Andhra Pradesh High Court - Amravati
The Challenge In This Criminal Revision ... vs Unknown on 31 December, 2019
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Revision Case No.469 of 2019
ORDER:
The challenge in this criminal revision case at the instance of the petitioner/accused officer in Crl.M.P.No.945 of 2017 in C.C.No.17 of 2017 is to the order dated 20.03.2019 passed by the learned Special Judge for Trial of SPE & ACB Cases, Kurnool dismissing the petition filed by the petitioner/accused officer under Section 239 Cr.P.C. for discharging him from the said case.
2. Shorn of the unnecessary details, the petitioner/accused was working as Assistant Engineer, A.P State Housing Corporation Limited, Atmakur Mandal, Anantapur District. The ACB on the allegation that he acquired assets worth Rs.58,49,043/- disproportionate to his known source of income, registered a case in Cr.No.5/RCA-ATP/2008 under Section 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 (for short "the PC Act"). On completion of investigation, a final report was submitted to DG, ACB, who in turn applied for sanction to prosecute the petitioner/accused under Section 19 of the PC Act. The Government have, at the first instance refused to accord sanction and decided to refer the case of the petitioner/accused to the departmental enquiry. Again, the ACB requested the Government twice for according sanction instead of 2 referring the petitioner/accused to departmental enquiry, but, however, the Government adhered to its earlier stand and directed the DG, ACB to submit draft articles of charges to proceed with departmental enquiry and the DG, ACB obliged. Thereupon the Government have appointed Sri V.Chandrasekhar Reddy, Executive Engineer, APSHCL, Head Office, Hyderabad as Enquiry Officer to conduct enquiry against the petitioner/accused and the said Enquiry Officer issued notices to the petitioner/accused to attend before him and accordingly he appeared and submitted his written statement of defence on 05.06.2013.
(b) Subsequently, the DG, ACB again approached the competent authority viz., Sri K.V.Raman, Managing Director, APSHCL and at that time, ACB was successful in obtaining sanction order from the competent authority to prosecute the petitioner/accused vide proceedings No.4729/APSHCL/VIG(3)/ATP/2008 dated 13.12.2011. The sanction order was issued on 16.03.2017 basing on which charge sheet was filed.
(c) The petitioner/accused then filed Crl.M.P.No.945 of 2017 under Section 239 Cr.P.C. for discharge before the trial Court. His contention was that the Government after considering the material, declined to issue sanction and rather decided to refer the case of the petitioner/accused to the departmental enquiry by order dated 3 04.02.2010 and thereafter also twice, the Government refused to consider the request of DG, ACB to accord sanction and clung to its earlier decision. However, the Government have, without any legal authority reviewed its own decision and without there being any extra material accorded sanction on 16.03.2017, which per se is illegal and against the principles of natural justice. He thus, sought to discharge him. The respondent/ACB vehemently opposed the said petition.
(d) The trial Court by referring certain events that took place prior to the issuance of sanction order dated 16.03.2017 dismissed the said application. Learned Judge of the trial Court observed that when the respondent/ACB filed a final report before the trial Court for closure of FIR for want of sanction, his predecessor has passed an order dated 08.12.2014 observing that investigation agency collected satisfactory evidence against the petitioner/accused, but the sanctioning authority did not apply its mind properly and therefore, closure of the case basing on such memos was impermissible and therefore, the investigating agency was directed to approach the Government again to reconsider its opinion and take a different opinion and on such approach by ACB the sanctioning authority may take its independent opinion keeping in view the purport of Section 19 of the PC Act. He therefore did not close the FIR. The trial Judge further observed that in view of the order of his predecessor, the ACB 4 approached the competent authority and obtained sanction order and then filed charge sheet on 08.05.2017, which was taken cognizance by his predecessor on 29.05.2017. The trial Judge observed that now he cannot take a different stand and hold that the sanction order issued by the competent authority is arbitrary and illegal as he cannot review the earlier order dated 08.12.2014 of his predecessor who directed the respondent ACB to approach the Government and obtain sanction. On the aforesaid observations, learned trial Judge dismissed the petition.
Hence, the Criminal Revision Case.
3. Severely fulminating the impugned order, Sri O.Manohar Reddy, learned counsel for petitioner would argue that when once the Government who is the competent authority, thrice refused the sanction, the then Presiding Officer of the trial Court, have had no jurisdiction to direct the Government to reconsider its opinion and accord sanction on the ground that the material collected and placed before him by the Investigating Agency disclosed case against the petitioner/accused. Such an order dated 08.12.2014 passed by the then learned Judge, besides usurping jurisdiction not vested in him, is also devoid of principles of natural justice since the petitioner/accused was not put to prior notice before passing the said order. Hence, his successor in office ought not to have dismissed the discharge 5 application on the sole ground that his predecessor has already opined that there was material in the case and took cognizance and hence, he cannot take different stand by reviewing the earlier order. Learned counsel would strenuously argue that finding prima facie material to take cognizance by the Court is altogether different from examining the legality and validity of sanction issued by a competent authority. Even if there is sufficient material to take cognizance, he would point out, if the sanction order, which is sine qua non for taking cognizance, suffers from severe legal infirmities, the Court can refuse to take cognizance or if had already taken cognizance, can discharge the accused. Since the accused prayed in Crl.M.P.No.945 of 2017 to discharge him on the ground that sanction was accorded without there being fresh material on record, the trial Court ought to have examined the said issue not being influenced by its earlier taking cognizance of the case. He placed reliance on State of Himachal Pradesh v. Nishant Sareen1 and K.Madhu Murthy v. National Institute of Technology, Warangal, Andhra Pradesh2 to argue that the sanctioning authority though has power to review its earlier decision to refuse sanction, shall not accord sanction without there being fresh material warranting sanction.
1 2011 (2) ALD (Crl.) 895 (SC) 2 2016 (2) ALD (Crl.) 762 6
4. Refuting the above contentions, learned Special Public Prosecutor for ACB would argue that review power is vested in the sanctioning authority to reconsider its earlier view and exercising such power, the competent authority on perusal of the entire material on record accorded sanction and therefore, the said order cannot be found fault. It is further argued that on earlier occasions the competent authority only ordered for referring the case of petitioner/accused to the disciplinary authority from which it cannot be inferred that the sanction for prosecution was refused. He placed reliance on K.Rama Krishna Raju v. Government of Andhra Pradesh3. He thus prayed to dismiss the criminal revision case.
5. As can be seen from the impugned order, the petition was dismissed on the main observations that the predecessor in office found satisfactory material to make out case against the accused and the sanctioning authority without applying its mind properly refused to accord sanction and therefore, ACB has to again approach the sanctioning authority to reconsider its opinion; in which case the sanctioning authority may take its independent opinion. On such order dated 08.12.2014 of his predecessor, the ACB again approached the competent authority and successfully obtained sanction order basing on which cognizance was taken by his predecessor and 3 2012 (2) ALD 425 7 therefore, the present Presiding Officer cannot review the earlier order of the Court and hold that the sanction order as arbitrary or illegal. Precisely on the aforesaid observations, the trial Court dismissed the discharge petition.
6. In this backdrop, the following points would emerge for consideration in this Criminal revision case:
(i) Whether a Court can direct the sanctioning authority which on earlier occasion(s) refused sanction, to accord sanction?
(ii) Whether the sanctioning authority can review its earlier opinion of rejecting sanction and accord sanction? if so, on what parameters?
(iii) Whether the sanction accorded by the competent authority to prosecute the petitioner/accused is factually and legally valid?
7. Point No.1: Section 19 of the PC Act deals with the requirement of previous sanction for prosecution of a public servant for the offences committed under the said Act. Hence, it is expedient to extract Section 19:
19. Previous sanction necessary for prosecution-- (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,--
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;8
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation.--For the purposes of this section,--
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
9The above section which commences with a negative connotation, ordains:
(i) A Court shall not take cognizance of offences punishable under Sections 7, 10, 11, 13 & 15 against a public servant.
(ii) Except with the previous sanction granted by competent authority.
According sanction is a statutory function discharged by the competent authority. A sanction is a weapon to ensure discouragement of frivolous and vexatious prosecutions and is a safeguard for the innocent but not a shield for the guilty. (Mansukhlal Vithaldas Chauhan v. State of Gujarat4). A sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise, but a solemn and sacrosanct act which affords protection to Government servant against frivolous prosecutions. [Mohd. Iqbal Ahmed v. State of A.P. (AIR 1979 SC 677)]. . Thus, previous sanction is sine qua non for taking cognizance of the offence. The validity of the sanction depends upon the material placed before the sanctioning authority and consideration thereof by the said authority. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it [State of Bihar v. P.P.Sharma (1991 Cri.l.J 4 AIR 1997 SC 3400 = MANU/SC/1303/1997 10 1438(SC) = MANU/SC/0542/1992)]. An order granting or refusing sanction must be preceded by application of mind on the part of the appropriate authority, on the material placed before it.
The above is the jurisprudence on sanction accorded by the competent authority.
8. Be that it may, the question is when a competent authority after considering the material placed before it refused to grant sanction, whether a Court can direct the said authority to accord sanction. This point is no more res integra. In Mansukhlal Vithaldas Chauhan's case (supra 4), the Apex Court dealt with the question whether the High Court could issue mandamus against a competent authority to accord sanction for prosecution. It was held thus:
"19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the 11 discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.
32. By issuing a direction to the Secretary to grant sanction, the High Court closed all other alternatives to the Secretary and compelled him to proceed only in one direction and to act only in one way, namely, to sanction the prosecution of the appellant. The Secretary was not allowed to consider whether it would be feasible to prosecute the appellant; whether the complaint of Harshadrai of illegal gratification which was sought to be supported by "trap"
was false and whether the prosecution would be vexatious particularly as it was in the knowledge of the Govt. that the firm had been black-listed once and there was demand for some amount to be paid to Govt. by the firm in connection with this contract. The discretion not to sanction the prosecution was thus taken away by the High Court.
33. The High Court put the Secretary in a piquant situation. While the Act gave him the discretion to sanction or not to sanction the prosecution of the appellant, the judgment gave him no choice except to sanction the prosecution as any other decision would have exposed him to an action in contempt for not obeying the mandamus issued by the High Court. The High Court assumed the role of the sanctioning authority, considered the whole matter, formed an opinion that it was a fit case in which sanction should be granted and because it itself could not grant sanction under Section 6 of the Act, it directed the Secretary to sanction the prosecution so that the sanction order may be treated to be an order passed by the Secretary and not that of the High Court. This is a classic case where a Branch name is changed to give a new colour to the package without changing the contents thereof. In these circumstances, the sanction order cannot but be held to be wholly erroneous having been passed mechanically at the instance of the High Court."
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9. The Apex Court thus opined that the sanction order shall be insulated from all other extraneous forces including that of the direction from a Court of law.
10. In the light of above jurisprudential jurimetrix, it has now to be seen whether in the case on hand the then Presiding Officer of the trial Court in his order dated 08.12.2014 had given a direction to the competent authority to accord sanction. The said order was extracted in the impugned order in Crl.M.P.No.945 of 2017. It reads thus:
"That the Government order in memo dated 12-4-2010 does not contain any ground to take different view that that of investigating agency. The provision u/Sec. 19 of Prevention of Corruption Act intended to avoid frivolous or unnecessary prosecutions but it should not be used as a shield to support corrupt officials but to save honest officials. The final report shows that, investigation agency collected satisfactory evidence to make out the case against the accused in the court but, it seems the sanctioning authority not apply its mind properly, therefore, closure of the case basing on such memos is not permissible, hence, the investigation agency is directed to approach the Government again to consider its opinion since doors are not completely closed to take a different opinion and on such approach by ACB, the sanctioning authority may take its independent opinion keeping in view of purport of Section 19 of Prevention of Corruption Act, hence, the F.I.R. is not closed."
In the above order, it must be confirmatively said, learned Judge after observing that the sanctioning authority earlier has not applied its mind properly directed the investigating agency 13 to once again approach the Government and on such approach by ACB, the sanctioning authority may take its independent opinion in the light of Section 19 of the PC Act. The clause "may take its independent opinion" obviously tells us that the Presiding Officer has neither directed nor even insinuatingly persuaded the Government to accord sanction, but only indicated that the Government may take its independent decision. This order by no means can be regarded as imposition on the part of the Court on the sanctioning authority to influence it in the direction of inevitable granting of sanction. So, the ratio in Mansukhlal Vithaldas Chauhan's case (supra
4) do not apply here in my considered view.
11. Point No.2: It should be noted that though the act of according sanction is sacrosanct, there is no inscrutable rule that the sanctioning authority cannot review its earlier decision of refusal to accord sanction. However, the only parameter for such reconsideration is that there must be fresh material placed before it by the investigating agency which is formidable one to revisit its earlier decision and consider in a different way.
In State of Punjab v. Mohammed Iqbal Bhatti (MANU/SC/1352/2009 = (2009) 17 SCC 92], the Apex Court observed thus:
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7. Although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the same, however, would not mean that power once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the concerned authority is imperative. The legality and/or validity of the order granting sanction would be subject to review by the criminal courts. An order refusing to grant sanction may attract judicial review by the Superior Courts. Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidences must be considered by it. The sanctioning authority must apply its mind on such material facts and evidences collected during the investigation."
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23. The High Court in its judgment has clearly held, upon perusing the entire records, that no fresh material was produced.
There is also nothing to show as to why reconsideration became necessary. On what premise such a procedure was adopted is not known. Application of mind is also absent to show the necessity for reconsideration or review of the earlier order on the basis of the materials placed before the sanctioning authority or otherwise." Similar view was expressed in State of Himachal Pradesh v. Nishant Sareen's case (supra 1).
12. It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow 15 that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course." Thus, the law has pellucidly stated that the earlier order can be reviewed by the sanctioning authority on availability of fresh material. This point is answered accordingly.
12. Point No.3: The petitioner/accused challenges the sanction order on the ground that there was no fresh material to reconsider its earlier view. It must be noted that the trial Court dismissed the petition on the sole ground that the predecessor in office has already opined that there was enough material to take cognizance and directed ACB to obtain sanction which it obliged and produced the sanction 16 order and thereby cognizance was already taken and therefore, now he cannot come to a different opinion. I am unable to appreciate this reason to dismiss the application. As rightly argued by the learned counsel for petitioner, the bone of contention in the discharge application was the legality and validity of the sanction order. It was challenged on the main ground of lack of fresh material. Therefore, taking cognizance of the case by the Court is not a ground to refrain from considering the validity of the sanction order. Unfortunately, the trial Court, has not vent its opinion as to availability or non- availability of the fresh material effecting the validity of sanction order. Therefore, this Court is deprived of the finding of the trial Court in that regard. In that view of the matter, there is no other way, except setting aside the impugned order and remanding the matter to the trial Court for its finding on the legality and validity of the sanction order.
13. In the result, this Criminal Revision Case is allowed and the impugned order in Crl.M.P.No.945 of 2017 is set aside and the matter is remanded to the trial Court to hear both parties and pass an appropriate order on merits in accordance with law in the light of contentions put forth by the petitioner/accused regarding the legality and validity of the sanction order.
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As a sequel, Interlocutory Applications pending if any, shall stand closed.
_______________________ U. DURGA PRASAD RAO 31.12.2019 PVD/MVA