crl.rp 195-11 & conn. -...

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 21ST DAY OF JUNE, 2012

BEFORE:

THE HON’BLE MR. JUSTICE A.S.PACHHAPURE

CRIMINAL REVISION PETITION No.195 OF 2011

C/w.

CRIMINAL PETITION Nos.6475 OF 2009, 4402 OF 2010,

CRIMINAL REVISION PETITION Nos.634, 474 AND 761 OF 2011

In Crl.RP 195/2011:

BETWEEN:

T. Shyam Prasad,

Aged about 46 years,

S/o. Narayana Reddy,

Managing Partner,

M/s. Balaji Realtors,

No.9, 2nd Floor,

Bheemasena Garden Street,

Mylapore, Chennai-600 004. ... PETITIONER/S

[By M/s. C.V. Nagesh Associates, Advs.]

AND:

The Superintendent of Police,

Central Bureau of Investigation,

Anti-Corruption Bureau,

Bangalore. ... RESPONDENT/S

[By Sri. C.H. Jadhav, Adv. for CBI.]

This Crl.R.P. is filed u/Section 397 read with 401

of Cr.P.C. praying to set aside the Order dt.22.01.2011

passed by the XXXII Addl. C.C. and S.J., and Spl. Judge

for CBI cases, Bangalore in Spl. C.C. No.31/2010.

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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In Crl.P 6475/2009:

BETWEEN:

T. Shyam Prasad,



Managing Partner,


No.9, 2nd Floor,




AND:






This Crl.P. is filed u/Section 482 Cr.P.C., praying

to quash the First Information Report in No.

R.C.01(A)/2007 registered by the CBI/ACB, Bangalore, for

offences which are made penal under Section 120-B read

with Section 420 of IPC and Section 13(2) read with

Section 13(1)(d) of the Prevention of Corruption Act,

1988 which information report has been filed on the file

of the Special Judge for CBI cases and XXXII Addl. City

Civil and Sessions Judge, Metropolitan Area, Bangalore

City.

In Crl.P 4402/2010:

BETWEEN:

T. Shyam Prasad,



Managing Partner,


Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

3

No.9, 2nd Floor,




AND:






This Crl.P. is filed u/Section 482 Cr.P.C. praying

to set aside the Order dt.02.02.2010 passed by the XXXII

Addl. C.C. & S.J. and Spl. Judge for CBI cases, Bangalore

city in Spl.C.C. No.31/2010, directing the registration

of a case against the petitioner for an offence which is

made penal under Section 120-B r/w 420 of IPC and under

Section 13(2) read with 13(1)(d) of Prevention of

Corruption Act, 1988 and ordering process against him for

his appearance in the case before the Court, presumably,

after taking cognizance of the offences complained and

further pleased to quash the entire proceedings in the

case.

In Crl.RP 634/2011:

BETWEEN:

1. V.R. Talithaya,

S/o. Ramakrishna Talithaya,


R/at 103, Horizon Homes,

Museum Road, Mangalore.

2. C.B. Subramanian,

S/o. Late C.S. Balakrishnan,


R/at 53, Annabelle Manor-2,

Near KMC Bejai, Mangalore. ... PETITIONER/S

[By Sri. Siddappa, Sri. Sunil & Sri. Nitin, Advs.]

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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AND:


The Central Bureau of Investigation,

C.B.I. Office, Bellary Road,




Cr.P.C. praying to set aside the Order dt:22.01.2011 in

Spl.C.C. No.31/10 (arising out of FIR) No.01A/2007) on

the file of the XXXII Addl.C.C. and S.J., and Spl. Judge

for CBI cases, Bangalore.

In Crl.RP 474/2011:

BETWEEN:

P.N. Radhakrishnan,

Advocate,

Aged 50 years,

S/o. P.N. Nambisan,

41, Manali Nagar,

Arumbakkam,

Chennai-600 106. ... PETITIONER/S

[By M/s. M.T. Nanaiah & Associates, Advs.]

AND:



Anti-Corruption Branch,

No.36, Bellary Road,

Ganganagar,

Bangalore-560 032. ... RESPONDENT/S


Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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Cr.P.C. praying to set aside the Order dt.22.01.2011

passed by the XXXII Addl. City Civil and S.J. and Spl.

Judge for CBI cases, Bangalore in Spl.C.C.No.31/2010 and

acquit the petitioner from all charges.

In Crl.RP 761/2011:

BETWEEN:

P.S. Ravindran,

S/o. P.B. Sripathy Rao,


Associate Vice-President (Finance),

M/s. Mangalore Refinery and

Petrochemicals Ltd.,

Mangalore. ... PETITIONER/S

[By Sri. R. Nagendra Naik, Adv.]

AND:

Superintendent of Police,


Anti-Corruption Branch,

36, Bellary Road,

Ganga Nagar,



This Crl.R.P. is filed u/Section 397 Cr.P.C.

praying to set aside the Order dated:22.01.2011 passed by

the XXXII Addl. C.C. and S.J., and Spl.Judge for CBI

cases, Bangalore in Spl.C.C. No.31/2010.

These Crl.Ps & Crl.RPs having been heard and

reserved for Orders, this day the Court pronounced the

following:

* * *

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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ORDER

The petitioners in these cases are accused Nos.1 to

5 in Special Case No.31/2010 pending on the file of XXXII

Addl. City Civil Judge, Bangalore City, wherein they have

challenged the Orders, taking up cognizance, issue of

process and rejecting their plea for discharge in the

aforesaid case registered for the offence punishable

under Sections 120-B r/w. 420 IPC and under Section 13(2)

r/w. 13(1)(d) of the Prevention of Corruption Act, 1988

[hereinafter called as “P.C. Act” for short].

2. Sans unnecessary details, the brief facts of the

case are as under:

The parties are referred to as per their rank

before the trial Court for the sake of convenience.

(1) Sri. V.K.Thalithaya [accused No.1], the then

Senior Vice President, HR of M/s. Mangalore Refinery and

Petrochemicals Limited, Mangalore, [hereinafter called as

“M/s.MRPCL”. (2) Sri. C.B.Subramanyam [accused No.2],

Vice President of Marketing of M/s.MRPCL. and (3) Sri.

P.S.Ravindran [accused No.3], Associate Vice President of

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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M/s. MRPCL are said to have entered into a criminal

conspiracy with Sri.T.S.Sham Prasad [accused No.4],

Managing Partner of M/s. Balaji Realtors, Chennai and

Sri. P.N.Radhakrishnan [accused No.5], Practicing

Advocate, Chennai, in the matter of awarding contract for

acquiring 100 acres of land for setting up of an Oil

Terminal near Ennnore Port, Chennai, Tamil Nadu, for M/s.

MRPCL.

A Committee was constituted consisting of accused

Nos.1 and 2 and others for awarding the contract

pertaining to procurement of 100 acres of land for

setting up of Oil Terminal near Ennnore Port, Chennai,

Tamil Nadu, for M/s. MRPCL. and the accused had approved

the publication of a tender notice bereft of details in

response to the tender notice. As many as 15 parties had

submitted their bids out of which, only 5 persons had

fulfilled the requirements of M/s. MRPL.

Accused Nos.1 to 3 were the members of tender

processing Committee, which was constituted on 20.11.2003

and they recommended acquisition of the land through M/s.

Balaji Realtors at Rs.6.50 lakhs per acre excluding

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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registration and stamp duties leaving out Sri. M.Sudhakar

and M/s. Saravanan arbitrarily. The committee is said to

have not assessed the guidance value/market value of the

land prevailing at the time of awarding the contract,

which resulted in the contract being awarded at a rate

much higher than the prevailing market rate and higher

than the rate quoted by the other two bidders. They said

to have awarded the contract pertaining to fencing of the

land to M/s. Balaji Realtors though the same did not form

part of the work shown in the tender notice. Thus it is

alleged that accused Nos.1 to 5 in the matter of awarding

contract of procurement of the 100 acres of land over and

above the market guidance value and thereby caused loss

of Rs.2,62,33,282 to M/s. MRPCL and it is under these

circumstances that a criminal case was registered vide RC

01(A)/2007, dated 18.01.2007 against the aforesaid

accused for the offence punishable under Section 120-B

r/w. 420 IPC and under Sections 13(2) r/w. 13(1)(d) of

the P.C. Act. On the basis of a source of information

regarding fraudulent transaction in procurement of 100

acres of land for setting up of an oil terminal near

Ennore port. It is alleged against the accused that in

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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furtherance of conspiracy among accused Nos.1 to 5,

accused No.1 had issued a tender notice for the outright

purchase of 100 acres of land at Ennore, Chennai and the

same was published in the daily newspapers viz., Hindu,

The New Indian Express and The Daily Tanthi inviting

quotations to this submitted on or before 07.11.2003 and

in addition to Sri. M.Sudhakar, M/s. Balaji Realtors

[accused No.4] among others had submitted their

quotations in response to the tender notice. The

Technical Committee aforesaid had evaluated the land

offered by the said bidders on parameters such as

locations, the exit/entry to the said site, railway lane,

distance from Ponneri High Road, distance from Ennore

Port etc., and a report was submitted identifying the

lands at 3 locations and accused No.2 had contacted

accused No.5, the Advocate and sought his services for

obtaining valuation certificates with respect to the

lands identified by the Technical Committee as suitable

for setting up of the marketing terminal. Accordingly,

accused No.5 obtained the valuation report from Capt.

Kaliamoorthi, Government Approved Valuer and Sri.

Balasubramani and it was sent to accused No.1, the then

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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Vice President, M/s. MRPCL. The Committee consisting of

accused Nos.1 to 3 processed the tenders and after

opening the bids found that accused No.4 had quoted the

rate at Rs.9.5 lakhs per acre, M/s. M.Sudhakar at Rs.4.3

lakhs per acre, M/s. Shriram Enterprises at Rs.10.5 lakhs

per acre, M/s. Saravanan at Rs.6.6 acres per acre and

M/s. Rama International had quoted price at Rs.12 lakhs

per acre. The prosecution also alleges that accused

Nos.1 to 3 in conspiracy with the other accused after

negotiating the price with accused No.4, accepted the

tender for sale of 100 acres of land at the rate of

Rs.6.5 lakhs per acre and that accused No.5 had given his

legal scrutiny report without taking into account the

provisions made under Rule 34 of Re-union of the

Immovable Trust Property Rules. There was no liquidated

damages clause for failure to comply with the terms of

the agreement and the process was delayed enabling

accused No.4 to handover 100 acres of land, without

attracting penalty for the delay. It is also alleged

that in unprofessional manner in respect of methodology

for deciding the tender, the bid of M/s. M.Sudhakar was

rejected denying him an opportunity to immobilize the

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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documents of 100 acres of land by accepting the report of

recommendation of accused No.5 and their conduct was

sufficient to indicate that they intend to eliminate the

said bidders in favour of M/s. Balaji Realtors [accused

No.4]. It is alleged against accused No.4 that he had

suppressed the information that 8.69 acres of land was

held by temples and that accused No.5 deliberately issued

a favourable legal scrutiny report concealing important

information. It is also the case of the prosecution that

accused No.4 quoted value of the land at Rs.6.5 lakhs per

acre and the same was accepted by accused Nos.1 to 3

though market value or the guidance value of the land at

that time was very much low. It is under these

circumstances that the charge-sheet came to be laid

against the accused for the aforesaid offences.

Crl.P. Nos. 6475/2009 and 4402/2010 have been filed

by accused No.4 challenging issuance of process,

registration of the FIR and the crime against him.

Accused Nos.1 and 2 have filed Crl.R.P. No.634/2011,

challenging the Order rejecting their plea to discharge

them, accused No.3 to 5 have filed Crl.R.P. No.761/2011,

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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Crl.R.P. No.195/2011 and Crl.RP.474/2011 respectively for

the same relief.

3. In the circumstances, I have heard learned

counsel for the parties.

4. The point that arises for my consideration is;

Whether the petitioners have made out

grounds to call for interference in the

Order passed by the trial Court dated

22.01.2011 rejecting their request for

discharge?

5. Learned counsel for the petitioners would

contend that the price of the land at Rs.6.5 lakhs per

acre fixed by the Committee is even far less than the

prevailing market price as is evident from the statement

of the Manager [HR-ONGC] and therefore, an Agreement was

entered into on 03.08.2004 to purchase the land. He also

contends that subsequent to the Agreement of Sale, Sale

Deeds have been executed through power of attorney

holder of the vendors and interest in the land has been

transferred to M/s. MRPCL. So far as 8 acres of land is

concerned, he contends that the sanction of Muzarai

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

13

Department was obtained and difference in price was

adjusted from the amount payable to accused No.4.

Therefore, he contends that there is no loss at all to

M/s. MRPCL and further even the writ petition filed by

M/s. Shriram Enterprises challenging the acceptance of

the bid of accused No.4 was dismissed on 26.07.2004 by

the High Court of Judicature at Madras and therefore, he

claims that the sanctity of the sale transaction is

proved by the Judgment of the High Court and therefore,

the prosecution launched against the petitioners is

improper and there is no material on record to prima

facie prove amassing of wealth and an act of cheating.

He further contends that the committee was justified in

rejecting the bid of M/s. M.Sudhakar who had produced

title deeds of only 35 acres of land and even the land

offered was not contiguous one. So, it is contended that

there is no wrong committed by the Committee in accepting

the bid of accused No.4. Further, it is also the

contention that in pursuance of acceptance of the bid, as

the amount was not paid, accused No.4 initiated

arbitration proceedings, wherein an Award has been passed

against M/s. MRPCL and the execution proceedings in

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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pursuance of the Award passed is pending. It is the

further contention that there is no material on record to

constitute an offence under Section 420 IPC and further

that there is no material against accused No.5 about any

conspiracy to cheat the company. Some additional

documents have been produced in the revision petitions

vide memo dated 11.01.2012 in Crl.RP. No.195/2011, which

include execution petition filed by accused No.4 in the

High Court of Judicature at Madras, Agreement dated

03.08.2004 entered between accused No.4 and M/s. MRPCL.,

the orders passed by the High Court of Judicature, Madras

in E.P. No.692/2009 and also the Sale Deeds of the temple

lands. Learned counsel contends that these documents

though produced in the petition could be considered as

this Court has inherent jurisdiction under Section 482

Cr.P.C.

6. So far as production of the additional

documents before this Court and acceptance of the

contents therein are concerned, learned counsel has

relied upon the decisions reported in (1) ILR 1997 Kar.

2595 [M/s. Silk Import & Export, INC, Vs. M/s. Exim Aides

Silk Exporter & anr.]; (2) (2009)1 Supreme Court Cases

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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516 [R.Kalyani Vs. Jank C.Mehta and others]; (3) 2011 AIR

SCW 1199 [Harshendra Kumar D Vs. Rebatilata Koley Etc.]

and (4) Air 2009 Supreme Court 1013 [Rukmini Narvekar Vs.

Vijaya Satardekar & Ors.].

7. As could be seen from the sum and substance of

the principles laid-down by this Court and the Apex Court

in the aforesaid decisions, it has been held that the

public documents or the material relied upon by the

accused, which is beyond suspicion can be taken into

consideration by the Court while exercising power under

Sections 397 and 482 Cr.P.C. When in a criminal case,

yet the trial is to commence, the materials relied upon

by the accused can be looked into if the public document

are beyond suspicion or doubt and if they are helpful to

the accused, the said documents can be taken into

consideration even to quash the proceedings. The

documents which are sought to be produced vide Memo dated

11.01.2012 are the copies of Execution Petition

No.692/2009 filed before the High Court of Judicature at

Madras. Copy of the Award, Sale Deeds relating to the

property purchased from the owners to accused No.4 as a

power of attorney holder and all these documents are

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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subsequent to acceptance of the bid. It is relevant to

note that the prosecution of the accused before the trial

Court is only because that the land offered by accused

No.4 in the bid were accepted by accused Nos.1 to 3 at a

higher price than the actual market value of these land

and the prosecution has come up with a case that the

guidance value of these lands is in between Rs.50 to 60

thousand per acre and that accused No.4 in conspiracy

with the other accused having offered the land at Rs.6.5

lakhs per acre, the same was accepted only to cause

wrongful loss to the company and thereby the accused

having committed the offence for which they have been

charge-sheeted, which includes an offence under Section

420 IPC. The documents, which had been produced by memo

dated 11.01.2012 referred to supra are in relation to the

events that occurred subsequent to acceptance of that

land at the rate of Rs.6.5 lakhs per acre. As the

proceedings relating to acceptance of the bid, the

negotiations in relation to the price of the land were

never stayed, in fact there was no difficulty for accused

No.4 to proceed against the company to realize the sale

consideration by filing arbitration proceedings getting

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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an Award and seeking execution of the same after the Sale

Deeds were executed by the vendors through a power of

attorney holder-accused No.4. Therefore, as these

documents pertain to subsequent events, the accused

cannot take the benefit of these documents produced in

the petition. Even if the principles laid-down by the

courts in the decisions referred to supra are be accepted

as the documents which have been produced have no

relevance for prosecution of the accused, the said

documents need not be looked into for any purpose.

8. Learned counsel for accused Nos.1 and 2 has

placed reliance on the decision of the High Court of

Gujarat, reported in AIR 1999 Gujarat 341 [Amit B.Thakker

Vs. Air India, Ahmedabad and another]; wherein it has

been held as under:

“Note (B): Where tender in respect of

ground flight handling was awarded to

tenderer quoting higher rate, it cannot be

said to be arbitrary because in matters

where public interest is involved merely

low rate should not be the criterion for

awarding contract. On the other hand,

unless public interest is involved and

affected, the action should not be

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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interfered with simply on the ground that

by accepting higher rate, some burden to

the exchequer is likely to be caused.

After all, if better services are to be

obtained for rendering to passengers of

International Flight and if some higher

price is paid to the person offering such

services, it cannot be said that public

interest is adversely affected; rather

public interest is adequately served when

sufficient services are rendered by

experienced experts offering such

services.” [emphasis supplied by me]

9. Learned counsel relying on the decision

referred to supra and the statements of the witnesses to

the effect that the lands sold at Rs.6.5 lakhs per acre

is less than the prevailing market value of the land

claimed that when a huge land of about 100 acres is being

purchased, there is a possibility that the sellers may

quote higher price to get the benefit as accused Nos.1 to

3 wanted the land which is contiguous, it may be that

there is some burden to the exchequor in accepting the

higher rate. Therefore, the learned counsel contend that

this itself is not prima facie sufficient to hold that

there is a conspiracy to purchase the land at higher

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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price and cheat the company. On this aspect of the

matter, if the statements of the witnesses and the

material placed on record is perused, it is very much

clear that the owners of the lands which are offered to

the Company through the process of bidding was agreed to

be sold at Rs.3 lakhs per acre and accused No.4 had

entered into a transaction with the owners of the land

measuring about 100 acres to pay a sum of Rs.3 lakhs per

acre and in turn had agreed to sell the said land at the

rate of Rs.6.5 lakhs per acre. Prima facie, it would

indicate that accused No.4 being the power of attorney

holder, which is a sort of agency on behalf of the owners

of the land offered the land at Rs.6.5 lakhs per acre, to

mean, for more than 150% of the actual market value of

the land. Prima facie, this act on the part of accused

No.4 to claim the price at Rs.3.5 lakhs per acre more

than the price of the land is prima facie sufficient to

infer an intention to cause wrongful loss and to make a

wrongful gain. Further prima facie, a dishonest intention

on the part of accused No.4 could be inferred. At the

same time, it is relevant to note that accused Nos.1 to 3

were very much aware that the land owners had agreed to

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sell the land at Rs.3 lakhs per acre and knowingly agreed

to purchase, on negotiations, the land at Rs.6.5 lakhs

per acre. Prima facie, from the conduct of accused Nos.1

to 4 in either selling or purchasing the land at Rs.6.5

lakhs per acre though the market value was prima facie

Rs.3 lakhs per acre, prima facie attracts the provisions

of Section 420 IPC. Therefore, the principle laid-down

in the decisions referred to supra cannot be attracted as

it is not some burden to the exchequer and the burden is

more than Rs.2 crores on the company. Though learned

counsel referred to a decision of the Apex Court reported

in AIR 1973 Supreme Court 326 [The State of Kerala Vs.

A.Pareed Pillai & another]; wherein it is held;

“To hold a person guilty of the

offence of cheating, it has to be shown

that his intention was dishonest at the

time of making the promise. Such a

dishonest intention cannot be inferred from

the mere fact that he could not

subsequently fulfil the promise.”

The principle herein also cannot be applied to the facts

on hand in the context of the facts referred to supra.

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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10. It is the submission of the learned counsel

for accused Nos.1 to 3 that accused Nos.1 to 3 are the

members of the Committee constituted to recommend the

purchase of the land and only had an advisory role and

the decision was to be taken by the Board of Directors

and in the circumstances, he contends that accused Nos.1

to 3 had not taken any decision in the matter and as

their part was only to recommend purchase of the land of

accused No.4, they are not the deciding authority. On

this aspect of the matter, learned counsel has placed

reliance on the decision of the Apex Court reported in

(1979)1 Supreme Court Cases 535 [S.P.Bhatnagar Vs. State

of Maharashtra]; wherein it is held;

“It has also to be borne in mind that

the Tender Committee which comprised of the

Operation Manager and the Financial

Controller in addition to A-1 had only an

advisory role to play and the decision to

entrust the contract to a particular

contractor lay with the Chairman of the

Board of Directors in consultation with the

coordinator and Sales Manager who was above

the Tender Committee.”

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

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Further he also relied upon the decision reported in

(2009)6 Supreme Court Cases 444 [State of Punjab Vs.

Sohan Singh] and the Apex Court in this decision has

held;

“The respondent, who was a Junior

Engineer, according to P.W.9 had no role to

play in the matter. Priority in the matter

of grant of connection could only be

granted by the higher authorities in the

Board.” [Para 15]

11. It is true that accused Nos.1 to 3 were the

members of the Committee constituted to recommend for

purchase of the land. But, at the same time, from the

material placed on record reveals that the recommendation

is in respect of the land offered by accused No.4 only

and no other person/s. Furthermore, so far as actual

price of the land is concerned, wherein the vendors

agreed to sell the property was at Rs.3 lakhs per acre,

was within the knowledge of accused Nos.1 to 3 and also

accused No.4, but not within the knowledge of the

decision taking authority, which was to accept the

recommendations. Therefore, in the absence of any

material on record that the authority, which was to

Crl.RP 195/11 C/w.

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accept the recommendations had the knowledge that the

price of the land was Rs.3 lakhs per acre and was agreed

to be sold at Rs.6.5 lakhs per acre, the authority which

took the decision cannot be blamed. So, when accused

Nos.1 to 3, who had knowledge of the actual price of the

land had recommended to purchase the land of accused No.4

alone. Prima facie, the said accused can be held

responsible and this much of material on record is

sufficient to proceed against the accused.

12. So far as accused No.5 is concerned, though he

is a Practicing Advocate and submitted his report

relating to title of the land offered by accused No.4, it

was he who was called upon to get the land value assessed

by the Government valuers. Though the said valuers whose

statements have been recorded by the Investigating Agency

stated that the value of the land was assessed at Rs.7

lakhs per acre, they have made a statement before the

Investigating Agency stating that the value of the land

was assessed at Rs.7 lakhs per acre, as accused No.5

insisted them to assess the price of the land at Rs.7

lakhs per acre. Though the statement of these witnesses

is contrary to the report submitted by them, what weight

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

24

is to be attributed is a matter, which will have to be

considered only after recording their evidence. So,

prima facie looking to the statements of the said

witnesses, which is available in the records, there is

also material against accused No.5 for the aforesaid

offence.

13. Finally, the learned counsel relied upon the

decisions reported in (2009)8 Supreme Court Cases 617:

[State of Madhya Pradesh Vs. Sheetla Sahai and others];

wherein it has been held;

“55. This leaves us with the question

as to whether an order of sanction was

required to be obtained. There exists a

distinction between a sanction for

prosecution under Section 19 of the Act

and Section 197 of the Code of Criminal

Procedure. Whereas in terms of Section

19, it would not be necessary to obtain

sanction in respect of those who had

ceased to be a public servant, Section 197

of the Code of Criminal Procedure requires

sanction both for those who were or are

public servants.

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

25

56. The sanction does not extend its

protective cover to every act or omission

done by a public servant in service but

restricts its scope of operation to only

those acts or omissions which are done by

a public servant in discharge of official

duty.

59. There must be a reasonable

connection between the act and the

official duty. It does not matter even if

the act exceeds what is strictly necessary

for the discharge of the duty, as this

question will arise only at a later stage

when the trial proceeds on the merits.”

He also relied upon the unreported decision in Crl.P.

Nos.4707/2011 C/w. 4850/2011 [H.D.Kumaraswamy & anor. Vs.

M.Vinod Kumar], dated 21.10.2011 of this Court; wherein a

portion of the Judgment of the Apex Court was referred

to, and it is extracted hereunder:

“41. The Apex Court further held

that, it was therefore clear from the

charge that the act alleged is directly and

reasonably connected with his official duty

as a Minister and therefore would attract

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

26

the protection of Section 197(1) of the

Code.”

Placing reliance on these decisions, it is the contention

of the learned counsel that the Investigating Agency has

not obtained the sanction under Section 197 Cr.P.C. and

therefore, he claims that the prosecution of he

petitioners itself is illegal. To advert to the said

contentions, it is relevant to note that the material

placed at this stage prima facie is insufficient to hold

that accused Nos.1 to 3 did the act in discharge of their

official duty and when there is prima facie material on

record that the said accused agreed to purchase the land

at Rs.6.5 lakhs per acre though prima facie its market

value was not exceeding Rs.3 lakhs per acre, at this

stage it cannot be said that the duty discharged by

accused Nos.1 to 3 falls within the purview of Section

197 of the Code. It is relevant to refer to the portion

of the Judgment of the Apex Court referred to supra in

Sheetla Sahai case and the said portion is extracted

herein;

“56. The sanction does not extend its

protective cover to every act or omission

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

27

done by a public servant in service but

restricts its scope of operation to only

those acts or omissions which are done by a

public servant in discharge of official

duty.”

“59. There must be a reasonable

connection between the act and the official

duty. It does not matter even if the act

exceeds what is strictly necessary for the

discharge of the duty, as this question

will arise only at a later stage when the

trial proceeds on the merits.”

So, the question as to whether Section 197 Cr.P.C. is

applicable or not to the accused Nos.1 to 3 may also be

taken into consideration at the later stage, but at this

stage, the aforesaid material in my opinion is sufficient

to hold that the duty of accused Nos.1 to 3 in

recommending the price of the land at Rs.6.5 lakhs per

acre prima facie shows that it is not in discharge of

their official duty and a prima facie case from offence

under Section 420 IPC is also made out. Hence the said

contention also cannot be accepted. Though numerous

other contentions have been put-forth by the petitioners,

the prima facie fact that the property worth Rs.3 lakhs

Crl.RP 195/11 C/w.

Crl.Ps 6475/09, 4402/10, Crl.RPs 634, 474 & 761/11

28

per acre has been sold at Rs.6.5 lakhs per acre itself

would be sufficient to hold that there is a prima facie

case to frame charge/s against the petitioners for the

offence punishable under Sections 120-B r/w. 420 IPC and

under Section 13(2) r/w. 13(1)(d) of the P.C. Act.

14. The trial Court after elaborate consideration

of the material placed on record has come to a right

conclusion in rejecting the plea of the petitioners. In

that view of the matter, as there is sufficient material

against the petitioners for the aforesaid offences, I do

not find any necessity to interfere with the Orders of

the Courts below:

In the result, the petitions and the revision

petitions are dismissed.

Sd/-

JUDGE.

Ksm*

crl.rp 195-11 & conn. -...

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