Andhra HC (Pre-Telangana)
1.Juvvaji Srinivasa Rao S/O ... vs 1.The State, District Inspector, ... on 26 June, 2013
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
CRIMINAL PETITION No. 6538 of 2010
dated:26-06-2013
1.Juvvaji Srinivasa Rao S/o Venkaiah,Hindu, Aged 44 years, Formerly Jr.
Assistant, Acharya Nagarjuna University, Nagarjuna Nagar, Guntur District, R/o
Khaja Village, Mangalagiri Mandal ... Petitioner
1.The State, District Inspector, Krishna Anti Corruption Bureau, Vijayawada
Range, Vijayawada, Krishna District, rep. by itsSpecial Prosecutor, High Court
of A.P.,Hyderabad.... Respondent
Counsel for the Petitioner:Sri Ganduri Nageswara Rao, Advocate.
Counsel for the Respondent: Sri M.B.Thimma Reddy,
Special Public Prosecutor &
Standing Counsel for ACB
<Gist:
>Head Note:
?Cases referred:
1. (2001) 8 SCC 607
2. (2009) 11 SCC 737
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
CRIMINAL PETITION No. 6538 of 2010
ORDER:
1. Issuance of sanction order dt.05.02.2006 by the Vice-Chancellor, Acharya Nagarjuna University, Nagarjuna Nagar, Andhra Pradesh, India, led to filing of present Criminal Petition under Section 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") seeking to quash the proceedings in C.C.No.28 of 2007 on the file of the Special Judge for SPE & ACB Cases, Vijayawada on the ground that taking cognizance of the matter on the basis of invalid sanction is bad in law.
2. The facts in a nutshell are as under:
The petitioner/accused, who was working as Junior Assistant in the Nagarjuna University is alleged to have demanded a sum of Rs.1,000/- from a student as illegal gratification for issuance of a revised marks list. As LW.1 was not willing to pay any bribe, he submitted a report on 10.11.2005 with LW.9, Inspector of ACB for taking suitable action against A1. After receiving the said report, LW.9 endorsed the same to LW.7, who after conducting field enquiry, after taking permission from the higher authorities, registered a case in Cr.No.23/ACB-RCT-VJA/2005 under Section 7 of the Prevention of Corruption Act, 1988 ("for short P.C. Act"). Thereafter on 15.11.2005 the accused officer was successfully trapped when he demanded and accepted a sum of Rs.1,000/- from LW.1 as illegal gratification other than legal remuneration for issuing a fresh marks list of III Semester-November, 2004 to LW.1. After obtaining sanction from the Vice Chancellor, who is the competent authority to remove the accused from service, the Inspector of ACB filed the charge sheet.
3. Heard the learned counsel for the petitioner and the learned Special Public Prosecutor and Standing Counsel for ACB.
4. The learned counsel for the petitioner mainly submits that Vice-Chancellor by himself is not a competent authority to accord sanction for prosecuting the petitioner. Relying on Section 19(7) of the Andhra Pradesh Universities Act, 1991, he contends that it is only the Board of Management, which shall have the power to appoint, dismiss, remove or suspend any member of non-teaching staff of the University and as such the Vice Chancellor cannot claim himself to be the person authorized to remove the accused. He would further contend that the sanction order does not even say that the Vice Chancellor was authorized by the Board/Council to accord sanction for prosecution. Thus, according to him, continuation of proceedings on the basis of sanction order, which is not in accordance with law, amounts to an abuse of process of law and seeks quashing of the said proceedings.
5. On the other hand, the learned Standing Counsel for ACB would submit that there is no illegality in the sanction accorded by the Vice Chancellor and the said order was subsequently ratified by the Board/Council. He would further submit that the sanction order came to be passed after application of mind to the facts of the case. In view of Section 19(3) of the Act, no prejudice would be caused to the accused if the prosecution proceeds with the trial as it cannot be said that failure of justice has occasioned thereby.
6. Before proceeding further, it would be relevant to refer to Sections 19 (1) (a), 19(3) and 19(4) of the Prevention of Corruption Act, 1988.
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.
(b) -- (c) -- (2) -- (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.
7. The main point that is canvassed by the learned counsel for the petitioner is with regard to the competency of the Vice Chancellor in issuing sanction order for prosecuting the petitioner.
8. As per section 19(3) of the Act, no finding, sentence or order passed by the Special Judge shall be reversed by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in the sanction order unless a failure of justice has been occasioned thereby. Such being the position, the competency of the sanctioning authority in issuing the sanction order would arise only if failure of justice has occasioned thereby. The sanction order, which is placed on record, was admittedly issued by the Vice Chancellor. A perusal of the said order would indicate that after perusing the entire material placed before him and on being satisfied that a prima facie case has been made out against the petitioner/accused, accorded sanction to prosecute him on the ground that he is the competent authority to remove the petitioner from service. It is true that the sanction order is silent as to the authorization given by the Board either to remove or to accord sanction for the prosecution of the petitioner. But the material placed by the Standing Counsel for ACB would show that the Executive Council in its meeting held on 20.03.2001 resolved that in all cases of ACB trap and investigation under the P.C. Act, the Vice Chancellor is authorized to place the employee concerned under suspension without bringing the same to the Executive Council.
9. Under Section 19 (3) (a) of the P.C. Act, the finding, sentence or order passed by a Special Judge shall not be reversed or altered by a Court in an appeal, confirmation or revise on the ground of absence of sanction as required under Sub-Section (1) or that there was an error, omission or irregularity in the sanction, unless there was failure of justice. Similarly under Section 19(3)(b) of the P.C. Act, the Court shall not stay the proceedings under the P.C. Act on the ground of any error, omission or irregularity in the sanction granted by the authority unless it is shown that a failure of justice has occasioned thereby. Dealing with Sections 19(3) and 19(4) of the P.C. Act, the Apex Court in Satya Narayan Sharma v. State of Rajasthan1, observed as under:
24. The prohibition is couched in a language admitting of no exception whatsoever, which is clear from the provision itself. The prohibition is incorporated in sub-section (3) of Section 19 of the Act. The sub-section consists of three clauses. For all the three clauses the controlling non obstante words are set out in the commencing portion as:
"19. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973...."
Hence none of the provisions in the Code could be invoked for circumventing any one of the bans enumerated in the sub-section.
25. Clause (a) of the sub-section prohibits reversal or alteration of any finding or sentence or order passed by a Special Judge on the ground of absence of, or any error, omission or irregularity in the sanction required for taking cognizance of an offence punishable in the Act, unless in the opinion of the appellate or revisional court "a failure of justice has in fact been occasioned thereby".
26. Clause (b) contains the prohibition against stay of proceedings under this Act, but it is restricted to the sanction aspect alone. No error, omission or irregularity in the sanction shall be a ground for staying the proceedings under this Act "unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice". In determining whether there was any such failure of justice it is mandated that the court shall have regard to the fact whether the objection regarding that aspect could or should have been raised at any earlier stage in the proceedings. We may now point out that merely because objection regarding sanction was raised at the early stage is not a ground for holding that there was failure of justice. If the Special Judge has overruled the objection raised regarding that aspect it is normally inconceivable that there could be any failure of justice even if such objections were to be upheld by the High Court. Overruling an objection on the ground of sanction does not end the case detrimentally to the accused. It only equips a judicial forum to examine the allegations against a public servant judicially. Hence it is an uphill task to show that discountenance of any objection regarding sanction has resulted in a failure of justice. The corollary of it is this: the High Court would not normally grant stay on that ground either.
27. It is in clause (c) of the sub-section that the prohibition is couched in unexceptional terms. It reads thus:
"19. (3)(c) no court shall stay the proceedings under this Act on any other ground...."
10. In R.Venkatkrishnan v. CBI2, the Apex Court was dealing with the situation as to whether the Chairman-cum-Managing Director, National Housing Bank (NHB) can accord sanction for prosecuting A6, who was initially appointed by the Reserve Bank of India and subsequently sent to NHB on deputation and later absorbed in the said department in the year 1992. The order of sanction in respect of him was issued on 26.02.1993. While holding that the Chairman-cum- Managing Director of NHB was the competent person to accord sanction, as done in the said case, but, however, observed that even if it is to be assumed for the sake of argument, the Chairman-cum-Managing Director, NHB was not the competent person to pass the order against the officials of NHB, the prosecution could still rely on Section 19(3) of the Act and proceed with the case since it cannot be said that any failure of justice has occasioned thereby.
11. When Section 19(a) and (b) of the P.C. Act prohibit reversal or alteration of a finding, sentence or order passed by a Special Judge in an appeal, confirmation or reversion on the ground of absence or on the ground of irregular sanction unless a failure of justice has occasioned, the question of quashing of the proceedings under Section 482 of Cr.P.C. on the ground of invalid sanction order at the threshold would not arise unless it is established that there was a failure of justice. As held in R.Venkatkrishnan's case, issuance of sanction by a person not competent to do, would not amount to any failure of justice.
12. Further, as held by the Apex Court in Satya Narayan Sharma's case, merely because objections regarding sanction was raised at an early stage, is not a ground for holding that there was failure of justice. Overruling an objection on the ground of sanction does not end the case detrimental to the accused but it only equips a judicial forum to examine the allegations against the Public Servant judiciously. Hence, the Court held that it is very difficult to show that discontinuance of any objection regarding the sanction has resulted in failure of justice.
13. That being the position, even if it is to be assumed for the sake of argument that Vice Chancellor of Nagarjuna University is not a competent authority to issue sanction order for prosecution of the petitioner, it cannot be said that the failure of justice has in fact been occasioned. It is needless for this Court to go into the question as to whether there was valid and proper delegation of power to issue sanction order. For the aforesaid reasons and in view of the judgments of the Apex Court, which are referred to above, this Court is of the opinion that there are no merits in the petition and the same is liable to be dismissed.
14. Accordingly, the Criminal Petition filed for quashing the proceedings in C.C.No.28 of 2007 on the file of the Special Judge for SPE & ACB Cases, Vijayawada, is hereby dismissed. The miscellaneous petitions, if any pending shall stand closed.
____________________ C. PRAVEEN KUMAR, J Date: 26-06-2013