GANGARAMEGOWDA v. STATE OF KARNATAKA

Heard Sri Parameshwar N. Hegde, learned counsel for the petitioners and Sri B Lethif, learned counsel for respondent No.1. Perused the materials on record.

Learned counsel for the petitioners contended that, petitioner No.1 is the DDPI and petitioner No.2 is the BEO of Ramanagara. They granted a Certificate dated 17.05.2017 to open a school from I to V Standard. The only allegation made against these petitioners is that, such Certificate issued permitting opening of the school is in violation of the Government notification dated 11.11.2014. As per Notification dated 11.11.2014, to open the school for class I to V and VI to X, within the limits of BBMP or other City Corporations, minimum 1 acre of converted land is to be standing in the name of the Management, or such land is to be obtained on lease for a period of 30 years.

Learned counsel contends that there is a 3 Member Committee consisting of the Head Master, the Senior Lecturer and the BEO which considered the applications submitted for running the school and satisfied themselves about the infrastructures that are provided for running the school. Of - 4 - NC: 2026:KHC:5740 CRL.P No. 894 of 2022 HC-KAR course, there is a reference that 1 acre land to run the school was obtained on lease and an application was filed seeking conversion of the same. The said application was forwarded by the Tahsildar, Kanakapura Taluk, to the Deputy Commissioner, Ramanagara as per his Letter dated 27.04.2017. However, final order converting the land was not passed by the Deputy Commissioner. It was assured by the applicant that such conversion will be obtained before commencement of the Academic year 2017-18 and undertook to abide by any of the order that may be passed in that regard.

Learned counsel for the petitioners has drawn the attention of the Court to the Certificate No.8/2017-18 dated

17.05.2017, according to which, the applicant was permitted to run the school subject to certain conditions. One such condition is at Sl.No.27, where there is reference to the Notification dated 11.11.2014 issued by the State Government and the amended Notification issued thereafter requiring the school to provide necessary infrastructures, and other conditions and mandating the school management to comply with the same mandatorily. According to the learned counsel for the petitioners, a specific condition is imposed in the Certificate - 5 - NC: 2026:KHC:5740 CRL.P No. 894 of 2022 HC-KAR that only after being satisfied with compliance of the conditions pursuant to the Notification dated 11.11.2014, necessary permission and recognition will be issued to run the school. When such a specific condition is imposed in the Certificate, it cannot be said that the petitioners have committed any offence that too punishable under Section 13(1)(c) of the P.C. Act.

Learned counsel also submits that the certificate in question dated 17.05.2017 was issued pursuant to the recommendation by the Three Member Committee after visiting the spot on 02.05.2017. Under such circumstances, according to him, Section 13(1)(c) of P.C. Act will not have any application. Hence, he prays for quashing the criminal proceedings.

Per contra, learned counsel for respondent No.1, opposing the petition submitted that, as per the Notification dated 11.11.2014, 1 acre of converted land is to be standing in the name of the managing committee or such converted land is to be taken on lease for a period of 30 years before commencing the school. In the present case, the complaint was filed by respondent No.2 on 23.07.2020. Even though it is - 6 - NC: 2026:KHC:5740 CRL.P No. 894 of 2022 HC-KAR stated that a Certificate was issued on 17.05.2017 by the Three Member Committee referred to by the petitioners, it does not bear any date. The authenticity of the same will have to be considered. He submitted that, the school must be running without there being the compliance of the Notification. Under such circumstances, a detailed investigation will have to be undertaken by the Lokayukta police. Since there is stay granted by this Court, except registration of the FIR, no further investigation was undertaken. Hence, he prays for dismissal of the petition.

In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is: "Whether the petitioners have made out any grounds to allow the petition and to quash the criminal proceedings initiated against them?" My answer to the above point is 'negative' for the following: - 7 - NC: 2026:KHC:5740 CRL.P No. 894 of 2022 HC-KAR

The admitted facts are that, the petitioners were REASONS working as DDPI and BEO at Ramanagara. An application was submitted seeking issuance of license to run Shreyas Public School. Admittedly, license was issued by the petitioners to run public school, subject to the requirements of conditions that were mentioned in the Notification dated 11.11.2014.

The informant alleged that the petitioners being the public servants have issued the license without compliance of the requirements of the notification dated 11.11.2014 and he suspects commission of the offence under Section 13 (1)(c) of the PC Act. On the basis of the same FIR was registered. Immediately after registration of FIR, petitioners have approached this Court and by an interim order, investigation was stayed in the year 2022. As a result, petitioners have already retired from their service when the matter is heard before this Court.

It is to be noticed that respondent No.2 has filed the first information on 23.07.2020. The FIR came to be registered on 03.12.2021. Admittedly, an order in the form of - 8 - NC: 2026:KHC:5740 CRL.P No. 894 of 2022 HC-KAR approval was obtained by the Investigating Officer as required under Section 17A of the PC Act on 20.07.2021. Therefore, it is clear that the Investigating Officer has not mechanically registered the FIR immediately after is received on

20.07.2021. The under Secretary to the Government has issued the approval under Section 17A permitting the Investigating Officer to register the FIR and investigate into the matter. There was application of mind and preliminary enquiry must have been held before obtaining the approval under Section 17A of the PC Act.

The notification dated 11.11.2014 lists out the conditions to be satisfied before issuance of license. One of the condition is that a minimum 1 acre of land shall stand in the name of the management or atleast the management should have obtained the same on lease atleast for a period of 30 years, and land should be a converted land. This is the condition precedent for issuance of license.

Admittedly, the management which applied for license was neither the owner of 1 acre of land nor it has obtained the lease of a converted land. But according to the - 9 - NC: 2026:KHC:5740 CRL.P No. 894 of 2022 HC-KAR petitioners, the owner had applied for the conversion of the land to the District Commissioner.

Now it is stated that the Deputy Commissioner concerned had passed an order converting the land in question only vide order dated 28.06.2022. But the school was being run from the academic year 2018-19. Now the question arises as to why the petitioners were in a hurry to issue the license giving a go by to the specific conditions mentioned in the notification dated 11.11.2014. That exactly is the question that was raised by respondent No.2 alleging commission of the offence against the petitioners. From these facts and circumstances, reasonable doubt will arise in the mind of the Court as to why the petitioner were in such a hurry to ignore the conditions that were mentioned in the notification dated 11.11.2014 and also corrigendum issued thereafter.

Learned counsel for the petitioners referring to Section 13 (1)(c) of the PC Act contends that no prima facie materials are placed to contend that the petitioners were either dishonest or they were fraudulent or they have misappropriated - 10 - NC: 2026:KHC:5740 CRL.P No. 894 of 2022 HC-KAR or they have otherwise converted for own use any property that was entrusted to them.

According to the learned counsel for the petitioners, there was no entrustment of any property nor there was any dishonest or fraudulent intentions of misappropriating the same or converting into their advantage. Under such circumstances, Section 13 (1)(c) cannot be made applicable.

The fact remains that, the matter is still at the stage of registration of FIR. Prima facie, the notification dated

11.11.2014 is violated by the petitioners. When the allegations made in the first information is taken into consideration in the light of the blatant violation of the conditions under the notification dated 11.11.2014, there may be possibility that the petitioners might have used their authority to issue the license bypassing satisfaction of the conditions in the notification for some gain. There may be dishonest or fraudulent intention for violating the conditions which cannot be ruled out when there are prima-facie materials for violating the conditions in the notification dated 11.11.2014. The same is to be scrutinized under a lens by investigating into the matter. If after full- - 11 - NC: 2026:KHC:5740 CRL.P No. 894 of 2022 HC-KAR fledged investigation, the prosecution could not get any material to attract Section 13(1)(c) of the PC Act, naturally, the Investigating Officer will file the final report. But this is not the stage to contend that there are no prima-facie materials to attract Section 13(1)(c). Suffice for me to say at this stage that, the violation of the specific conditions mentioned in the notification dated 11.11.2014 give raise to a reasonable doubt. The procedure adopted by the Investigating Officer in not registering the FIR immediately after receipt of first information but holding the preliminary enquiry and getting the approval from the under Secretary, Government of Karnataka as required under Section 17A makes out strong prima-facie case to go for investigation. Unless a detailed investigation is undertaken, it is premature to give a clean chit to the petitioners by quashing the criminal proceedings. Under these circumstances, I am of the opinion that the petitioners are not entitled for any relief in this petition.

Learned counsel for the petitioners placed reliance on the decision of the Hon'ble Apex Court in C.Chenga Reddy - 12 - NC: 2026:KHC:5740 CRL.P No. 894 of 2022 HC-KAR and others Vs. State of A.P.1 to contend that mere disregard of relevant conditions in the notifications will not automatically invoke Section 13(1)(c). The Hon'ble Apex Court has considered an appeal that was preferred against the conviction recorded by the Trial Court which was confirmed by the High Court. Therefore, it was after full-fledged trial when all the relevant documents that were placed before the Trial Court, the Hon'ble Apex Court has formed such an opinion.

Learned counsel for the petitioner has also placed reliance on the decisions of the Hon'ble Apex Court in R.Sai Bharathi Vs. J.Jayalalitha and others2 where a finding is recorded on facts that, materials on record do not satisfy the requirements of Section 13(1)(c) of the PC Act. It is a case where the investigation was undertaken and the final report came to be filed. The Hon'ble Apex Court had the benefit of going through the materials that are collected by the Investigating Officer to form such an opinion. But in the present case, we are at the preliminary stage of registration of FIR. No investigation worth mentioning is undertaken by 1 1996 10 SCC 193 2 (2004) 2 SCC 9 - 13 - NC: 2026:KHC:5740 CRL.P No. 894 of 2022 HC-KAR Investigating Officer when the interim order of stay was granted by this Court. Under such circumstances, both these decisions are not applicable to the facts of the case in hand.