Karnataka High Court
Dr. Chandrashekar.M.P vs The State By Karnataka Lokayukta Police on 6 October, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06THDAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.12873 OF 2023 (GM-RES)
BETWEEN:
DR.CHANDRASHEKAR.M.P.,
S/O.PUTTAMADAIAH
AGED ABOUT 59 YEARS 4 MONTHS
WORKING AS CHIEF VETERINARY OFFICER
POULTRY BREEDING AND TRAINING CENTRE
MALAVALLI, MANDYA DISTRICT - 571 430.
... PETITIONER
(BY SRI PRITHVEESH M.K., ADVOCATE)
AND:
1 . THE STATE BY
KARNATAKA LOKAYUKTA POLICE
REPRESENTED BY
THE INSPECTOR OF POLICE
MANDYA DISTRICT
MANDYA - 571 401.
2 . SRI GURUSWAMY
S/O. LATE KUNNAIAH
AGED MAJOR
RESIDING AT
HOSAHALLIVILLAGE
B.G. PURA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT - 571417.
2
3 . THE STATE OF KARNATAKA
DEPARTMENT OF
ANIMAL HUSBANDRY AND FISHERIES,
REPRESENTED BY ITS
PRINCIPAL SECRETARY
VIKASA SOUDHA
BENGALURU - 560001.
... RESPONDENTS
(BY SRI B.B.PATIL, SPL.PP FOR R-1;
SMT.K.P.YASHODHA, HCGP FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482
OF CR.P.C., PRAYING TO CALL FOR RECORDS IN SPL C
NO.54/2019 PENDING ON THE FILE OF THE HONBLE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, MANDYA; QUASHING (A) THE
IMPUGNED CHARGE SHEET DATED 25/01/2019 FILED BY THE
R1-POLICE AGAINST THE PETITIONER FOR THE ALLEGED
OFFENCE PUNISHABLE UNDER SECTION 7(A) OF THE
PREVENTION OF CORRUPTION ACT, 1988 (ANNEXURE-A) AND
(B) ALL PROCEEDINGS AGAINST THE PETITIONER IN SPL C NO
54/2019 PENDING ON THE FILE OF THE HONBLE PRINCIPAL,
DISTRICT AND SESSIONS JUDGE, MANDYA (ANNEXURE -B).
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON26.07.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
3
ORDER
The petitioner/Accused is before this Court calling in question proceedings in Special Case No.54 of 2019 pending before the Principal District and Sessions Judge, Mandya arising out of Crime No.1 of 2018 registered for offences punishable under Section 7(a) of the Prevention of Corruption Act, 1988 ('the Act' for short).
2. Facts, in brief, germane are as follows:-
The petitioner, at the relevant point in time, was working as Assistant Director at the Regional Poultry Breeding and Training Center, Malavalli, Mandya District. A complaint comes to be registered by the 2nd respondent before the then Anti Corruption Bureau ('ACB' for short) alleging that the petitioner for assessing of the cow belonging to the complainant for him to apply for a Bank loan had demanded `5,000/- for valuation of the cow as illegal gratification. Based on the said complaint a crime comes to be registered against the petitioner in Crime No.1 of 2018 for offences punishable under Section 7 of the Act.
A trap was sought to be conducted against the petitioner, at which point in time, the complainant offers a sum of `5,000/- to 4 the petitioner which was accepted by the petitioner pursuant to which he was taken in to custody on the spot and later enlarged on bail. The ACB conducts and completes the investigation and communicates to the 3rd respondent seeking sanction to prosecute the petitioner for offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the Act. On 01-12-2018 the 3rd respondent accords sanction to prosecute the petitioner in terms of Section 19(1)(b) of the Act. Based upon the sanction so accorded, a charge sheet comes to be filed by the ACB on 31-01- 2019 only for the offence punishable under Section 7(a) of the Act. The concerned Court, without passing an order on taking of cognizance, directs the matter to be listed for hearing before charge. It is calling in question the said order directing the matter to be listed for hearing before charge, the petitioner is before this Court in the subject petition.
3. Heard Sri M.K. Prithveesh, learned counsel appearing for the petitioner, Sri B.B. Patil, learned Special Public Prosecutor appearing for respondent No.1 and Smt. K.P. Yashodha, learned High Court Government Pleader appearing for respondent No.3.
54. The learned counsel appearing for the petitioner would contend that illegality galore in the case at hand. He would raise the contentions that the incident is on 24-01-2018; sanction is sought on 4-10-2018; the Act in the interregnum had been amended by incorporating Section 7(a); charge sheet filed under Section 7(a) for an incident that has taken place prior to the amendment. It is his contention that the petitioner is sought to be tried on a post-facto law and as such it is hit by Article 20(1) of the Constitution of India. It is his next contention that sanction is accorded by an incompetent Authority. According to the learned counsel, the 3rd respondent did not have the power to grant sanction. He is the Principal Secretary in the Department of Animal Husbandry & Fisheries. The petitioner being a Group-A officer, it is only the State Government that is empowered to grant sanction, as it is only the State Government which can remove the petitioner from service. It is, therefore, his contention that grant of sanction by an incompetent Authority would cut at the root of the matter and, therefore, the entire proceedings are vitiated. He would further contend that the concerned Court has grossly erred in procedure as the matter is directed to be posted for hearing before charge without even an 6 order of taking cognizance against the petitioner. Therefore, it suffers from non-application of mind. On these grounds, the petitioner seeks to contend that the impugned proceedings be quashed.
5. On the other hand, the learned Special Public Prosecutor representing the 1st respondent would seek to contend that the ACB has filed the charge sheet after investigation which is only after sanction being granted by the competent Authority.
Admittedly sanction is granted by the 3rd respondent who is the Disciplinary Authority of the petitioner. The State Government may be the Authority to remove the petitioner from service, but the 3rd respondent is the one who is empowered to impose any penalty under the Rules and as such, he becomes the Competent Authority. Insofar as the contention that the petitioner is being tried on a post-facto law, he would submit that it is a matter on record and he would have nothing to say as the facts are before this Court. He would submit that his submissions to the petition be treated as objections of the respondents, as he has already filed his objections in the companion petition and the legal issues canvassed insofar as the grant of sanction by an incompetent 7 Authority are common in both the petitions. He would seek dismissal of the petition.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. In furtherance whereof, the following issues arise for my consideration:
"(i) Whether the charge sheet filed against the petitioner under Section 7(a) of the Act is valid in the eye of law?
(ii) Whether sanction accorded by the 3rd respondent/ Principal Secretary in the Department of Animal Husbandry and Fisheries is in consonance with Section 19 of the Act?
(iii) Whether the concerned Court was right in directing the matter to be listed for hearing before charge without an order taking cognizance of offence?"
Issue No.1:
7. The incident takes place on 24-01-2018. The incident was of the petitioner accepting bribe/illegal gratification from the hands of the complainant which led to a trap laid by the ACB.
The investigation is complete and a requisition for sanction was made on 4-10-2018. The requisition for sanction is for the 8 offence punishable under Sections 7, 13(1)(d) read with 13(2) of the Act. In the interregnum comes an amendment to the Act.
The amendment comes about on 26-07-2018 by which Sections 7, 13(1)(d) and 13(2) of the Act stood amended and there was insertion of Section 7(a). Sanction, as observed hereinabove, was sought for the aforesaid offence. What the ACB would do on the said sanction is, it filed a charge sheet only for the offence under Section7(a) of the Act. Section 7(a) is a product of amendment on 26-07-2018. The incident happened long before the amendment on 24-01-2018 in terms of a law that has come into force on 26-07-2018. The offence that is alleged is a penal offence or creates offences for imposition of penalty. It is trite that provisions/statutes which either create offences or have the effect of imposition of penalty will only be prospective by virtue of Article 20 of the Constitution of India. If the language of the provision were to be clear that the amendment would become applicable to pending proceedings, it would have been an altogether different circumstance, which is not in the case at hand. Therefore, the amendment which comes about on 26-07-2018 to the Act is undoubtedly prospective and has no application to cases registered prior to the amendment, even if it 9 is pending at various stages of investigation, as also to the cases in which investigation is completed and are pending trial.
8. The case against the petitioner was set up for an incident that happens on 24-01-2018 and the charge sheet filed is for an offence that comes about after the amendment.
Therefore, the petitioner is now being tried on a post-facto law which is illegal and unsustainable, as Article 20 of the Constitution prohibits conviction of any person for any violation except on violation of law at the time of commission of an act charged as an offence. Article 20(1) of the Constitution reads as follows:
"20. Protection in respect of conviction for offences.--(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence."
Therefore, it is a case where the charge sheet filed under Section 7(a) is on the face of it defective as the charge sheet under the amended provision of law, for an incident that had taken place pre-amendment, is untenable. The issue is thus answered in favour of the petitioner.
10Issue No.2:
(ii) Whether sanction accorded by the 3rd respondent/ Principal Secretary in the Department of Animal Husbandry and Fisheries is in consonance with Section 19 of the Act?
9. Since the issue of sanction would cut at the root of the matter, I deem it appropriate to consider the said issue at the outset and then the case on its merits. The petitioner being a Group-A Officer is not in dispute. The petitioner getting embroiled in a crime in Crime No.1 of 2018 is a matter of record.
The reason why the petitioner has been roped into the said crime as an accused is as afore-narrated, which would not require any reiteration. The issue is, whether sanction has been accorded to prosecute the petitioner by the Competent Authority as required in law? Therefore, it becomes necessary to notice Section 19 of the Act which empowers the competent Authority to grant sanction to prosecute a public servant. Section 19 of the Act reads as follows:
"19. Previous sanction necessary for prosecution.--
(1) No court shall take cognizance of an offence punishable under Sections 7, 11, 13 and 15] alleged to have been committed by a public servant, except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013,--11
(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 and is not removable from his office save by or with the sanction of the Central Government, of that 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 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.
Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-section, unless--
(i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and
(ii) the court has not dismissed the complaint under Section 203 of the Code of Criminal Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding:
Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant:
Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt:
Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month:12
Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary.
Explanation.--For the purposes of sub-section (1), the expression "public servant" includes such person--
(a) who has ceased to hold the office during which the offence is alleged to have been committed; or
(b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.
(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.13
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."
Section 19 mandates that the Authority who is empowered to remove a Government Servant/Public Servant from employment is alone competent to grant sanction to prosecute the petitioner.
The petitioner is a Group-A officer and for a Group-A Officer the competent Authority is the Government through the Cabinet which is empowered to remove him from service. It is an admitted fact, in the case at handsanction is accorded by the Minister for Urban Development. Whether this would be in tune with law need not detain this Court for long or delve deep into the matter. This Court in B.SHIVASHANKAR v. STATE OF KARNATAKA1answering an identical issue has held as follows:
"(i) Whether sanction accorded by the incompetent Authority would vitiate the entire proceedings?
11. The petitioner is in the cadre of Chief Engineer. The State Government is the Competent Authority to remove the petitioner from service. Therefore, the State Government becomes the Competent Authority to grant sanction as contemplated under Section 19 of the Act. Section 19 of the Act reads as follows:
1Writ Petition No.43262 of 2017 decided on 17-02-2022 14 "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 save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014) --
(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;
(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;15
(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."
(Emphasis supplied) Section 19 mandates that no Court shall take cognizance of offence punishable under Sections 7, 10, 11, 13 and 15 unless sanction is accorded by the Competent Authority which is empowered to remove from office. Therefore, in terms of Section 19(1)(b) of the Act to prosecute the petitioner sanction has to be accorded by the State Government.
12. In terms of Article 162 of the Constitution of India, the orders and other instruments made and executed in the name of the Governor shall be 16 authenticated in a manner specified under the Karnataka Government (Transaction of Business) Rules, 1977 ('the Transaction of Business Rules' for short). Therefore, the consideration of Transaction of Business Rules in the case at hand becomes imperative. Rule 12 of the Transaction of Business Rules reads as follows:-
"12. There shall be a Committee of the Council of Ministers to be called the Cabinet which shall consist of the Cabinet Ministers except when the Council of Ministers meets on any occasion, all matters referred to in the First Schedule shall ordinarily be considered at a meeting of the Cabinet:-
Provided that,-
(i) When at a meeting of the Cabinet a subject with which any Minister of State not attached to a Cabinet Minister is considered the said Minister of State shall be entitled to attend the meeting at the time at which such subject is discussed and take part in the discussions; and
(ii) a Minister of State not attached to a Cabinet Minister shall be entitled to attend a meeting of the Cabinet at any time and take part in the discussions on any subject when requested to do so by the Chief Minister.
Provided further that a Minister of State attached to a Cabinet Minister or a Deputy Minister may attend a meeting of the Cabinet when requested to do so by the Chief Minister, either when a subject with which he is concerned is under discussion or otherwise."
In terms of Rule 12, the Authority competent to accord sanction to the cadre of the petitioner is the Government through its Cabinet. The purport of Rule 19 is also the same. Therefore, in the light of the aforesaid provisions, it is germane to notice whether sanction that is accorded in the case at hand is by the Competent Authority.
1713. It is an admitted fact that sanction has not been accorded by the Cabinet. The file with regard to sanction for prosecution of the petitioner was admittedly not placed before the Cabinet. Therefore, the violation is at the threshold where sanction is not accorded by the Competent Authority.
14. Following of Transaction of Business Rules is held to be of paramount importance by the Apex Court in the case of MRF LIMITED v. MANOHAR PARRIKARAND OTHERS(2010)11 SCC 374wherein the Apex Court holds as follows:--
"92. As observed by us earlier, these observations apply equally to the case on hand and in light of this view, we have no difficulty in holding that the Business Rules framed under the provisions of Article 166(3) of the Constitution are mandatory and must be strictly adhered to. Any decision by the Government in breach of these Rules will be a nullity in the eye of the law. It is in this legal background that the issues raised before us have to be dealt with."
Earlier to the said judgment the Apex Court in the case of COMMON CAUSE v. UNION OF INDIA AND OTHERS(1999)6 SCC 667while considering the matter of placing the file before the Cabinet has held as follows:
"18. The executive power of the Union is vested in the President under Article 53 of the Constitution. The extent of the executive power is indicated in Article 73. The next article, namely, Article 74 provides for a Council of Ministers to aid and advise the President. Article 75(3) speaks of the collective responsibility of the Cabinet which provides that the Cabinet shall be responsible to Parliament. Article 77 provides for the conduct of business of the Government of India and clause (3) thereof empowers the President to make rules for the convenient transaction of its business and for allocation amongst Ministers of the said business. It is in exercise of this power that rules for allocation of business have been framed under which various divisions of work to different Ministries have been indicated. Distribution of petroleum products, including petroleum outlets, is also one of the subjects which has been allocated to the Ministry of Petroleum.18
19. The functions of the Government are carried out in the name of the President by Ministers appointed by him on the advice of the Prime Minister. The Executive consists of:
(a) Prime Minister and Ministers who are members of the Cabinet;
(b) Ministers who are not of Cabinet rank;
(c) The Civil Service.
20. Since the functions of the Government are carried on by the Executive in the name of the President on the advice of Ministers, they (Ministers) alone are answerable to Parliament. The Civil Service as such has no constitutional personality or responsibility separate from the duly-constituted Government.
21. Articles 77(1) and (2) provide that whatever executive action is taken by the Government of India, the same shall be expressed to have been taken in the name of the President.
22. Executive power is not defined in the Constitution. Article 73 relating to the Union of India and Article 163 relating to the State deal primarily with the extent of executive power. In Rai Sahib Ram Jawaya Kapur v. State of Punjab [AIR 1955 SC 549 : (1955) 2 SCR 225] the then Chief Justice Mukherjea pointed out:
"It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away."
23. This judgment also deals with the concept of Cabinet, the Council of Ministers, its collective responsibility and how the Executive functions subject to the control of the legislature. It is laid down that although the President is the head of the Executive, he acts on the aid and advice of the Council of Ministers, headed by the Prime Minister, who are all members of the legislature and since the President has to act upon the advice of the Council of Ministers, the legislature indirectly controls the 19 functioning of the Executive. The relevant portions are extracted below:
"Our Constitution, though federal in its structure, is modelled on the British parliamentary system where the Executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State.
*** In India, as in England, the Executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature? Under Article 53(1) ..., the executive power of the Union is vested in the President but under Article 75 there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The President has thus been made a formal or constitutional head of the Executive and the real executive powers are vested in the Ministers or the Cabinet.
The same provisions obtain in regard to the Government of States; the Governor ... occupies the position of the head of the Executive in the State but it is virtually the Council of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the Council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, 'a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part'.
The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them."
24. .... .... ....
25. It was also pointed out in this case that the words "business of the Government of India"
20and "the business of the Government of the State", as used in Articles 77(3) and 166(3), include "all executive business". Seervai in his treatise Constitutional Law of India, Silver Jubilee Edn., Fourth Edn., on p. 2037 has, after a critical analysis of the judgment, extracted the following principles on the "business of the Government of India and allocation of business among Ministers":
"(i) The expressions 'business of the Government of India' and 'the business of the Government of the State' in Articles 77(3) and 166(3) include 'all executive business'.
(j) 'Where the Constitution required the satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor as the case may be ... the satisfaction required by the Constitution is not the personal satisfaction of the President or the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government. ... It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions....' Articles 77(3) and 166(3) provide that the President or the Governor shall make rules for the more convenient transaction of the business of Government and the allocation of functions among Ministers. Rules of business and the allocation of functions to Ministers indicate that the satisfaction of the Minister or the officer is the satisfaction of the President or the Governor.
(k) Rules of business and allocation of business among Ministers are relatable to Articles 53 and 154 which provide that executive power shall be exercised by the President and by the Governor either directly or through subordinate officers. The provisions made in Articles 74 and 163 for a Council of Ministers to aid and advise the 21 President and the Governor 'are sources of the rules of business'.
(l) Where the functions entrusted to a Minister are performed by an officer employed in the Minister's department, there is in law no delegation to that officer because the act or decision of the officer is that of the Minister: Halsbury, Vol. 1, 4th Edn., para
748."
26. In view of the discussion held above, it will be seen that though an order is issued in the name of the President, it does not become an order of the President passed by him personally, but remains, basically and essentially, the order of the Minister on whose advice the President had acted and passed that order. Moreover, as required by Article 77(1), all executive actions of the Government of India have to be expressed in the name of the President; but this would not make that order an order passed by the President personally. That being so, the order carries with it no immunity. Being essentially an order of the Government of India, passed in exercise of its executive functions, it would be amenable to judicial scrutiny and, therefore, can constitute a valid basis for exercise of power of judicial review by this Court. The authenticity, validity and correctness of such an order can be examined by this Court in spite of the order having been expressed in the name of the President. The immunity available to the President under Article 361 of the Constitution cannot be extended to the orders passed in the name of the President under Article 77(1) or Article 77(2) of the Constitution.
(Emphasis supplied) Since the file was never placed before the Cabinet, the initiation and the continuance of prosecution gets vitiated.
15. Insofar as the contention with regard to issue of sanction and that it can be urged at any point in time in a proceeding, as contended by the learned counsel for 22 the prosecution is again unacceptable in the light of the judgment rendered by the Apex Court in the case of NANJAPPA v. STATE OF KARNATAKA(2015)14 SCC 186 wherein the Apex Court has held as follows:
" 21. In B. Saha v. M.S. Kochar [(1979) 4 SCC 177 : 1979 SCC (Cri) 939] this Court was dealing with the need for a sanction under Section 197 CrPC and the stage at which the question regarding its validity could be raised. This Court held that the question of validity of an order of sanction under Section 197 CrPC could be raised and considered at any stage of proceedings. Reference may also be made to the decision of this Court in K. Kalimuthu v. State [(2005) 4 SCC 512 : 2005 SCC (Cri) 1291] where Pasayat, J. speaking for the Court, held that the question touching the need for a valid sanction under Section 197 CrPC need not be raised as soon as the complaint is lodged but can be agitated at any stage of the proceedings. The following observation in this connection is apposite: (SCC p. 521, para 15) "15. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. Further, in cases where offences under the Act are concerned, the effect of Section 197, dealing with question of prejudice has also to be noted."
22. The legal position regarding the importance of sanction under Section 19 of the Prevention of Corruption Act is thus much too clear to admit equivocation. The statute forbids taking of cognizance by the court against a public servant except with the previous sanction of an authority competent to grant such sanction in terms of clauses (a), (b) and (c) to Section 19(1). The question regarding validity of such sanction can be raised at any stage of the proceedings. The competence of the court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid the court can discharge the accused relegating the parties to a stage where the competent authority may 23 grant a fresh sanction for the prosecution in accordance with law. If the trial court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution.
24. In the case at hand, the Special Court not only entertained the contention urged on behalf of the accused about the invalidity of the order of sanction but found that the authority issuing the said order was incompetent to grant sanction. The trial court held that the authority who had issued the sanction was not competent to do so, a fact which has not been disputed before the High Court or before us. The only error which the trial court, in our opinion, committed was that, having held the sanction to be invalid, it should have discharged the accused rather than recording an order of acquittal on the merit of the case. As observed by this Court in Baij Nath Prasad Tripathi case [Baij Nath Prasad Tripathi v. State of Bhopal, AIR 1957 SC 494 : 1957 Cri LJ 597] , the absence of a sanction order implied that the court was not competent to take cognizance or try the accused. Resultantly, the trial by an incompetent court was bound to be invalid and non est in law.
Later, the Apex Court following NANJAPPA (supra), in the case of STATE OF MIZORAM v.
C.SANGNGHINA(2019) 13 SCC 335has held as follows:
"12. In Nanjappa case [Nanjappa v. State of Karnataka, (2015) 14 SCC 186 : (2016) 2 SCC (Cri) 360] , after referring to a number of judgments, this Court summarised the principles in para 23 as under : (SCC pp. 199-200) "23. Having said that there are two aspects which we must immediately advert to. The first relates to the effect of sub-section (3) to Section 19, which starts with a non obstante clause. Also relevant to the same aspect would be Section 465 CrPC which we have extracted earlier.
*** 24 23.2. A careful reading of sub-section (3) to Section 19 would show that the same interdicts reversal or alteration of any finding, sentence or order passed by a Special Judge, on the ground that the sanction order suffers from an error, omission or irregularity, unless of course the court before whom such finding, sentence or order is challenged in appeal or revision is of the opinion that a failure of justice has occurred by reason of such error, omission or irregularity. Sub-section (3), in other words, simply forbids interference with an order passed by the Special Judge in appeal, confirmation or revisional proceedings on the ground that the sanction is bad save and except, in cases where the appellate or revisional court finds that failure of justice has occurred by such invalidity. What is noteworthy is that sub-section (3) has no application to proceedings before the Special Judge, who is free to pass an order discharging the accused, if he is of the opinion that a valid order sanctioning prosecution of the accused had not been produced as required under Section 19(1).
23.3. Sub-section (3), in our opinion, postulates a prohibition against a higher court reversing an order passed by the Special Judge on the ground of any defect, omission or irregularity in the order of sanction. It does not forbid a Special Judge from passing an order at whatever stage of the proceedings holding that the prosecution is not maintainable for want of a valid order sanctioning the same.
23.4. The language employed in sub-section (3) is, in our opinion, clear and unambiguous. This is, in our opinion, sufficiently evident even from the language employed in sub-section (4) according to which the appellate or the revisional court shall, while examining whether the error, omission or irregularity in the sanction had occasioned in any failure of justice, have regard to the fact whether the objection could and should have been raised at an early stage. Suffice it to say, that a conjoint reading of Sections 19(3) and (4) leaves no manner of doubt that the said provisions envisage 25 a challenge to the validity of the order of sanction or the validity of the proceedings including finding, sentence or order passed by the Special Judge in appeal or revision before a higher court and not before the Special Judge trying the accused.
23.5. The rationale underlying the provision obviously is that if the trial has proceeded to conclusion and resulted in a finding or sentence, the same should not be lightly interfered with by the appellate or the revisional court simply because there was some omission, error or irregularity in the order sanctioning the prosecution under Section 19(1). Failure of justice is, what the appellate or revisional court would in such cases look for. And while examining whether any such failure had indeed taken place, the court concerned would also keep in mind whether the objection touching the error, omission or irregularity in the sanction could or should have been raised at an earlier stage of the proceedings meaning thereby whether the same could and should have been raised at the trial stage instead of being urged in appeal or revision."
13. In light of the above principles, considering the case in hand, even before commencement of trial, the respondent-accused was discharged due to lack of proper sanction, there was no impediment for filing the fresh/supplementary charge-sheet after obtaining valid sanction. Unless there is failure of justice on account of error, omission or irregularity in grant of sanction for prosecution, the proceedings under the Act could not be vitiated. By filing fresh charge-sheet, no prejudice is caused to the respondent nor would it result in failure of justice to be barred under the principles of "double jeopardy".
... ... ...
15. The whole basis of Section 300(1) CrPC is that the person who was tried by a competent court, once acquitted or convicted, cannot be tried for the same offence. As discussed earlier, in the case in hand, the respondent-accused has not been tried nor was there a full-fledged trial. On the other hand, the order of 26 discharge dated 12-9-2013 passed by the Special Court was only due to invalidity attached to the prosecution. When the respondent-accused was so discharged due to lack of proper sanction, the principles of "double jeopardy" will not apply. There was no bar for filing fresh/supplementary charge-sheet after obtaining a valid sanction for prosecution. The Special Court once it found that there was no valid sanction, it should have directed the prosecution to do the needful. The Special Court has not given sufficient opportunities to produce valid prosecution sanction from the competent authority. The Special Court erred in refusing to take cognizance of the case even after production of valid prosecution sanction obtained from the competent authority and the High Court was not right in affirming the order of the Special Court. The Special Court and the High Court were not right in holding that the filing of the fresh charge-sheet with proper sanction order for prosecution was barred under the principles of "double jeopardy".
16. In the light of the aforesaid judgments of the Apex Court with regard to Competent Authority according sanction and the ground of want of sanction by the Competent Authority as urged by the petitioner deserves to the accepted. Therefore, the subject point that arose for consideration is held in favour of the petitioner."
This Court was answering the very issue as to whether an incompetent Authority granting sanction would vitiate entire proceedings following the judgment of the Apex Court in the case of NANJAPPA v. STATE OF KARNATAKA(2015)14 SCC 186which had held that when an incompetent Authority grants sanction, all further proceedings taken thereafter would be a nullity in law. In the light of the judgment rendered by the Apex Court in the case of NANJAPPA (supra) as followed by this 27 Court in B.SHIVASHANKAR(supra), the petitioner, on this score, is entitled to succeed.
10. In a case arising out of the same issue a co-ordinate Bench of this Court had allowed the writ petition in terms of its order dated 25-02-2020 in LAKSHMAN RAO PESHVE v.
KARNATAKA LOKAYUKTA2 which was carried before the Apex Court in S.L.P.No.10018 of 2021. The Apex Court disposes of the special leave petition by the following order:
"Leave granted.
This appeal takes exception to the judgment and order dated 25-02-2020 passed by the High Court of Karnataka at Bengaluru in W.P.No.736 of 2018 (GM-RES), thereby allowing the writ petition filed by the respondent and setting aside the orders passed by the Additional City Civil and Sessions Court and Special Court, Bengaluru in Spl.C.C.No.327 of 2015.
The short question involved in the present appeal is:
whether the sanction accorded by the minister of the concerned Department was sufficient compliance of the legal requirement?
The High Court in paragraph 10 of the impugned judgment has merely noted that in another case the sanction proposal was placed before the Cabinet and on that basis, it proceeded to answer the controversy in favour of the respondent. This approach, in our opinion, is incorrect. The High Court should have examined the efficacy of the business rules which govern the functioning of the concerned State Department. It would have been a different matter if the High Court after examining the governing rules was to take the same view of the matter.2 Writ Petition No.736 of 2018 28
However, as the High Court has not dealt with the efficacy of the business rules, we deem it appropriate to set aside the impugned order and restore the writ petition to the file of the High Court for being considered afresh.
All contentions available to both sides are left open.
The sanction order which was assailed in the writ petition would stand revived in terms of this order, until the high Court decides to the contrary.
The appeal is disposed of in the above terms."
The Apex Court notices that the short question involved in the appeal was whether sanction accorded by the Minister of the concerned Department was sufficient compliance of the legal requirement. Holding that this Court had not dealt with the efficacy of the Transaction of Business Rules, the matter was remitted back to this Court, after which, a co-ordinate Bench by its order dated 8-02-2023 allows the petition by noticing the Transaction of Business Rules, 1977 and all other relevant provisions necessary for consideration in the said lis as follows:
"8. It is undisputed that the petitioner was working as a Chief Engineer which is a Group A Senior Scale post and he is the head of the Department as specified under item No.19 in Appendix I of the KCSR.
9. Rule 20(1)(a)of the Rules,1977, specifies that all cases specified under Schedule I to these Rules shall be brought before the Cabinet after submission to the Minister-in-charge.
10. Schedule I of the Transaction Rules, 1977 at item No.23 deals with the proposals for dismissal, removal or compulsory retirement Under Article 311 [holding post in Group-A or Group-B] [except those, for 29 imposing the penalties of dismissal, removal or compulsory retirement in accordance with the Karnataka Civil Services (Classification Control and Appeal) Rules, 1957, for an established charge of unauthorized absence].
11. Rule 21 of the Transaction Rules 1977, specifies that subject to the provision of Rule 20, all cases specified in Schedule I to these Rules shall be brought before the Cabinet.
12. Rule 23 of the Transaction Rules, 1977 deals with the procedure for placing the cases before the Cabinet.
13. Rule 27 of the Transaction Rules, 1977 deals with the meeting of the Cabinet as directed by the Chief Minister.
14. Rule 28 of the Transaction Rules, 1977 specifies that the Chief Minister or, in his absence, any other Cabinet Minister, nominated by him, shall preside at a meeting of the Cabinet.
15. Rule 29 of the Transaction Rules, 1977 specifies that, when a case has been decided by the Cabinet, the Secretary of the Department shall take action to give effect to the decision. Sub-rule (2) of Rule 29 of the Transaction Rules, 1977 specifies that, the decision of the Cabinet relating to each case, shall be separately recorded and shall be placed with the record of the case. An extract of the decision shall be sent to the Secretary of the Department concerned for necessary action.
16. Rule 37 of the Transaction Rules, 1977 specifies that all cases of the nature specified in the Third Schedule to these rules shall, before the issue of orders thereon, be submitted to the Governor.
17. Item No.9(b) of the Third Schedule of the Transaction Rules, 1977, deals with the proposals for rejection in rank, compulsory retirement, removal or dismissal from service of the following officer and one of the officer enumerated in the said item includes Heads of the Departments.
18. Rule 40 of the Transaction Rules, 1977 deals with the cases requiring the approval of the Governor under these rules or any provision of law and Bills to be assented to, or reserved for the consideration of the President by the Governor under the Constitution, shall be sent to the Secretary to the Governor for submission 30 to the Governor, by the Secretary of the Department after perusal by the Minister-in-charge.
19. A conjoint reading of the aforesaid rules indicates that the case for granting sanction to prosecute the petitioner is to be placed before the Minister-in- charge, who in turn, has to place the same before the Cabinet and the Cabinet after taking a decision shall recommend to the Governor, who in turn, will direct the Secretary of the Department to pass an appropriate order.
20. Similar issue involved in this petition came up for consideration before the Co-ordinate of this Court in the case of B. Shivashankar -vs- State by Karnataka Lokayuktha Police, Bengaluru, 2022(3) Kar.L.J. 575 and following points were framed for consideration:
"(i) Whether sanction accorded by the incompetent Authority would vitiate the entire proceedings ?.
(ii) Whether material collected during the investigation for offence punishable under Section 13(1)(d) of the Act could have been used in the peculiar facts of this case for offences punishable under Section 13(1)(e) of the Act ?"
21. The Co-ordinate Bench of this Court after examining the Karnataka Civil Services Rules, provisions contained in the Transaction Rules, 1977 at para 16 has held as follows:
"16. In the light of the aforesaid judgments of the Apex Court with regard to Competent Authority according sanction and the ground for want of sanction by the Competent Authority as urged by the petitioner deserves to be accepted. Therefore, the subject point that arose for consideration is held in favour of the Petitioner".
22. The decision rendered in the case of Dr. H.C. Sathyan, supra, is not applicable to the facts of the case, since, the Court was dealing with the sanction granted to prosecute the Officer i.e., Motor Vehicle Inspector, who was not the head of the department and also, the decision was rendered without reference to the Rules, 21,23 & 40 of the Karnataka Government (Transaction of Business) Rules, 1977.
23. The decision rendered in the case of Sri Theerthira N. Appachu @Titira N. Appachu, supra, was also without reference to the Rules, 21, 23 & 40 of the Karnataka Government (Transaction of Business) Rules, 1977.
24. Section 19 of the Prevention of Corruption Act, specifies that, no Court shall take cognizance of an 31 offence under sections 7, 10, 11, 13 & 15 in the case of the person who is employed in connection with the affairs of the State and is not removable from his office save by or his sanction of the State Government.
25. Conjoint reading of the provisions contained in the Section 19 of the Prevention of Corruption Act, KCSR and also the Transaction Rules, 1977, it is clear that the competent authority to take a decision, as to whether sanction can be granted to prosecute the petitioner, who is the head of the Department, is the Cabinet, and upon taking such a decision, the Cabinet has to recommend to the Governor for approval, and upon approval by the Governor, the Secretary of the department concerned pass an appropriate order.
26. In the instant case, sanction to prosecute the petitioner, who is the head of the department has been granted by the Minister-in-charge, who is not the competent authority as specified under KCSR and also the Transaction Rules, 1977.
27. The Hon'ble Supreme Court in the case of Nanjappa -vs- State of Karnataka, reported in (2015) 14 SCC 186, at para 28 held as follows:
"28. The next question then is whether we should, while allowing this appeal, set aside the order passed by the High Court and permit the launch of a fresh prosecution against the appellant, at this distant point of time. The incident in question occurred on 24th March, 1998. The appellant was, at that point of time, around 38 years old. The appellant is today a senior citizen. Putting the clock back at this stage when the prosecution witnesses themselves may not be available, will in our opinion, serve no purpose. That apart, the trial Court had, even upon appreciation of the evidence, although it was not required to do so, given its finding on the validity of the sanction, and had held that the prosecution case was doubtful, rejecting the prosecution story. It will, therefore, serve no purpose to resume the proceedings over and again. We do not, at any rate, see any compelling reason for directing a fresh trial at this distant point of time in a case of this nature involving a bribe of Rs.500/-,for which the appellant has already suffered the ignominy of a trial, conviction and a jail term no matter for a short while. We, accordingly, allow this appeal and set aside the order passed by the High Court."
28. The petitioner is due for retirement on attaining the age of superannuation in the month of April, 2023. Hence, permitting the respondent to launch criminal prosecution afresh would be an abuse of process of law, since the petitioner will be deprived of speedy 32 trial guaranteed under Article 21 of the Constitution of India for no fault of him."
The co-ordinate Bench was again following the cases of NANJAPPAand B. SHIVASHANKAR(supra). For the reasons rendered by this court inB. SHIVASHANKAR (supra) and in the case of LAKSHMAN RAO PESHVE(supra), this petition deserves to succeed on this score alone, as the Apex Court holds that if sanction is accorded by an incompetent Authority, the further proceedings before the concerned Court would become a nullity in law. If it is held that it would become a nullity in law, no other issue that is brought before this Court need be considered, as it has to be declared a nullity in law.
11. It is an admitted fact, in the case at hand that, sanction is accorded to prosecute the petitioner by the 3rd respondent who is the Principal Secretary in the Department of Animal Husbandry & Fisheries. The petitioner being a Group-A Officer, all major penalties will have to be imposed on him only by the Government. What penalties the 3rd respondent can impose are minor penalties and not the one that can result in his removal from service. The penalty of removal from service against the petitioner can be imposed only by the Government 33 i.e., Cabinet. As observed in the cases of B. SHIVASHANKAR and LAKSHMAN RAO PESHVE(supra),the very grant of sanction by the 3rd respondent is contrary to law. It cuts at the root and every other action taken after the grant of such sanction would all become a nullity in law in the light of the judgment of the Apex Court in the case of NANJAPPA. The second issue that has arisen for consideration is answered accordingly in favour of the petitioner.
12. In the light of both the issues cutting at the root of the matter, the other issue with regard to the concerned Court posting the matter for hearing before charge without taking cognizance of the offence, though on the face it is illegal,is not gone into, as it is unnecessary.
13. In the light of the foregoing, I pass the following:
ORDER
(i) Writ Petition is allowed.34
(ii) Proceedings in Special Case No.54 of 2019 pending before the Principal District and Sessions Judge, Mandya concerning FIR No.1 of 2018 stand quashed.
Sd/-
JUDGE bkp CT:MJ