Karnataka High Court
J.S. Sathyanarayana (Deceased) By L.Rs ... vs State By Inspector Of Police, Karnataka ... on 31 May, 2000
Equivalent citations: 2000(5)KARLJ17
JUDGMENT
1. These two appeals have been preferred by the original accused 1 and 2 in Special Case (Corruption) No. 1 of 1993 decided by the learned Principal Sessions Judge, Kodagu, District Madikeri on 7-10-1995.
2. Briefly stated, the accused 1 who was then the Chief Officer of the Town Municipal Council, Madikeri and accused 2 who was then a clerk working under accused 1 were alleged to have demanded and received illegal gratification of Rs. 500/- each from P.W. 1-Raghavendra Holla for purposes of showing favour to him in relation to an application that had been filed pertaining to a certain property. It is unnecessary for me to embark upon a detailed narration of the prosecution case because it was alleged that the complaint was registered by the Madikeri Lokayukta Police on 2-8-1991 and that pursuant to this complaint a trap was laid. The complainant was asked to handover the ten currency notes of Rs. 100/- denomination which had been treated with phenolphthalein powder and to give a signal to the party. On the date of the incident, the complainant handed over the amounts in two envelopes, one to the accused 1 who is alleged to have kept the same on his table and subsequently transferred it to his trouser pocket and the other to the accused 2 who accepted it and put it in his shirt pocket and on receipt of the requisite signal, the raiding party apprehended the two accused. The currency notes were recovered from their possession, limewater was poured on their hands which turned pink and the same was the case with the parts of their clothing where the powder had got smeared. The requisite inventories etc., were drawn up, the accused were arrested and finally charge sheeted. Being a prosecution under the Prevention of Corruption Act, the requisite sanction was also obtained from the Government for prosecution of the accused. The Trial Court at the conclusion of the trial found both the accused guilty of the charges and convicted them and sentenced them to suffer R.I. for three years and to pay a fine of Rs. 5,000/- on each count. The two appeals have been directed against the convictions and sentences awarded to the two accused by the Trial Court.
3. These are appeals filed in the year 1995 and it is brought to my notice that the appellant in Criminal Appeal No. 622 of 1995 has died. Normally, the appeal would have to be treated as having abated but, since there is a sentence of fine which the State is entitled to recover, the appellants' learned Advocate has pressed the appeal and the same is accordingly disposed of on merits.
4. I have heard the appellants' learned Advocates as also the learned Public Prosecutor who appears on behalf of the State of Karnataka. The record has been totally reviewed and, even though the appellants' learned Advocates submitted that the findings of the Trial Court should be set aside insofar as on merits, the charges do not stand proved, I refrain from embarking on any detailed evaluation of that nature because the preliminary objection canvassed on behalf of the appellant with regard to the maintainability of the prosecution will have to be upheld and if that is done, the question of examining the merits does not arise at all.
5. On behalf of the appellants, as and by way of a preliminary objection, the validity of the sanction order has been challenged. There is no dispute about the fact that sanction order was applied for by the prosecuting authorities and P.W. 8 who was the then Under Secretary to Government in the Housing and Urban Development Department has accorded the requisite sanction. The sanction order has been produced by the prosecution and is Ex. P. 19. It is an order dated 4-9-1992 issued by the Under Secretary to Government and accords sanction for the prosecution of the two accused for the offences under the Prevention of Corruption Act. There is a very serious challenge with regard to the validity of this order under two heads, the first of them being that a perusal of the order indicates that the sanction has been mechanically accorded and the second proceeds on the footing that the authority which accorded the sanction is not the authority competent to do so. The law with regard to these aspects of the case is more than well-settled and I do not need to burden this judgment by recounting the various decisions of the Supreme Court and the various High Courts with regard to the crystallised position in law.
6. The Public Prosecutor submitted that this objection which is really a procedural objection should not be permitted at such a late stage and that too at the stage when the appeal has come up for hearing, years after the trial has been concluded. His submission was that it was incumbent on the part of the defence, if they desired to find fault with the validity of the sanction order, that it should have been challenged at the inception and that too through a proper legal challenge in the form of an application either before the Trial Court or any higher Court and if the sanction order was found to be defective or invalid that it would have been perfectly permissible for the State to have taken corrective action at that stage. His submission is that the accused who were obviously conscious of the importance of a valid sanction order have even put a question to P.W. 8 asking him as to whether he was competent to accord sanction for the prosecution and have accepted the answer given by him that he was competent to do so, that they are bound by the answer and are precluded from thereafter questioning the validity of the order. It is true that in cross-examination a specific question was put to P.W. 8, the then Under Secretary who has accorded the sanction pointing out that he did not have the power to grant sanction in this case and the witness has denied the suggestion and maintained that be did have the power to grant sanction. The real question is as to whether or not it is open, despite this record, to the accused to still challenge the validity of the sanction order. In this regard, I do not see much difficulty because even though the learned Public Prosecutor is right when he points out that an objection of this type should normally be raised at the earliest point of time so that the State could be put on notice, it still does not absolve the State from the basic duty of ensuring on its own that the sanction order is valid in all respects. Also, what I need to note is that the challenge is on a pure point of law and it is well-settled that it is open to the parties to a proceeding, even at the appellate stage, to canvass a point of law for the first time. The appellants therefore cannot be precluded from challenging the sanction order at the appellate stage before this Court.
7. As indicated by me earlier the appellants' learned Counsels have contended that Ex. P. 19 should be struck down on the ground that sanction has been mechanically accorded. Reliance was placed on several decisions and I do refer to only one of them viz., Mohd. Iqbal Ahmed v State of Andhra Pradesh, wherein the dictum was laid down that a sanction order if it is to pass the test of scrutiny by a Court must indicate due application of mind on the part of the sanctioning authority. It goes without saying that if the authority has merely signed a prescribed proforma or if it appears to the Court from the wording of the order that the authority has not examined the records of the case before according sanction, the very purpose of prescribing the procedure gets defeated and the sanction order will necessarily have to be quashed. The guidelines laid down in various decisions postulate that the sanction order, on the face of it, must indicate to the Court clearly that the sanctioning authority has evaluated the material placed before it and has come to the conclusion that this is a case which warrants a prosecution. The reason for this is obvious because the consequences of a prosecution under the Prevention of Corruption Act virtually spell the death-knell of the career of the accused apart from the economic consequences and the reputation. It also has far-reaching consequences financially and otherwise to the Government and consequently, the legislature has provided for a safety valve by insisting on sanction from the Government in the hope that all those cases in which the material does not justify a prosecution or where a prosecution would be worthless should be weeded out. Also, the Courts have held that since a valid sanction is prerequisite or condition precedent for the prosecution it necessarily follows that if the sanction order is held to be bad in law that it will vitiate the entire proceeding.
8. The sanction order in the present case which is Ex. P. 19 sets out two short paragraphs wherein there is a brief factual narration of the fact that the accused have been charged with having demanded and received illegal gratification. There is mention to the effect that one of them has been transferred and the other has been suspended and the order straightaway proceeds to accord sanction for prosecution. The learned defence Counsel has submitted that the earlier part of the order is a summary of the report made by the investigating authorities and that the latter part of it straightaway accords sanction without indicating the two most essential ingredients, viz., the fact that the authority has considered the records and come to the conclusion that in this case a prosecution is warranted. It is therefore contended that Ex. P. 19 comes squarely within the category of cases wherein sanction has been mechanically granted and that the sanction order is invalid.
9. The learned Public Prosecutor has sought to vehemently defend the order by pointing out to the Court that this was a simple clear-cut trap case where there are no complicated facts involved. P.W. 8 has stated in his evidence that along with the letter from the police the records were sent to him. He has also said in examination-in-chief and repeated it in cross-examination that he had carefully gone through the records and then accorded sanction. The learned Public Prosecutor therefore submitted that where the facts are very clear-cut and where the authority states that on a simple perusal of the record, it was sufficient to conclude that a prosecution ought to be sanctioned, that no elaborate reasoning of any type is required and that having set out briefly the nature of the charges, the authority was fully justified on record in sanctioning the prosecution. His additional submission was that if on a perusal of the material before the Court on facts where it is demonstrated that a complaint was lodged, a trap was laid and the accused were caught virtually red-handed, that it would be clear to the Court that no elaborate application of mind was required in a case of this nature and that the accord of a straightforward sanction was fully justified.
10. The law with regard to the quality of orders, and the form in which orders are required to be passed is more than well-settled. I agree with the learned Public Prosecutor that no elaborate reasoning is required in orders of this type but, this does not mean that the authority can totally short-circuit and bypass the basic and bare necessities. The authority could have very briefly stated that the record before it fully justifies a prosecution because the complaint, the statements of the witnesses and the panchnamas and other exhibits make out more than a prima facie case and that consequently, a prosecution is warranted. Unfortunately, the sanction order does not even mention the fact that the records were either received or perused or that they were considered and in the absence of this, merely because cover-up action is taken in the witness-box, it would be difficult to hold that the authority in question had duly applied its mind. All that needs to be said is that by virtue of the basic omissions in the sanction order, of even mentioning what has been stated above, this Court will have no option except to hold that it would not be possible to accept the contention of P.W. 8 that there was due consideration and application of mind at the stage of accord of sanction.
11. The problem for the prosecution does not end here because the second head of challenge is that P.W. 8 who was the then Under Secretary to Government was not legally empowered to sanction the prosecution. The appellants' learned Counsel have relied on the rules of business relating to the transaction of business by the State Government and have pointed out that the power of the Government essentially vests in the Governor, Chief Minister or the Ministers. It is equally permissible under the rules of business to delegate these powers, in appropriate cases to certain authorities but, in those instances it is necessary for the officer to whom the powers have been delegated to specifically set out that the power is being exercised in accordance with the rule, order or notification under which the delegation has taken place. Admittedly, there was no delegation of power in the present case because P.W. 8 has not either stated it, referred to it or produced anything in support of such a situation. There is no doubt about the fact that ex facie by virtue of his position as Under Secretary the power did not vest in P.W. 8 to sanction the prosecution.
In an identical situation that arose in Criminal Petition No. 2546 of 1995 decided by my brother Kumar Rajaratnam, J., on 31-3-1997, this Court has upheld the position that the power to sanction a prosecution under the Prevention of Corruption Act does not vest in the Under Secretary to Government. Having regard to that position, the order Ex. P. 19 whereby sanction to prosecute has been accorded will have to be quashed and the objection canvassed on behalf of the defence will have to be upheld. As indicated by me earlier, the consequences of quashing of the sanction order would be that the entire proceeding is vitiated and it necessarily follows therefore that the convictions and sentences recorded against the two appellants who were the two accused before the Trial Court will necessarily have to be set aside. I am conscious of the fact that A-1 has died but, this will not make any difference because the consequences of the conviction are far-reaching and there are several aspects such as the financial consequences, reputation, career etc., and consequently, the order of this Court would be equally valid as far as A-l is concerned. I do not consider it necessary to either examine or record findings with regard to the merits of the case because that aspect of the matter is totally irrelevant if the proceedings stand vitiated.
12. Having regard to the aforesaid situation, both the appeals succeed. The convictions and sentences awarded to the two accused by the Trial Court are set aside. If any fine has been paid the same will have to be refunded to the accused. The bail bond of accused 2 stands cancelled.