. RAVIKUMAR,
POLICE INSPECTOR,
VIGILANCE AND STF,
BDA HEAD OFFICE,
5TH MAIN ROAD, KUMARAPARK WEST,
GUTTAHALLI, BENGALURU-560 020.
... RESPONDENTS
(BY SRI B.N JAGADEESHA, ADDL. SPP FOR R-1;
SRI MURUGESH V CHARATI, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE CHARGE SHEET IN
C.C.NO.5017/2021 IN CR.NO.89/2020 FOR THE OFFENCE P/U/S
120B, 406, 409, 417, 420, 463, 465, 467, 471, 472, 473, 474, 475,
476 R/W 511 OF IPC REGISTERED BY SHESHADRIPURAM POLICE
STATION, BENGALURU CITY, PENDING ON THE FILE OF THE
HON'BLE IV ACMM, BANGALORE CITY, BANGALORE AND ALL
CONSEQUENT PROCEEDINGS.
4
IN CRIMINAL PETITION No.6269 OF 2022
BETWEEN:
NAVEEN KUMAR,
SON OF ASHWATHAYYA,
AGED ABOUT 30 YEARS,
R/AT VADAKUNTE VILLAGE,
DODDABELE POST, NELAMANGALA
TALUK, BANGALORE RURAL DISTRICT,
KARNATAKA-562132.
... PETITIONER
(BY SRI ASHWIN N, ADVOCATE)
AND:
1 . THE STATE OF KARNATAKA,
BY SHESHADRIPURAM POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560009.
2 . MR. RAVIKUMAR,
POLICE INSPECTOR,
VIGILANCE AND STF,
BDA HEAD OFFICE,
5TH MAIN ROAD, KUMARAPARK WEST,
GUTTAHALLI, BENGALURU-560 020.
... RESPONDENTS
(BY SRI B.N JAGADEESHA, ADDL. SPP FOR R-1;
SRI AKSHAY GOWDA, ADVOCATE FOR R-2 )
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE CHARGE SHEET IN
5
C.C.NO.5017/2021 IN CR.NO.89/2020 FOR THE OFFENCE P/U/S
120(B), 406, 409, 417, 420, 463, 465, 467, 471, 472, 473, 474,
475, 476 R/W 511 OF IPC REGISTERED BY SESHADRIPURAM
POLICE STATION, BENGALURU CITY, PENDING ON THE FILE OF
HON'BLE IV ADDL.C.M.M., BANGALORE CITY, BANGALORE AND ALL
CONSEQUENT PROCEEDINGS.
IN CRIMINAL PETITION No.4148 OF 2023
BETWEEN:
SRI MOHAN KUMAR,
S/O MALLINATHA GOLA,
AGED ABOUT 34 YEARS,
NO.27, 2ND CROSS,
ADARSHA NAGAR,
R T NAGAR POST,
BENGALURU-560 032.
... PETITIONER
(BY SMT. KEERTHANA A BAGALWADI, ADVOCATE)
AND:
1 . STATE BY SHESHADRIPURAM POLICE,
BENGALURU-560020.
REPRESENTED HEREIN BY SPP,
HIGH COURT OF KARNATAKA,
BENGALURU-560001.
2 . MR. RAVI KUMAR,
POLICE INSPECTOR,
VIGILANCE AND STF,
BDA HEAD OFFICE,
5TH MAIN ROAD,
6
K P WEST GUTTAHALLI,
BENGALURU-560 020
... RESPONDENTS
(BY SRI B.N JAGADEESHA, ADDL. SPP FOR R-1;
SRI SURAJ PATIL, ADVOCATE FOR R-2 )
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE IMPUGNED PROCEEDINGS IN
C.C.NO.5017/2021 ON THE FILE OF IV ADDL.C.M.M., AT
BENGALURU FOR THE ALLEGED OFFENCE REGISTERED BY
SHESHADRIPURAM POLICE STATION, BENGALURU P/U/S 120(B),
406, 409, 417, 420, 463, 465, 467, 471 TO 476 R/W 511 OF IPC
PRODUCED AT DOCUMENT NO.1 BY ALLOWING THIS CRL.P.
IN CRIMINAL PETITION No.9551 OF 2023
BETWEEN:
MR. LAKSHMANKUMAR H.R,
S/O LATE H RANGAYYA,
AGED ABOUT 45 YEARS,
R/A NO 9, 5TH CROSS,
CHAMUNDINAGAR, SUNDARMAHAL ROAD,
GIRINAGAR, 2ND STAGE,
BANASHANKARI 3RD STAGE,
BENGALURU 560 085
... PETITIONER
(BY SMT. KEERTHANA A BAGALWADI, ADVOCATE)
7
AND:
1 . THE STATE OF KARNATAKA,
BY SHESHADRIPURAM PS,
REP. BY THE SPP OFFICE,
HIGH COURT OF KARNATAKA,
BENGALURU 560 001.
2 . RAVIKUMAR,
S/O NOT KNOWN,
AGED ABOUT 46 YEARS,
VIGILANCE AND STF, BDA HEAD
OFFICE, KUMARAPARK WEST,
BENGALURU CITY,
KARNATAKA 560020.
... RESPONDENTS
(BY SRI B.N JAGADEESHA, ADDL. SPP FOR R-1;
SRI MURUGESH V CHARATI, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR IN CR.NO.89/2020 DATED
04.12.2020 AS WELL AS CHARGESHEET DATED 27.02.2021 IN
C.C.NO.5017/2021, FILED BY THE 1ST RESPONDENT
SESHADRIPURAM POLICE AND ALL PROCEEDINGS IN
C.C.NO.5017/2021 PENDING ON THE FILE OF THE IV ADDL.C.M.M
COURT NRUPATUNGA ROAD, BENGALURU CITY FOR THE OFFENCE
P/U/S 120(B), 406, 409, 417, 420, 463, 465, 467, 471, 472, 473,
474, 475, 476 R/W 511 OF IPC, 1860.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-
8
CORAM: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CAV ORDER
Batch of these petitions call in question proceedings in
C.C.No.5017 of 2021 filed by different accused, all of which arising
out of Crime No.89 of 2020 registered for offences punishable
under Sections 120B, 406, 409, 417, 420, 463, 465, 467, 471, 472,
473, 474, 475, 476 r/w 511 of the IPC.
2. Criminal Petition No.7227 of 2022 is preferred by
accused No.2 a movie producer, having production company in the
name and style of Redhan – the Cinema people; Criminal Petition
No.6111 of 2022 is preferred by accused No.21 who said to be a
Bangalore Development Authority (‘BDA’ for short) broker; Criminal
Petition No.6269 of 2022 is preferred by accused No.7, a computer
operator in the BDA – contract basis; Criminal Petition No.9551 of
2023 is preferred by accused No.3, Joint Secretary of the Karnataka
Dalita Kendra and Criminal Petition No.4148 of 2023 is preferred by
accused No.9 alleged to be Computer Operator in Redhan, a private
firm. They are all accused in Crime No.89 of 2020 referred supra .
9
For the sake of convenience, facts as obtaining in Criminal Petition
No.7227 of 2022 which are common in other petitions, would be
narrated.
3. Facts, in brief, germane are as follows: -
nd
The 2 respondent is the complainant who is Officer of the
Vigilance Wing of the Special Task Force of the BDA. It is the case
of the prosecution that the petitioner is a movie producer and on
st
04-12-2020 the 1 respondent/Police is said to have entered the
office of the petitioner and taken away his mobile phone and his
employees and found certain documents belonging to the BDA in
his office. This becomes the fulcrum of the complaint by the officer
nd
of the BDA, the 2 respondent alleging that there is a cartel
operating which may have indulged in forgery of documents of the
BDA, which then becomes a crime in Crime No.89 of 2020. The
allegation in the complaint is that on 01-12-2020 at about 5 p.m. a
stranger appeared before the Commissioner, BDA with a pen drive
and informs him that some BDA officials have joined hands with the
petitioner/accused No.2 and are carrying allotment letters with
official seals of the BDA to the private office of the petitioner at
10
Cunningham Road, Bengaluru. The further allegation is that in the
said office, the officials of the BDA are creating allotment letters of
sites pertaining to HBR and HRBR layouts, as if the BDA has allotted
them sites, allegedly collecting lakhs of rupees. On receipt of the
pen drive, it appears the Commissioner, BDA, has entrusted the
complaint to the Vigilance Department of the BDA and after
verifying the file, moves from place to place and draws up several
persons as accused including the officials of the BDA. Pursuant to
registration of crime, the Police commence investigation and file a
charge sheet against almost all the accused, dropping only a few.
Filing of the charge sheet led all the officials to approach this Court
in several petitions and this Court quashed proceedings against
those officials as cognizance had been taken without sanction at the
hands of the Competent Authority. Liberty was reserved to the
concerned Court to continue the proceedings in the event of
sanction. Even as on date, there is no sanction taken for
prosecution of the officials against whom proceedings were
quashed. The present petitioners, except one, are not officials of
the BDA; they are private parties calling in question proceedings in
C.C.No.5017 of 2021.
11
4. Heard Sri Sandesh J Chouta, learned senior counsel
appearing for petitioner in Crl.P.No.7227 of 2022; Smt Keerthana A
Bagalwadi, learned counsel appearing for petitioners in
Crl.P.Nos.6111 of 2022, 4148 of 2023 and 9551 of 2023;
Sri Ashwin N, learned counsel appearing for petitioner in
Crl.P.No.6269 of 2022; Sri B N Jagadeesha, learned Additional
State Public Prosecutor appearing for respondent No.1 in all the
petitions and Sri Murugesh V Charati, learned counsel appearing
for respondent No.2 in Crl.P.Nos.7227 of 2022, 6111 of 2022 and
9551 of 2023, Sri Akshay Gowda, learned counsel appearing for
respondent No.2 in Crl.P.No.6269 of 2022 and Sri Suraj Patil,
learned counsel appearing for respondent No.2 in Crl.P.No.4148 of
2023.
5. The learned senior counsel, Sri Sandesh J. Chouta
appearing for the petitioners would contend that initially 5 persons
were drawn as accused. The allegation was that these 5 accused
had hatched a conspiracy and had fabricated certain documents
which were intended to be used illegally to make wrongful gains for
themselves. But, no wrongful gain was made. The police conduct
12
investigation and file a charge sheet against 25 accused. The crux
of the allegation is that the accused have indulged in falsification of
allotment letters, site documents etc. The learned senior counsel
submits that unless the allegation is that the petitioners/accused
have put some illegal documents into use, they cannot be alleged of
committing forgery, extortion or any other offence for that matter.
It is an admitted fact that the petitioners in the case at hand had
allegedly got the documents prepared but never used them. He
would take this Court to specific allegations against each of the
accused to demonstrate that the petitioners cannot be alleged of
any offence as there is nothing against each of them.
5.1. The learned senior counsel submits that there are no
fabricated or forged documents recovered. In the complaint or the
charge sheet, there is no document mentioned of particular forgery.
There is no witness statement taken in the entire investigation with
regard to any property. The allotment letters that were seized were
all genuine. Therefore, nothing was sent to the Forensic Science
Laboratory to determine forgery. The allotment letters were never
dispatched to any of the allottees. There are no sale deeds
13
executed pursuant to the alleged allotment letters. The land still
belongs to the BDA. There is no victim’s complaint in the case at
hand. The proceedings against all the officials have been quashed.
Though liberty was granted, the BDA has not granted sanction even
to this day. The allotment letter that was seized was not prepared
by the petitioners on the basis of the resolution of the Board dated
26-02-2019. This resolution till today remains intact. Therefore,
none of the allegations are even tenable against the petitioners and
would seek quashment of proceedings qua all the accused.
6. Per contra , Sri Murugesh V Charati, Sri Akshay Gowda
nd
and Sri Suraj Patil, learned counsels appearing for the 2
respondent-BDA would vehemently contend that all these
contentions are a matter of trial. They are shrouded in disputed
questions of fact. He would admit that no crime was committed, but
things were kept ready to be executed. The conspiracy had been
hatched and it was pending execution. He would further admit that
crime had involved several BDA officials and against BDA officials
this Court had quashed the proceedings. But, sanction to those BDA
officials has not been granted. He would submit for an offence to be
14
tried it need not be that the offence has to be committed.
Conspiracy operates without even execution. Therefore, if not the
crime registered and search conducted, the BDA might have been
put into terrible loss. He would submit that matters of trial need not
be interfered at the hands of this Court.
7. The afore-narrated facts are a matter of record. Since
the crime is common and the charge sheet is common in all these
cases as they are preferred by different accused, I deem it
appropriate to notice the complaint and the charge sheet. The
complaint reads as follows:
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#ಷಯ ಸಂEೆ4 _ಾಂಕ ರ eನ [ೕ$ಾ(ನದಂQೆ aೆk R ಆ ಮತು-
. . . . , . ,
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, . . -3
$ಾ9ರುವಂQೆ ಹಂK&ೆ ಪತ ಗಳನುA Cದ>ಪ9C R 9 ಎ ಕTೇ ಯ ಉಪ&ಾಯ(ದp( ರವರ Cೕಲು
.
ಮತು- ಸWಗಳನುA aಾGರುವ ದು ಕಂಡುಬಂ ರುತ-=ೆ
|
, . 118219, 118220 , -3
ಉZದಂQೆ Eಾ MಾN3ೕನ ಪತ ಸಂEೆ4 ಗಳ; ಉಪ&ಾಯ(ದp( ರವರ
,
Cೕಲುಗಳ; ೆಂಗಳ ರು ಅ1ವೃ 2 ಾ3&ಾರದ ಉತ-ರ #fಾಗದ &ಾಯ( ಾಲಕ ಅ1ಯಂತರರು
. . , ,
R 9 ಎ )OೇಶನಗZ ೆ )ೕ9ರುವ ಖKತ ಅಳQೆ ವರ ಗಳ; ದ ತ ಕ7ಾ4ಣ &ೇಂದ ಅ_ಾಥ ಮಕ\ಳ
, . .
ಅ1ವೃ 2 ಸಂMೆsಯ ಸದಸ4ರುಗZ ೆ ಹಂK&ೆ $ಾಡ ೇ&ಾFರುವ ಫ7ಾನುಭ#ಗಳ ಪg R &ೆ ಪ#ತ
,
ಎಂ ಾ&ೆಯ aೆಸ ೆ ಇಂದ ಕು$ಾ ಅ&ೌಂ€)ಂದ ಹಣ ವ ಾ(ವೆ $ಾಡುವ ಬ ೆc =ಾಖ7ೆಗಳ;
2,00,000/- .
ರೂಗಳ uೆ• ಪ [ ಇರುವ ದು ಕಂಡುಬಂ ರುತ-=ೆ
.02,
ಸದ ಹಂK&ೆ ಪತ ಗಳe ನಮೂ Cರುವ ಾ3&ಾರದ ಸfೆಯ #ಷಯ ಸಂEೆ4
:26-02-2019 ,
_ಾಂಕ ೆ ಸಂಬಂ3Cದ ಠ5ಾವ ಪ [ಯನುA ಪ+ೆದು _ೋಡ7ಾF ಅದರ e ಬನಶಂಕ
3 , .89, 90, 91 & 94 541
_ೇ ಹಂತ aೊಸ&ೆ5ೆಹZ< ಾಮದ ಸOೆ( ನಂ ರ e Oಾಸ $ಾಡು[-ದ> ಗು9ಸಲು
, 418
)OಾCಗಳನುA ಾ3&ಾರವ ಒಕ\7ೆRhCರುವ ದಂದ ಅವರುಗಳ ೈG ಈಾಗ7ೇ ಜನ ೆ
, 123
)OೇಶನಗಳನುA ಹಂK&ೆ $ಾಡ7ಾFದು> ಉZದ ಮಂ ೆ ಾ3&ಾರದ ಇತ5ೆ ಬ+ಾವ ೆಗಳe
6'x9
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.
ಹಂK&ೆ $ಾಡಲು ಮತು- ಈ ಬ ೆc ಸ&ಾ(ರ&ೆ\ ವರ ಸ eಸಲು [ೕ$ಾ()ಸ7ಾFರುತ-=ೆ
17
ಆದ5ೆ ಾ3&ಾರದ )ಯ$ಾನುMಾರ dೕ7ಾ3&ಾ ಗಳ ಆ=ೇಶ ಪ+ೆದು )OೇಶನಗಳನುA
-3
ಹಂK&ೆ $ಾಡ=ೇ dೕಲ\ಂಡಂQೆ ಾ3&ಾರದ ಉಪ&ಾಯ(ದp( ರವರ #fಾಗದ e
-3 ,
ಉಪ&ಾಯ(ದp( ಆF ಕತ(ವ4 )ವ(Wಸು[-ರುವ p ೕ pOೇ ೌಡ dೕ Nuಾರಕ5ಾದ p ೕಮ[
, . .
ಕಮಲಮv #ಷಯ )Oಾ(ಹಕ5ಾದ p ೕ ಸಂಪw ಮತು- g 9 ಆ #fಾಗದ e #ಷಯ
||
)Oಾ(ಹGtಾFರುವ ಕು ಪ#ತ ಎಂಬುವರು ಅಕ ಮ 7ಾಭ $ಾ9&ೊಳ;<ವ ದುರು=ೆ>ೕಶ ಂದ EಾಸF
,
ವ4G-tಾದ ಇಂದ ಕು$ಾ ಎಂ ಾತ_ೊಂೆ ಾIೕ7ಾF ಅಕ ಮಕೂಟ ರKC&ೊಂಡು ತಮv
,
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, ,
dೕಲ\ಂಡಂQೆ ನಮೂ Cರುವ ಾ3&ಾರದ ಹಂK&ೆ ಪತ ಗಳ; MಾN3ೕನ ಪತ ಗಳ; )Oೇಶನಗಳ ಖKತ
. . . .
ಅಳQೆ ವರ ಗಳ; ಮತು- R 9 ಎ ಕTೇ CೕಲುಗಳನುA ಅಕ ಮOಾF R 9 ಎ ಕTೇ ’ಂದ aೊರಗ+ೆ
, . .
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)OೇಶನಗಳನುA &ಾನೂನು ಾWರOಾF ಹಂK&ೆ $ಾಡುವ ಮೂಲಕ &ೋXಾ4ಂತರ ರೂ ೆ7ೆ ಾಳ;ವ
. . ,
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/
$ಾಡು[-ರುವ ದು ಮತು- ಈ ಕೃತ4ದ e ಾ3&ಾರದ dೕಲ\ಂಡ ಅ3&ಾ Cಬhಂ ಗHೆ ಂೆ ಇಂದ
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. .
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, , . .
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.
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,
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, ,
)Oೇಶನಗಳ ಖKತ ಅಳQೆ ವರ ಗಳ; ದ ತ ಕ7ಾ4ಣ &ೇಂದ ಅ_ಾಥ ಮಕ\ಳ ಅ1ವೃ 2 ಸಂMೆsಯ
, . .
ಸದಸ4ರುಗZ ೆ ಹಂK&ೆ $ಾಡ ೇ&ಾFರುವ ಫ7ಾನುಭ#ಗಳ ಪg ಇತ5ೆ =ಾಖ7ೆಗಳ; aಾಗೂ R 9 ಎ
. .
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ಹಂK&ೆ ಪತ ಗಳನುA Cದ2ಪ9ಸು[-ರುವ ದನುA 5ೆ&ಾ•( $ಾ9ರುವ #9Bೕ ತುಣುಕುಗZರುವ ೆ
.
+ೆo‚ ಅನುA ಅಡಕ ೊZC=ೆ
ತಮv # ಾNC
ಸW/-“
18
The Police conduct investigation and file a charge sheet. The
summary of the charge sheet against each of the persons is as
follows:
19
ಅಲe=ೇ ಎ-9 ರವರ ಕ+ೆ’ಂದ ಇವರ ಕTೇ ಯe ಅ_ೌಪuಾಕ gಪ™šಗಳನುA
Xೈ~ $ಾ9ಸುವದು ಮತು- ಹಂK&ೆ ಪತಗಳನುA ಕಲ .ೆ5ಾ• Qೆೆಯುವದು
20
aೋ &ೆ tಾಗುವಂQೆ ಒಳಸಂಚನುA ರೂ•CರುQಾ-5ೆ. ಅಲe=ೇ ಆMಾIಗಳ; ಸೃ›C
ದೃಢಪgರುತ-=ೆ
.
21
. !" . .90/2020 #$ %&
.
-7
! '()
, - ./ 0( 1
2 .3 4( 5 ! '6 #$ * 789+
2 . / (9+ .: * ;8 ;<,
= . ! -2 & ! -3 / 0(
* +
26
> 0? @ A(: , 5 ! *B C( D EF G 0,H :
I -
22
ಎ-2 ಇಂದ ರವರ ಕTೇಯe ಅ_ೌಪuಾಕ gಪ™šಗಳನುA ಮತು-
ಹಂK&ೆ ಪತಗಳನುA ಕಲ .ೆ5ಾ• •ಂ€ Qೆೆರುವದು ಮತು- ಹಂK&ೆ
ಪತಗಳ ನಮೂ_ೆಯe Xೈ~ $ಾಡುವದು ಅಲe=ೇ ಸದಯವರು
=ಾಖ7ಾ[ಗಳನುA ಾೆಯ •.ಎŒ. ನಂ.94/2020 ರe
ಅ$ಾನತುಪ9Cರುತ-=ೆ. ಮತು- ಇವರು ಎ-2 ರವರ ಕTೇಯe
ಉಪBೕFC=ೆ C•ಯು ಅನುA ಅ$ಾನತು-ಪ9C ಾಾ •.ಎŒ.
ನಂ.88/2020 ರe ನಮೂCರುತ-=ೆ. ಈ ೕ[tಾF ಅ5ೋ•ಯು
ಎಸFರುವ ಅಪ5ಾಧವ ದೃಢಪgರುತ-=ೆ.
23
144/C, 7) )Oೇಶನ ಸಂEೆ4 &ೆ.aೆk-144/9. 8) )Oೇಶನ ಸಂEೆ4 &ೆ.aೆk-145 9)
)Oೇಶನ ಸಂEೆ4 &ೆ.aೆk--145/ಎ 10) )Oೇಶನ ಸಂEೆ4 &ೆ.aೆk-145/R, 11)
)Oೇಶನ ಸಂEೆ4 &ೆ.aೆk-145/C &ಾಚರಕನಹZ< ಾಮದ ಸOೇ( (ನಂ.145 & 146
ರ eನ 12) )Oೇಶನ ಸಂEೆ4 &ೆ.aೆk-146, 13) )Oೇಶನ ಸಂEೆ4 &ೆ.aೆk-146/ಎ
ಮತು- 14) )Oೇಶನ ಸಂEೆ4 &ೆ.aೆk-146/R ಇವ ಗZೆ Cೕಲು aಾG ಸW $ಾ9 ಎ-
18 ಜ5ಾ ಮುEಾಂತರ ಎ-2 ಆ5ೋ•ೆ &ೊgರುQಾ-5ೆ.
. ,
ಅಸ™ಷ OಾFರುತ-=ೆ ಉZದಂQೆ ಖKತ ಅಳQೆ ವರ ಪ ಸ-ಕ ಮೂ‚dಂ€ †ಸ
ಗಳನುA ಪಂಚರ ಸಮrಮ &ೇಳ7ಾF ಈ =ಾಖ7ಾ[ಗಳ; tಾವ ದೂ ಲಭ4#ಲeOೆಂದು
.
[ZCರುQಾ-5ೆ
24
2 . 932/1 & 2 -932/2
ಉZದ )OೇಶನಗHಾದ aೆk C aೆkC ಇವ ಗZೆ
,
ಸಂಬಂ3Cದ =ಾಖ7ಾ[ಗಳನA ಪಂಚರ ಸಮrಮ &ೇಳ7ಾF tಾವ =ೇ
.
=ಾಖ7ಾ[ಗಳ; ಕTೇ ಯe ಲಭ4#ಲeOೆಂದು [ZCರುQಾ-5ೆ ನಂತರ ಲಭ4#ದ>
=ಾಖ7ೆಗಳನುA ಪಂಚರ ಸಮrಮ ಮಹಜ ಮುEಾಂತರ ಅ$ಾನತು-ಪ9C ಾಾ
•.ಎŒ. ನಂ.09/2021 ರe ನಮೂCರುತ-=ೆ. ಈ ೕ[tಾF ಅಕಮ ಸಂಾದ_ೆಾF
ಆ5ೋ•ಗಳ; $ಾ9ರುವ ಕೃತ4ವ ತ)Eೆ’ಂದ ದೃಢಪgರುತ-=ೆ.
. . . . , .237M 115/1,
ಓ ಎಂ R ಆ 7ೇಔ€ ಸOೇ( ನಂ ರ eನ )Oೇಶನ ಸಂEೆ4
204. , 3 , 1
&ಾಚರಕನಹZ< ಾಮದ ಸOೇ( ನ0. aೆk R .ಆ 7ೇಔ€ _ೇ ಾe• _ೇ ಹಂತ
149 .41. . . .
ದ eನ )Oೇಶನ ಸಂEೆ4 aಾಗೂ aೆಣೂ…ರು ಾಮದ ಸOೇ( ನಂ aೆk R ಆ
, 4 , 1 1305/ 2
ಬ+ಾವ ೆ _ೇ ಾe• _ೇ ಹಂತ ದ eನ )Oೇಶನ ಸಂEೆ4 † ಇವ ಗZೆ
/ . .
ಸಂಬಂ3Cದ ಖKತ ಅಳQೆ ವರ C9 ಗZ ೆ ಸW $ಾ9&ೊg ರುQಾ-5ೆ
25
ಮತು- ಓವ dಷdಂ€ Mೈ€ಗಳನುA ಸಹ $ಾ5ಾಟ $ಾ9Cರುವದು. aಾಗೂ
&ೆಂೇಯeನ )Oೇಶನ ಸಂEೆ4 675/ ಅನುA ಎ-23 ಆ5ೋ•ೆ _ಾಗರfಾ# 2_ೇ ಹಂತ,
5_ೇ ಾe•ನeನ )OೇಶನA ಸಂEೆ4 359 ಅನುA ಎ-24 ಆ5ೋ•ೆ ಅಕಮ ಸಂಾದ_ೆಾF
$ಾ5ಾಟ $ಾ9Cರುವದು ತ)Eೆ’ಂದ ದೃಢಪgರುತ-=ೆ.
ಎ-22 _ೋi• ಸದ ಆ5ೋ•ಯು R9ಎ Xೋಕ ಆFದು>, ಎ-7. ನ#ೕ ಕು$ಾ, ಎ-18 ಜ5ಾ,
22
ಎ-20 «ೕಹ 5ಾ¬, @ C9 «ೕಹ ಎ-21 #_ೋŠ & ಎ-19 ಜaಾಂFೕ
ರವರುಗಳ; ಈ ಪಕರಣದe R9C ಅ3&ಾಗಳ .ೊQೆ ಾIೕ7ಾF
26
Sd/-
Police Inspector
Seshadripuram Police Station
Bengaluru City-560 020”
8. Before considering the role of these petitioners and
whether proceedings should be continued or not, I deem it
appropriate to notice orders on several other persons; they are four
in number. All of them were accused Nos. 1 and 10 to 17 and are
officials of the BDA. The observations made by this Court in
27
Crl.P.No.8854 of 2021 & connected cases insofar as accused
Nos.11, 13 to 16, reads as follows:
“…. …. ….
11. The afore-narrated facts being not in dispute, are not
reiterated. The issue that fall for consideration is, whether
further proceedings could go on against the petitioners, who are
admittedly Officers of the BDA, who are alleged of preparation
of draft CDRs’ on which the aforesaid offences are levelled
against the petitioners?
12. Section 197 of Cr.P.C. reads as follows:
“197. Prosecution of Judges and public
servants:
(1) When any person who is or was a Judge
or Magistrate or a public servant not removable
from his office save by or with the sanction of the
Government is accused of any offence alleged to
have been committed by him while acting or
purporting to act in the discharge of his official
duty, no Court shall take cognizance of such
offence except with the previous sanction-
(a) in the case of a person who is employed
or, as the case may be, was at the time of
commission of the alleged offence employed, in
connection with the affairs of the Union, of the
Central Government;
(b) in the case of a person who is employed
or, as the case may be, was at the time of
commission of the alleged offence employed, in
connection with the affairs of a State, of the State
Government: 1 Provided that where the alleged
offence was committed by a person referred to in
clause (b) during the period while a Proclamation
issued under clause (1) of article 356 of the
Constitution was in force in a State, clause (b) will
apply as if for the expression" State Government"
occurring therein, the expression" Central
Government" were substituted.
28
(2) No Court shall take cognizance of any offence
alleged to have been committed by any member of the
Armed Forces of the Union while acting or purporting to
act in the discharge of his official duty, except with the
previous sanction of the Central Government.
(3) The State Government may, by notification,
direct that the provisions of sub- section (2) shall apply
to such class or category of the members of the Forces
charged with the maintenance of public order as may be
specified therein, wherever they may be serving, and
thereupon the provisions of that sub- section will apply
as if for the expression" Central Government" occurring
therein, the expression" State Government" were
substituted.
(3A) 1 Notwithstanding anything contained in
sub- section (3), no court shall take cognizance of any
offence, alleged to have been committed by any
member of the Forces charged with the maintenance of
public order in a State while acting or purporting to act
in the discharge of his official duty during the period
while a Proclamation issued under clause (1) of article
356 of the Constitution was in force therein, except with
the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary
contained in this Code or any other law, it is hereby
declared that any sanction accorded by the State
Government or any cognizance taken by a court upon
such sanction, during the period commencing on the
20th day of August, 1991 and ending with the date
immediately preceding the date on which the Code of
Criminal Procedure (Amendment) Act, 1991 , receives
the assent of the President, with respect to an offence
alleged to have been committed during the period while
a Proclamation issued under clause (1) of article 356 of
the Constitution was in force in the State, shall be
invalid and it shall be competent for the Central
Government in such matter to accord sanction and for
the court to take cognizance thereon.]
(4) The Central Government or the State
Government, as the case may be, may determine the
person by whom, the manner in which, and the offence
or offences for which, the prosecution of such Judge,
29
Magis-trate or public servant is to be conducted, and
may specify the Court before which the trial is to be
held.”
(Emphasis supplied)
In the light of the afore-extracted provision, a sanction
for prosecution for the offences that are made punishable under
the provisions of Indian Penal Code, 1860, is imperative, under
Section 197 of the Cr.P.C. The Apex Court in the case of
INDIRA DEVI (supra), has held as follows:
“2. Megharam is alleged to have tampered
with and fabricated the agreement with the intention to
defraud. This was allegedly done in collusion with
the then executive officer of the Municipality, one
Surender Kumar Mathur and “the concerned
clerk and others”, by enlarging the dimensions of the
plot which have been sold to him with the intention to
grab the land and house occupied by the complainant
and her husband. The Khasra number is also alleged to
have been changed from 1179/03 to 1143/04. This fact
is stated to have come to the notice of the complainant
only when they were served with a court notice when
they were in physical possession of the plot with the
house and the shop. Her husband is stated to
have gone to Jaipur for treatment of cancer.
The accused persons are, thus, alleged to have
committed the offences of fraudulently making a
scheduled caste women, her cancer diagnosed
husband and other family members homeless.
It may be noted that Respondent No.2 herein,
Yogesh Acharya was not named in the FIR
but, apparently, he is stated to be “the concerned clerk”.
3. In pursuance of the investigation, a charge
sheet was filed and charges were framed vide order
dated 10.04.2012 against Megharam. Once again
Respondent No.2 was not named in the charge
sheet but a reference was made to Megharam
acting in collusion with “co-accused persons”.
4. The records placed before us do not reflect
how Respondent No.2 was exactly roped in, but suffice
to say, Respondent No.2 moved an application under
Section 197 of the CrPC before the trial court stating
that he was a public servant and what he did in
30
respect of allotment of lease, that was executed
in favour of Megharam, was done during the course of
his official duty and thus he was entitled to
protection under the aforementioned provision. He
also sought to assail the charge sheet as the same had
been filed without obtaining sanction of the
competent authority under Section197 of the CrPC.
5. The trial court dismissed the application vide
order dated 10.08.2017, while noticing that
Respondent No.2 had not been mentioned in the FIR. It
was opined that it was the duty of Respondent No.2 to
bring irregularities to the knowledge of the competent
officers, i.e. Megharam had mentioned the wrong
Khasra number in the lease but no documents
of ownership of the land were produced. The
trial court was of the view that had the
discrepancies been brought to the knowledge of the
competent officers by Respondent No.2, the disputed
lease would not have been issued. The result of the
failure to do so caused the forged lease to be prepared.
Respondent No.2 had also drafted the disputed lease
in which he failed to mention necessary details. It was,
thus, opined that Respondent No.2 was liable to be
prosecuted against for having committed criminal
offence to procure a forged lease. What
Respondent No.2 did was held not to be done by the
public servant in discharge of his official duty
and thus protection under Section 197 of the CrPC
would not come to his aid.
6. Respondent No.2 thereafter filed a Crl.
Misc. Petition No.3138/2017 under Section 482 of the
CrPC before the High Court of Judicature at Jodhpur
assailing the said order of the trial court. The High
Court, vide impugned order dated 03.10.2017, allowed
the petition. It was opined that the case was similar to
the one of Devi Dan v. State of Rajasthan (2014 SCC
Online Raj 4584). The High Court had opined therein
that sanction under Section 197 of the CrPC was
required before triggering any prosecution against
the Station House Officer for filing/failing to file an
FIR and for other criminal acts committed during the
discharge of his duties. The complainant, aggrieved by
the said judgment, has approached this court by filing a
special leave petition. The State has also filed an SLP.
Leave was granted in both the matters.
31
7. The appellant contended before us that the
involvement of Respondent No.2 only came to light
during investigation. He had failed to bring
the irregularities to the knowledge of his
superiors which was instrumental in issuing the
forged lease. Thus, he had conspired with his
superiors in dishonestly concealing the forgery, and
intentionally omitting mentioning the date of the
proceedings on the order sheet. Such action of
forging documents would not be considered as an act
conducted in the course of his official duties and, thus
Section 197 of the CrPC would not give protection to
Respondent No.2.
8. On the other hand, Respondent No.2
endeavoured to support the impugned judgment
of the High Court by emphasising that in FIR
only Megharam along with some unnamed officials
were mentioned. Surender Kumar Mathur, the
Executive Officer of the Nagar Palika, had filed a petition
under Section 482 of the CrPC relating to the same
transaction and the High Court had granted him
protection under Section 197 of the CrPC vide order
dated 22.02.2018. The conduct of putting his initials
was held to be an act done in discharge of his
duties. Similarly, Sandeep Mathur, a Junior
Engineer, who was part of the same transaction, was
granted protection by the Sessions Court vide order
dated 19.03.2020, once again under the same provision,
i.e., Section 197 of the CrPC. Both the
orders remained unchallenged by the complainant and
the State. Further, it has been argued that Respondent
No.2 was simply carrying out his official duty
which is apparent from the work allotted to
him that pertained to allotment, regularisation,
conversion of agricultural land and all kinds of work
relating to land and conversion. The application of
Megharam was routed through the office, and the
proceedings show that the file was initially put up before
the Executive Officer, who directed inspection,
which was carried out by the Junior Engineer.
Thereafter, file was placed before the Executive
Officer again and only then was it signed by the
Municipal Commissioner. The two key people involved
in the process had already been granted protection and
32
thus Respondent No.2 herein, who was merely a Lower
Division Clerk, could not be denied similar protection.
9. The learned counsel for the respondent
relied upon the judgments of this Court in B.
Saha & Ors. Vs. M.S. Kochar reported in (1979) 4 SCC
177 and State of Maharashtra Vs. Dr.Budhikota
Subbarao (1993) 3 SCC 339, to contend that Section
197 of the CrPC ought to be read in a liberal sense
for grant of protection to the public servant
with respect to actions, which though constitute
an offence, are “directly and reasonably”
connected with their official duties.
10. We have given our thought to the
submissions of learned counsel for the parties.
Section 197 of the CrPC seeks to protect
an officer from unnecessary harassment, who
is accused of an offence committed while
acting or purporting to act in the discharge of his
official duties and, thus, prohibits the court from
taking cognisance of such offence except with the
previous sanction of the competent
authority. Public servants have been treated
as a special category in order to protect
them from malicious or vexatious prosecution.
At the same time, the shield cannot protect
corrupt officers and the provisions must be
construed in such a manner as to advance
the cause of honesty, justice and good
governance. [See Subramanian Swamy Vs.
Manmohan Singh4]. The alleged indulgence of the
officers in cheating, fabrication of records or
misappropriation cannot be said to be in discharge
of their official duty. However, such sanction is
necessary if the offence alleged against the public
servant is committed by him “while acting or
purporting to act in the discharge of his official
duty” and in order to find out whether the
alleged offence is committed “while acting
or purporting to act in the discharge of his
official duty”, the yardstick to be followed is to
form a prima facie view whether the act of
omission for which the accused was charged had a
reasonable connection with the discharge of his
duties. [See State of Maharashtra Vs. Dr.
Budhikota Subbarao reported in (1993) 3 SCC 339.
33
The real question, therefore, is whether the act
committed is directly concerned with the official
duty.
11. We have to apply the aforesaid test to
the facts of the present case. In that behalf, the
factum of Respondent No.2 not being named in the
FIR is not of much significance as the alleged role
came to light later on. However, what is of
significance is the role assigned to him in the
alleged infraction, i.e. conspiring with his
superiors. What emerges there from is that
insofar as the processing of the papers was
concerned, Surendra Kumar Mathur, the
Executive Officer, had put his initials to the
relevant papers which was held in discharge of his
official duties. Not only that, Sandeep Mathur, who
was part of the alleged transaction, was also
similarly granted protection. The work which was
assigned to Respondent No.2 pertained to the
subject matter of allotment, regularisation,
conversion of agricultural land and fell within his
domain of work. In the processing of application of
Megharam, the file was initially put up to the
Executive Officer who directed the inspection and
the inspection was carried out by the
Junior Engineer and only thereafter the
Municipal Commissioner signed the file. The
result is that the superior officers, who have
dealt with the file, have been granted protection
while the clerk, who did the paper work, i.e.
Respondent No.2, has been denied similar
protection by the trial court even though the
allegation is of really conspiring with his
superior officers. Neither the State nor the
complainant appealed against the protection
granted under Section 197 of the CrPC qua these
two other officers.
12. We are, thus, not able to appreciate why
a similar protection ought not to be granted to
Respondent No.2 as was done in the case of the
other two officials by the Trial Court and
High Court respectively. The sanction from
competent authority would be required to take
cognisance and no sanction had been obtained in
respect of any of the officers. It is in view thereof
34
that in respect of the other two officers, the
proceedings were quashed and that is what the
High Court has directed in the present case as
well.
13. In view of the aforesaid, the appeals are
dismissed leaving the parties to bear their own costs.”
(Emphasis supplied)
In the light of the afore-extracted judgment, which
delineates the law of according sanction, even for the offence
punishable under the Indian Penal Code, 1860 and admittedly,
in the case at hand, sanction not being accorded, further
proceedings against the petitioners cannot be permitted to
continue.
13. Learned counsel for respondent No.2 would admit
that though the communication is sent on 02.03.2021, the
sanction is yet to be accorded by the competent authority.
Therefore, the further proceedings on the merit of the matter, at
this juncture, in the peculiar circumstances would not be
warranted. Further proceedings against the petitioners will have
to be continued only after the sanction is accorded by the
competent authority and such sanction is placed before the
Court, before whom the proceedings are pending consideration.
14. It is needless to observe that the competent authority
while granting sanction would have to look into the documents
that are necessary to be looked into and also the submissions
made by the learned counsel for the petitioners that there was
no witness, who has stated about the role of the petitioners in
the entire episode of the alleged crime, against the petitioners.
15. For the purpose of want of sanction, further
proceedings against these petitioners would stand obliterated.
16. For the aforesaid reasons, the following:
ORDER
(i) The criminal petitions are allowed in-part.
35
(ii) The order taking cognizance without sanction being
accorded for prosecution against the petitioners,
stands quashed.
(iii) The matters are remitted back to the competent
authority for passing appropriate orders with
regard to grant of sanction or otherwise, for
prosecution of the petitioners.”
The quashment of the case against those accused have become
final. This Court while quashing the proceedings against the
officials of the BDA had clearly indicated that further proceedings
before the concerned Court will take place only after receipt of the
sanction from the hands of the Competent Authority and was being
placed before the Court. Even to-date no order granting sanction to
prosecute the officials of the BDA is placed before me and the
submission is that it is not placed before the concerned Court also.
Therefore, quashment of proceedings against BDA officials i.e.,
accused Nos. 1 and 10 to 17 as indicated hereinabove has become
final.
9. The issue now would be, whether the offences alleged
against these petitioners should be permitted to be continued in the
teeth of narrated facts and allegations. Common allegations
against the petitioners/private parties are as follows:
36
•
"That the Hon’ble High Court in W.P.No.8001 of 1992 and
3337 of 1992 had directed for rehabilitation/relocation of 541
people who are living in the slums located in Sy.No.89, 90,
rd
91, 94 and 98 of Hosakerehalli Grama, BSK 3 Stage.
•
That as per the above order, in the first phase – 238 sites, in
the second phase – 180 sites have been allotted.
•
That subsequently, as regards the remaining 123 persons/
sites, the Dalithara Kalyana Kendra, Karnataka
Anathamakkala Abhivruddhi Samste, Girinagara, Hoskerehalli
rd
BSK 3 Stage, Bengaluru, tendered a requisition seeking such
allotment.
•
That, accordingly, after identification of sites and persons,
and intimation to Government, it was decided that the
allocation of these 123 sites is to be carried out in HBR/HRBR
Layout.
•
That despite there being no order either from the Government
or by the BDA, the A1 to A4 accused conspired together to
illegally make money and identified 123 fake people from
whom they got Mahazars done seeking allotment, and
thereafter issued fake allotment letter, note sheets, etc.”
Particularly against accused Nos. 2, 3, 7 and 21 are of conspiracy.
The offences, therefore, that have sprung in the charge sheet
against these petitioners are under Sections 406, 409, 417, 420,
463, 465, 467, 471, 472, 473, 474, 475, 476 r/w 511 IPC. They are
principally cheating and forgery. The admitted facts need be
reiterated that there is not a single victim in the case at hand. No
document that is alleged to be forged has been put into execution.
37
For the purpose of ascertaining forgery, the document is not even
sent to the Forensic Science Laboratory. For conspiracy, the
officials of the BDA were also allegedly involved in the conspiracy
but are left off. No sanction is granted to prosecute those public
servants. Now, insofar as the present offences are concerned, they
are not even met even to its semblance. Let me now consider
allegation wise.
10. The offence of cheating and criminal breach of trust as
obtaining under Sections 406 and 420 of the IPC are alleged. It is
by now too well settled a principle of law that the two cannot go
hand in hand.
10.1. The Apex Court in the case of DELHI RACE CLUB
1
(1940) LIMITED v. STATE OF UTTAR PRADESH has held as
follows:
“…. …. ….
40. To put it in other words, the case of cheating
and dishonest intention starts with the very inception of
the transaction. But in the case of criminal breach of
trust, a person who comes into possession of the movable
property and receives it legally, but illegally retains it or
converts it to his own use against the terms of the
1
2024 SCC OnLine SC 2248
38
contract, then the question is, in a case like this, whether
the retention is with dishonest intention or not, whether
the retention involves criminal breach of trust or only a
civil liability would depend upon the facts of each case.
41. The distinction between mere breach of
contract and the offence of criminal breach of trust and
cheating is a fine one. In case of cheating, the intention
of the accused at the time of inducement should be
looked into which may be judged by a subsequent
conduct, but for this, the subsequent conduct is not the
sole test. Mere breach of contract cannot give rise to a
criminal prosecution for cheating unless fraudulent or
dishonest intention is shown right from the beginning of
the transaction i.e. the time when the offence is said to
have been committed. Therefore, it is this intention,
which is the gist of the offence.
42. Whereas, for the criminal breach of trust, the
property must have been entrusted to the accused or he
must have dominion over it. The property in respect of
which the offence of breach of trust has been committed
must be either the property of some person other than
the accused or the beneficial interest in or ownership of it
must be of some other person. The accused must hold
that property on trust of such other person. Although the
offence i.e. the offence of breach of trust and cheating
involve dishonest intention, yet they are mutually
exclusive and different in basic concept.
43. There is a distinction between criminal breach
of trust and cheating. For cheating, criminal intention is
necessary at the time of making a false or misleading
representation i.e. since inception. In criminal breach of
trust, mere proof of entrustment is sufficient. Thus, in
case of criminal breach of trust, the offender is lawfully
entrusted with the property, and he dishonestly
misappropriated the same. Whereas, in case of cheating,
the offender fraudulently or dishonestly induces a person
by deceiving him to deliver any property. In such a
situation, both the offences cannot co-exist
simultaneously.”
39
10.2. The Apex Court in the case of ARSHAD NEYAZ KHAN
2
v. STATE OF JHARKHAND , while following its earlier judgment
rendered in the case of DELHI RACE CLUB supra , has held as
follows:
“…. …. ….
21. Furthermore, it is pertinent to mention that if it
is the case of the complainant/respondent No. 2 that the
offence of criminal breach of trust as defined under
Section 405 IPC, punishable under Section 406 IPC, is
committed by the accused, then in the same breath it
cannot be said that the accused has also committed the
offence of cheating as defined in Section 415, punishable
under Section 420 IPC. This Court in Delhi Race Club
(1940) Limited v. State of Uttar Pradesh , (2024) 10 SCC
690 observed that there is a distinction between criminal
breach of trust and cheating. For cheating, criminal
intention is necessary at the time of making false or
misleading representation i.e. since inception. In criminal
breach of trust, mere proof of entrustment is sufficient.
Thus, in case of criminal breach of trust, the offender is
lawfully entrusted with the property, and he dishonestly
misappropriates the same. Whereas, in case of cheating,
the offender fraudulently or dishonestly induces a person
by deceiving him to deliver a property. In such a
situation, both offences cannot co-exist simultaneously.
Consequently, the complaint cannot contain both the
offences that are independent and distinct. The said
offences cannot co-exist simultaneously in the same set
of facts as they are antithetical to each other.
22. At this point, we must hasten to add that the
complaint was filed after a delay of nearly eight years. Learned
counsel for the complainant/respondent No. 2 has failed to
2
2025 SCC OnLine SC 2058
40
impress the Court about the reason for the delay and hence this
fact further raises a suspicion about the bona fides of the
complainant/respondent No. 2. The delay in lodging of the
complaint and FIR, coupled with the vague allegations do not
inspire any confidence in the Court to allow the criminal
proceedings to continue against the appellant. Further, the
complainant/respondent No. 2 had an alternative remedy of
filing a civil suit claiming damages for the alleged violation of his
contractual rights which has not been availed but a route
through criminal proceedings, when no ingredient of offence is
made out, cannot be permitted. Criminal law ought not to
become a platform for initiation of vindictive proceedings to
settle personal scores and vendettas. The appellant therefore, in
our view, could not be attributed any mens rea and therefore,
the allegations levelled by the prosecution against the appellant
are unsustainable.
23. Furthermore, in Inder Mohan Goswami , it was held
by this Court that the Court must ensure that criminal
prosecution is not used as an instrument of harassment or for
seeking private vendetta or with an ulterior motive to pressurise
the accused. It was further held by this Court that it is neither
possible nor desirable to lay down any inflexible rule that would
govern the exercise of inherent jurisdiction. In view of the
above and for the reasons stated above, we are of the
firm opinion that to continue the criminal proceedings
against the appellant herein would cause undue
harassment to him because as observed hereinabove, no
prima facie case for the offence under Sections 406 or
420 IPC is made out.”
10.3. Again, the Apex Court in the case of G. SAMINATHAN
3
v. STATE , has held as follows:
“…. …. ….
8.8. This Court, in the case of Delhi Race Club , while
explaining the difference between the offences of
3
2026 SCC OnLine SC 1460
41
criminal breach of trust and cheating, observed that to
constitute the offence of cheating, it has to be sufficiently
proved that the offender fraudulently or dishonestly
induced a person by deceiving him to deliver any property
and that the said dishonest intention was from the very
inception of the transaction. Whereas, in the case of
criminal breach of trust, what is to be proved is the act of
dishonest misappropriation of the property which the
offender was legally entrusted with, but illegally
misappropriated or converted it to his own use against
the terms of the contract. Thus, in view of the aforesaid
fundamental distinction between the offences of criminal
breach of trust and cheating, this Court in the
abovementioned case observed that
both the offences
cannot co-exist simultaneously. On a careful perusal of
both the provisions as well as the aforesaid dictum of this
Court, we find that with regard to the same property and
on the same set of facts, the offences of criminal breach
of trust and cheating cannot be sustained as against the
accused . We say so because, on one hand, the prosecution
alleges that the refundable security deposit was lawfully
entrusted to the accused by the complainant, which the accused
continued to retain even after the project had failed and after
the disputed property was sold by them to a third party. On the
other hand, it is also alleged that the accused cheated the
complainant by inducing him to part with Rs. 3,00,00,000/-
(Rupees three crore) as refundable security based on a false
representation that the disputed property was free from all
encumbrances. In other words, the allegation by the
prosecution is that the accused was entrusted with the
refundable security deposit, which he later on dishonestly
misappropriated and the allegation that the accused, with
a dishonest intention, induced the complainant to part
with the refundable security deposit based on a false
representation, are not tenable on the same substratum
of facts. If there was a lawful entrustment of Rs.
3,00,00,000/- (Rupees three crore) to the accused under
the Joint Development Agreement, it cannot be a case of
cheating and if so, the non-return of the amount by the
accused as the plan sanction was not granted is not a
case of criminal breach of trust. The dispute between the
parties is essentially civil in nature. The subsequent sale of the
subject property by the accused to a third party may give rise to
42
a cause of action on the civil side to the complainant but not a
case of cheating or criminal breach of trust as the said act of
sale per se is not a criminal act.
8.9. Thus, on perusal of the material on record as well as
from the aforesaid discussion, we hold that continuation of
criminal proceedings instituted against the accused by the
complainant would be nothing but a sheer abuse of the process
of law inasmuch as on a consideration of the allegations, none
of the offences invoked in the FIR as well as the chargesheet
appear to be made out against the accused.”
10.4. The Apex Court in its recent judgment in the case of
4
PARAG KISHORE SATOSKAR v. STATE OF JHARKHAND , has
held as follows:
“…. …. ….
20. There is a further and connected difficulty. The
information alleges both cheating and criminal breach of trust
upon the identical set of facts. As Delhi Race Club (supra)
explains, the two offences are antithetical. In cheating,
the property is parted with because the owner has been
deceived, and the dishonest intention exists at the
inception. In criminal breach of trust, the property comes
lawfully into the hands of the accused and is dishonestly
dealt with thereafter. The registration of the first
information report for both offences upon one indivisible
set of allegations is an indication that the allegations
were not measured against the ingredients of either.”
The cognizance that is taken by the learned Magistrate is for both
the offences under Sections 406 and 420 IPC, which today, cannot
go hand in hand. Even otherwise, the ingredients of both the
4
2026 SCC OnLine SC 1546
43
offences are not even met in the case at hand. There is no victim
that the petitioners have allegedly lured into the transaction with a
dishonest intention right from the inception. There is no transaction
that has taken place in the case at hand. The allegation itself is that
it could have taken place. That cannot become the offence of
cheating. The same goes with the offence under Section 406,
criminal breach of trust.
SECTIONS 420 AND 468 OF THE IPC:
11. Section 420 of the IPC deals with cheating and Section
468 of the IPC deals with forgery and using the forged documents
as genuine. As observed hereinabove, there is no forged document
at all in the case at hand. All documents, even according to the
complaint, were genuine and there is no execution of a forged
document in the case at hand. Jurisprudence is replete with the
law laid down by the Apex Court on what would be the ingredients
of the offence of forgery and cheating.
44
11.1. The Apex Court in the case of MARIAM FASIHUDDIN
5
v. STATE , holds as follows:
“…. …. ….
33. There are two primary components that need to
be fulfilled in order to establish the offence of “forgery”,
namely: ( i ) that the accused has fabricated an
instrument; and ( ii ) it was done with the intention that
the forged document would be used for the purpose of
cheating. Simply put, the offence of forgery requires the
preparation of a false document with the dishonest
intention of causing damage or injury. [ Sushil Suri v. CBI ,
(2011) 5 SCC 708, para 26: (2011) 2 SCC (Cri) 764]
34 . The offences of “forgery” and “cheating”
intersect and converge, as the act of forgery is committed
with the intent to deceive or cheat an individual. Having
extensively addressed the aspect of dishonest intent in
the context of “cheating” under Section 420IPC, it stands
established that no dishonest intent can be made out
against the appellants. Our focus therefore will now be
confined, for the sake of brevity, to the first element i.e.
the preparation of a false document.
35. The determination of whether the appellants
prepared a false document, by forging Respondent 2's
signature, however, cannot be even prima facie
ascertained at this juncture. Considering the primary
ingredient of dishonest intention itself could not be
established against the appellants, the offence of forgery
too, has no legs to stand. It is also significant to highlight
that the proceedings as against the Passport Officer
concerned, who was implicated as Accused 4, already
stand quashed. In such like situation and coupled with
the nature of allegations, we are unable to appreciate as
to why the appellants be subjected to the ordeal of trial.
5
2024 SCC OnLine SC 58
45
36. That apart, there are glaring procedural irregularities
that have been overlooked by the trial Magistrate, which
warrants examination. It is extremely important to delve into
these improprieties since the supplementary charge-sheet filed
by the investigating authority included the offence of “forgery”
under Sections 468 and 471IPC.
… … …
42. We also fail to understand the reliability of the
material based on which the investigating agency or the trial
Magistrate could form a prima facie opinion concerning the
allegation of forgery of signatures of Respondent 2. As observed
earlier, the State FSL report does not substantiate these
allegations. In our opinion, a paid report obtained from a private
laboratory seems to be a frail, unreliable, unsafe, untrustworthy
and imprudent form of evidence, unless supported by some
other corroborative proof. It is painful to mention that
Respondent 2 has not produced any other substantive
proof, nor has the investigating agency obtained any such
material in compliance with the trial Magistrate's order
for further investigation. The basis on which the trial
Magistrate formed a prima facie opinion, in the absence
of such supporting evidence is, therefore, beyond our
comprehension.
… … …
E. Conclusion and directions
51. Consequently, the appeal is allowed; the impugned
judgment of the High Court dated 18-2-2021 [ Mariam
Fasihuddin v. State of Karnataka , 2021 SCC OnLine Kar 16069]
, and that of the trial Magistrate dated 15-3-2018, are hereby
set aside. As a sequel thereto, FIR No. 141/2010
registered at Police Station Adugodi, Bengaluru under
Sections 420, 468, 471 read with Section 34 IPC, lodged
by Respondent 2 against the appellants and all the
proceedings arising therefrom are hereby quashed .”
46
11.2. In the case of VISHAL NOBLE SINGH v. STATE OF
6
UTTAR PRADESH the Apex Court holds as follows:
“…. …. ….
18. On a reading of the FIR as well as the charge-
sheet, we do not find that the offences afore-stated are
made out at all. We do not find any criminal breach of
trust nor any cheating by impersonation. There is also no
cheating and dishonestly inducing delivery of property,
nor have any documents referred to any forgery or
security or any forgery for the purpose of cheating. There
is no reference to any document which has been forged
so as to be used as a genuine document and much less is
there any criminal conspiracy which can be imputed to
the appellants herein in the absence of any offence being
made out vis-à-vis the aforesaid sections.”
For the offences of cheating and forgery, admittedly there must a
victim. It cannot be that all and sundry can blow the whistle of
cheating. It is no doubt correct that criminal law can be set into
motion by any person, but not for all the offences. The offence of
cheating and forgery are two of the few offences where there must
be a victim.
12. The petitioners herein have not even met the threshold of
attempting to commit the alleged offences as afore-mentioned. The
Apex Court delineates between preparation and attempt to commit
6
2024 SCC OnLine SC 1680
47
a criminal act in the case of AMAN KUMAR v. STATE OF
7
HARYANA , wherein it is held as follows:
“…. …. ….
9. A culprit first intends to commit the offence, then
makes preparation for committing it and thereafter
attempts to commit the offence. If the attempt succeeds,
he has committed the offence; if it fails due to reasons
beyond his control, he is said to have attempted to
commit the offence. Attempt to commit an offence can be
said to begin when the preparations are complete and the
culprit commences to do something with the intention of
committing the offence and which is a step towards the
commission of the offence. The moment he commences to
do an act with the necessary intention, he commences his
attempt to commit the offence. The word “attempt” is not
itself defined, and must, therefore, be taken in its
ordinary meaning. This is exactly what the provisions of
Section 511 require. An attempt to commit a crime is to
be distinguished from an intention to commit it; and from
preparation made for its commission. Mere intention to
commit an offence, not followed by any act, cannot
constitute an offence. The will is not to be taken for the
deed unless there be some external act which shows that
progress has been made in the direction of it, or towards
maturing and effecting it. Intention is the direction of
conduct towards the object chosen upon considering the
motives which suggest the choice. Preparation consists in
devising or arranging the means or measures necessary
for the commission of the offence. It differs widely from
attempt which is the direct movement towards the
commission after preparations are made. Preparation to
commit an offence is punishable only when the preparation is to
commit offences under Section 122 (waging war against the
Government of India) and Section 399 (preparation to commit
dacoity). The dividing line between a mere preparation and an
attempt is sometimes thin and has to be decided on the facts of
7
(2004) 4 SCC 379
48
each case. There is a greater degree of determination in attempt
as compared with preparation.”
12.1. The judgment of the Apex Court in AMAN KUMAR
supra is followed by a coordinate Bench in MOHAN v. STATE OF
8
KARNATAKA wherein it is held as follows:
“…. …. ….
8. In the instant case, as could be seen from
complaint as well as charge sheet material namely,
statement of witnesses which would disclose that
accused persons were only discussing amongst
themselves that brass vessel can be shown to public to be
a vessel which would earn crores of rupees and with this
intent, they were attempting to cheat public without any
further act, would not attract Section 511 of IPC.
However mere discussion, though would express the
intent it would not suffice, since other two ingredients of
Section 511 is not found as per the allegations made
against them in the charge sheet .”
13. In the cases at hand, the petitioners have not used the
allegedly forged documents. The Apex Court in the case of JIT
9
VINAYAK AROLKAR v. STATE OF GOA , while considering
whether non-execution of a sale deed would amount to deceiving
the victim, holds as follows:
“…. …. ….
8
Crl.P.No.4338 of 2018 decided on 09-04-2019
9
2025 SCC OnLine SC 31
49
12. It is pertinent to note that the purchasers under
the sale deeds have not made any grievance about the
sale deeds. In the case of Mohd. Ibrahim v State of Bihar, in
paragraphs 20 to 23, this Court held thus:
“20. When a sale deed is executed conveying
a property claiming ownership thereto, it may be
possible for the purchaser under such sale deed to
allege that the vendor has cheated him by making
a false representation of ownership and
fraudulently induced him to part with the sale
consideration. But in this case the complaint is not
by the purchaser. On the other hand, the
purchaser is made a co-accused .
21. It is not the case of the complainant that
any of the accused tried to deceive him either by
making a false or misleading representation or by
any other action or omission, nor is it his case that
they offered him any fraudulent or dishonest
inducement to deliver any property or to consent
to the retention thereof by any person or to
intentionally induce him to do or omit to do
anything which he would not do or omit if he were
not so deceived . Nor did the complainant allege that
the first appellant pretended to be the complainant while
executing the sale deeds. Therefore, it cannot be said
that the first accused by the act of executing sale deeds
in favour of the second accused or the second accused
by reason of being the purchaser, or the third, fourth
and fifth accused, by reason of being the witness, scribe
and stamp vendor in regard to the sale deeds, deceived
the complainant in any manner.
22. As the ingredients of cheating as stated in
Section 415 are not found, it cannot be said that there
was an offence punishable under Sections 417, 418, 419
or 420 of the Code.
A clarification
23. When we say that execution of a sale
deed by a person, purporting to convey a property
which is not his, as his property, is not making a
false document and therefore not forgery, we
should not be understood as holding that such an
50
act can never be a criminal offence. If a person
sells a property knowing that it does not belong to
him, and thereby defrauds the person who
purchased the property, the person defrauded,
that is, the purchaser, may complain that the
vendor committed the fraudulent act of cheating.
But a third party who is not the purchaser under
the deed may not be able to make such complaint .”
(emphasis added)
12.1 In this case, it is impossible to understand
how the appellant deceived the 4th respondent and how
the act of execution of sale deeds by the appellant caused
or was likely to cause damage or harm to the 4th
respondent in body, mind, reputation or property. The
appellant has not purported to execute the sale deeds on
behalf of the 4th respondent. He has not purported to
transfer the rights of the 4th respondent. There is no
allegation that the appellant deceived the 4th respondent
to transfer or deliver the subject property.
13. Taking the complaint as correct, the offence of
cheating under Section 415 of IPC was not made out
against the appellant. Moreover, the complaint was filed by
the 4th respondent for the first time after a time gap of two
years from the date of institution of the civil suits. In the
complaint, he suppressed the fact that civil suits were already
filed in which applications for temporary injunction were made.
When there was a dispute over the title, the act of the 4th
respondent of setting in motion criminal law two years after the
date of filing of the suits amounts to nothing but abuse of the
process of law.”
The Apex Court in the afore-quoted judgment holds that the
appellant therein has not put appropriate sale deeds into execution.
When there is no transfer of rights to the accused, there can be no
allegation that the victim was deceived.
51
14. The issue that now remains is, whether the complainant
had locus to register the complaint. The allegations in the present
cases stem from a stranger presenting a pen drive to the
Commissioner of the BDA. This Court in the case of NALEEN
10
KUMAR KATEEL v. STATE OF KARNATAKA , while considering
who would have locus to register a complaint for certain offences as
enumerated under Section 39 of the Cr.P.C., holds as follows:
“…. …. ….
Issue No.2:
Whether the complainant to be considered to be an
aggrieved person to seek registration of an offence under
Section 384 of the IPC for extortion?
17. Here comes the issue of locus, the kernel of the
conundrum , the pivotal issue No.2. The complainant, as
observed hereinabove, is Co-President of Janaadhikaara
Sangharsha Parishath. Admittedly he is not the victim. It is not
his case that he has been put into fear for delivery of any
property and the property has been delivered by him to the
accused. Therefore, he is alien to the alleged transaction or the
observations made by the Apex Court. It is also trite law that
criminal law can be set into motion by any person, a caveat , not
for all offences under the IPC. Therefore, the interplay between
the concept that criminal law can be set into motion by any
person, and its exceptions is required to be noticed.
18. The concept that criminal law can be set into
motion by any person is not a concept that is dropped
from air. It bears statutory recognition, as obtaining
under Section 39 of the Cr.P.C. Section 39 of the Cr.P.C.,
reads as follows:
10
Crl.P.No.10321 of 2024 decided on 03-12-2024
52
“ 39. Public to give information of certain
offences.—(1) Every person, aware of the
commission of, or of the intention of any other
person to commit, any offence punishable under
any of the following sections of the Indian Penal
Code (45 of 1860), namely:—
( i ) Sections 121 to 126, both inclusive, and
Section 130 (that is to say, offences against
the State specified in Chapter VI of the said
Code);
( ii ) Sections 143, 144, 145, 147 and 148 (that is
to say, offences against the public
tranquillity specified in Chapter VIII of the
said Code);
( iii ) Sections 161 to 165-A, both inclusive (that
is to say, offences relating to illegal
gratification);
( iv ) Sections 272 to 278, both inclusive (that is
to say, offences relating to adulteration of
food and drugs, etc.);
( v ) Sections 302, 303 and 304 (that is to say,
offences affecting life);
(v-a ) Section 364-A (that is to say, offence
relating to kidnapping for ransom, etc.);
( vi ) Section 382 (that is to say, offence of theft
after preparation made for causing death,
hurt or restraint in order to the committing
of the theft);
( vii ) Sections 392 to 399, both inclusive, and
Section 402 (that is to say, offences of
robbery and dacoity);
( viii ) Section 409 (that is to say, offence relating
to criminal breach of trust by public servant,
etc.)
( ix ) Sections 431 to 439, both inclusive (that is
to say, offences of mischief against
property);
53
( x ) Sections 449 and 450 (that is to say, offence
of house-trespass);
( xi ) Sections 456 to 460, both inclusive (that is
to say, offences of lurking house-trespass);
and
( xii ) Sections 489-A to 489-E, both inclusive
(that is to say, offences relating to currency
notes and bank notes),
shall, in the absence of any reasonable excuse, the
burden of proving which excuse shall lie upon the
person so aware, forthwith give information to the
nearest Magistrate or police officer of such
commission or intention.
(2) For the purposes of this section, the term
“offence” includes any act committed at any place out
of India which would constitute an offence if
committed in India.”
Section 39 clearly demarcates what are the offences that
can be complained of by the public and person aggrieved.
The section clearly indicates that every person aware of
the commission of offence or of the intention of any
person to commit any offence under Sections 121 to 126
which come under Chapter-VI of the IPC deal with
offences against the State; Section 130 also figures in
Chapter-VI which is aiding escape or harbouring a
prisoner; Sections 143 to 148 which come under Chapter-
VIII deal with offences against public tranquillity;
Sections 161 to 165A which come under Chapter-IX deal
with offences by or relating to public servants; Sections
272 to 278 both inclusive which come under Chapter-XIV
deal with offences affecting public health, safety,
convenience, decency and morals; Sections 302 to 304
which come under Chapter XVI deal with offences
affecting the human body; Section 364A which deals with
kidnapping for ransom; Section 382 which comes under
Chapter-XVII deals with theft or offences against
property; Sections 392 to 399 deal with punishment for
54
robbery and extends up to dacoity and preparation for
dacoity, even assembling for the purpose of committing
dacoity; Section 409 deals with criminal breach of trust
by a public service; Section 431 to 439 deal with mischief
by injury to public road and all other offences which
involve public; Sections 449 and 450 deal with grievous
hurt while committing house trespass or house breaking;
Sections 489A to 489E deal with counterfeiting currency
notes and bank notes, making use of documents
resembling currency notes and bank notes. Section 39
stops at that.
19. A Constitution Bench of the Apex Court in the case of
LALITA KUMARI supra interprets Section 39 and its interplay
with Section 154. The Apex Court holds as follows:
“…. …. ….
55. In view of the above, the use of the word
“shall” coupled with the scheme of the Act lead to the
conclusion that the legislators intended that if an
information relating to commission of a cognizable
offence is given, then it would mandatorily be registered
by the officer in charge of the police station. Reading
“shall” as “may”, as contended by some counsel, would
be against the scheme of the Code. Section 154 of the
Code should be strictly construed and the word “shall”
should be given its natural meaning. The golden rule of
interpretation can be given a go-by only in cases where
the language of the section is ambiguous and/or leads to
an absurdity.
56. In view of the above, we are satisfied that
Section 154(1) of the Code does not have any ambiguity
in this regard and is in clear terms. It is relevant to
mention that Section 39 of the Code casts a
statutory duty on every person to inform about
commission of certain offences which includes
offences covered by Sections 121 to 126, 302, 64-
A, 382, 392, etc. of the Penal Code. It would be
incongruous to suggest that though it is the duty
of every citizen to inform about commission of an
offence, but it is not obligatory on the officer in
charge of a police station to register the report.
The word “shall” occurring in Section 39 of the
55
Code has to be given the same meaning as the
word “shall” occurring in Section 154(1) of the
Code.”
(Emphasis supplied)
The Apex Court holds that Section 39 of the Code casts a
statutory duty on every person to inform about
commission of certain offences, as found in Section 39
covered by several sections quoted therein and further
holds that it would be incongruous to suggest that
though it the duty of every citizen to inform about
commission of an offence, it is not obligatory on the
officer in-charge of the Police Station to register the
report. The finding of the Apex Court is unequivocal and
the purport is clear that any person can set the criminal
law in motion only insofar as offences enumerated in
Section 39 and notwithstanding the enumeration under
Section 39, if the officer in-charge of the Police Station
would not register the crime, it would not lead to
incongruity. Therefore, the unmistakable inference of Section
39 and its purport as held by the Apex Court is that, Sections
383 and 384 are persons specific, which would mean that they
can be alleged only by the aggrieved person. It is not public
specific. For an illustration, if a person is assaulted and has
suffered injury that cannot be complained of by a
stranger/neighbour. The person who has suffered assault should
necessarily be the complainant. If he chooses not to register the
complaint for reasons best known to him, a stranger cannot
complain that a stranger has been assaulted and he is the
victim. Likewise, as held by the Apex Court in the case of SALIB
supra theft would not require consent. Extortion would require
putting a person in fear of consent.
20. Insofar as the judgments relied on by the
nd
learned senior counsel for the 2
respondent/complainant in the cases of SHEONANDAN
PASWAN and JAGJEET SINGH supra , both the judgments
of the Apex Court follow the law laid down in A.R.
ANTULAY supra . The Apex Court holds therein that the
concept of locus standi of a complainant is a concept
foreign to criminal jurisprudence. The Apex Court holds
56
in SHEONANDAN PASWAN supra that it does not find why
the prosecution for an offence against the Society that
was alleged in that case was being wrongly withdrawn.
The Apex Court was clearly holding that offences against
the Society should not merely an individual wrong.
Therefore, the Apex Court holds that any member of the
Society must have locus to initiate a prosecution and
desist withdrawal of such prosecution if had been
initiated, as the offences therein were offences of
corruption and therefore, the Apex Court holds that any
public interested in cleanliness of public administration
and public morality would be entitled to file a complaint.
There can be no qualm about the principles elucidated by
the Apex Court. The Apex Court was clear that where
offences are against the Society, it did not consider the
purport of Section 39 of the Cr.P.C., therein. Again, the
Apex Court in JAGJEET SINGH was considering the
concept of victim. The Apex Court holds victim can be a
stranger even and a stranger can become an informant
and the victim need not be the complainant or the
informant for an offence of felony. There can be no qualm
again for the principle so laid down therein. The
judgments so rendered by the Apex Court in
SHEONANDAN PASWAN and JAGJEET SINGH cannot be
read in isolation to the facts obtaining before the Apex
Court in those cases and if it is considered on the facts
obtaining therein, it would become inapplicable to the
facts obtaining in the case at hand. Therefore, all the
three judgments in the cases of A.R. ANTULAY ,
SHEONANDAN PASWAN and JAGJEET SINGH are
inapplicable to the facts obtaining in the case at hand.
21. Reference is also made to corresponding provisions
with regard to Section 384 of the IPC in the new regime, the
Bharatiya Nyaya Sanhita, 2023 (‘BNS’ for short). Section 308 of
BNS deals with extortion. It reads as follows:
“ 308. Extortion .—(1) Whoever intentionally
puts any person in fear of any injury to that person, or
to any other, and thereby dishonestly induces the
person so put in fear to deliver to any person any
property, or valuable security or anything signed or
57
sealed which may be converted into a valuable security,
commits extortion.
Illustrations
( a ) A threatens to publish a defamatory libel
concerning Z unless Z gives him money. He thus
induces Z to give him money. A has committed
extortion.
( b ) A threatens Z that he will keep Z's child in
wrongful confinement, unless Z will sign and
deliver to A a promissory note binding Z to pay
certain monies to A. Z signs and delivers the
note. A has committed extortion.
( c ) A threatens to send club-men to plough up Z's
field unless Z will sign and deliver to B a bond
binding Z under a penalty to deliver certain
produce to B, and thereby induces Z to sign and
deliver the bond. A has committed extortion.
( d ) A, by putting Z in fear of grievous hurt,
dishonestly induces Z to sign or affix his seal to a
blank paper and deliver it to A. Z signs and
delivers the paper to A. Here, as the paper so
signed may be converted into a valuable security.
A has committed extortion.
( e ) A threatens Z by sending a message through an
electronic device that “Your child is in my
possession, and will be put to death unless you
send me one lakh rupees.” A thus induces Z to
give him money. A has committed extortion.”
Section 308 has 7 sub-sections. It covers the entire spectrum
from Sections 383 to 388 of the IPC. There is no other change in
the language. It is only a change of grouping of the offence.
Even the illustrations are the same. Therefore, the judgments of
the Apex Court quoted supra, qua interpretation of Sections 383
and 384 of the IPC would also become applicable to Section 308
of the BNS. Likewise, Section 33 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 is the corresponding provision of
Section 39 of the Cr.P.C. There is again no change, addition or
deletion of offences enumerated in Section 39 of the Cr.P.C., in
58
Section 33 of the BNSS. Therefore, the interpretation rendered
by this Court supra, qua Section 39 of the Cr.P.C., would
become applicable to Section 33 of the BNSS as well.
22. Therefore, I have no hesitation to hold that the
complaint suffers from want of locus to register the complaint
even for offence punishable under Section 384 of the IPC for
extortion. The learned Magistrate who has referred the matter
for investigation in terms of his order supra does not advert to
this issue. Merely because the complainant has registered a
complaint which projects alleged extortion, the learned
Magistrate cannot become a rubber stamp Presiding Officer to
the complaint, to refer the matter for investigation, without
application of mind to the relevant statutory provisions.
Therefore, issue No.2 is also answered against the
complainant, holding that he is an alien to the transaction
and an alien cannot complain of extortion .”
(Emphasis supplied at each instance)
This Court in the afore-quoted judgment, while following the law
laid down by the Apex Court, holds that Section 39 of the Cr.P.C.
lays down a list of offences under the IPC, wherein the criminal law
can be set into motion on information from the public. Section 39 of
the Cr.P.C does not include in its ambit the offences alleged against
the petitioners herein.
15. In the light of the judgments rendered by the Apex
Court and that of this Court, all of which have been noted
hereinabove, the unmistakable interference would be that, further
proceedings if permitted to be continued against the petitioners
59
would become an abuse of the process of law and result in
miscarriage of justice.
16. For the aforesaid reasons, the following:
O R D E R
(i) Criminal Petitions are allowed.
(ii) C.C.No.5017 of 2021 pending before the IV Additional
Chief Metropolitan Magistrate, Bengaluru concerning FIR
in crime No.89 of 2020 and charge sheet filed thereto
stands quashed qua the petitioners.
,,,
Sd/-
(M.NAGAPRASANNA)
JUDGE
Bkp
CT:BR