Karnataka High Court
The State Of Karnataka vs Sri Afsar Nayaz S/O Abdul Ghani on 22 October, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF OCTOBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL REVISION PETITION No.444/2011
BETWEEN:
THE STATE OF KARNATAKA
BY THE POLICE INSPECTOR
KARNATAKA LOKAYUKTA POLICE
BANGALORE CITY, BANGALORE. ... PETITIONER
(BY SMT.T.M.GAYATHRI, ADV.)
AND:
SRI AFSAR NAYAZ
S/O ABDUL GHANI, 40 YEARS
ASSISTANT ENGINEER & CASE WORKER
GANGANAGARA RANGE, OFFICE OF THE EXECUTIVE
ENGINEER, BANGALORE MAHANAGARA PALIKE
QUEENS ROAD, BANGALORE
PRESENT ADDRESS:
ASSISTANT ENGINEER, OFFICE OF THE ASSISTANT EXECUTIVE
ENGINEER, PRE SOUTH SUB DIVISION, BEHIND
BANASHANKARI TEMPLE
KANAKAPURA ROAD,
BANGALORE - 560 070. ... RESPONDENT
(BY SRI C H JADHAV, SENIOR ADVOCATE)
THIS REVISION PETITION IS FILED UNDER SECTION 397 R/W
401 CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 02.08.2010
PASSED BY THE SPECIAL JUDGE, BANGALORE URBAN DISTRICT,
BANGALORE IN SPL.C.C.NO.19/2005 & DIRECT THE SPECIAL COURT
TO FRAME CHARGES AND TO PROCEED WITH TRIAL & ETC.
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THIS REVISION PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
I have heard Smt.T.M.Gayathri, learned counsel for petitioner and Sri C.H.Jadhav, learned senior counsel for respondent.
2. The respondent was arrayed as accused in Special C.C.No.19/2005, registered for offences punishable under sections 7 & 13(1)(d) r/w 13 (2) of the Prevention of Corruption Act, 1988 (for short, 'the Act'). The learned Special Judge took cognizance of offences alleged against respondent and issued process. The respondent entered appearance and raised objections regarding validity of sanction. The respondent had also made an application for discharge, inter alia contending that Government of Karnataka by letter dated 25.05.2004 had refused to accord sanction. Therefore, subsequent sanction order dated 05.02.2005 is bad in law. The Government of Karnataka having declined to accord sanction on 25.05.2004 should 3 not have accorded sanction to prosecute the respondent on 05.02.2005.
3. The learned counsel for Lokayukta Police opposed discharge application. Thereafter learned Special Judge examined PW1 (Sanctioning Authority). PW1 had also produced file relating to sanction accorded to prosecute respondent (accused). The learned Special Judge after recording evidence of PW1 and after going through the contents of file has held that Government had declined to accord sanction by its letter dated 25.05.2004. The learned Special Judge has reproduced letter dated 25.05.2004, which reads thus:-
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4. The learned Special Judge has held that in view of aforestated letter, sanction accorded on 05.02.2005 is invalid. The learned Special Judge had scrutinized notes put up by different officials at different levels to find out veracity of sanction accorded to prosecute respondent (accused).
5. In my considered opinion, learned Special Judge should not have undertaken this exercise before framing charges. It is needless to state trial of offences under the Act has to be held by following procedure under Chapter XIX Cr.P.C., meant for trial of warrant cases instituted on a police report. Section 239 Cr.P.C., stipulates conditions for discharge of accused. Section 240 Cr.P.C., stipulates conditions for framing of charge against accused. Section 239 Cr.P.C., does not stipulate examination of witnesses for 6 prosecution to consider plea of discharge. Similarly, section 240 Cr.P.C., does not provide for examination of witnesses before framing of charge. Under section 239 Cr.P.C., if, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and accused an opportunity of being heard, the Magistrate considers the charge against accused to be groundless, he shall discharge accused, and record his reasons for so doing.
6. Under section 240 Cr.P.C., if, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against accused. 7
7. Under section 242 Cr.P.C., if accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict accused under section 241, the Magistrate shall fix a date for examination of witnesses. Therefore, learned Special Judge should not have examined PW1 to find out veracity of sanction order dated 05.02.2005. The learned Special Judge has deviated from procedure contemplated for trial of offences under the Act. The learned Special Judge has failed to notice any irregularity or omission in the sanction accorded to prosecute respondent (accused), could be considered only in terms of section 19(4) of the Act.
8. Sri C.H.Jadhav, learned senior counsel for respondent (accused), relying on decisions of the Supreme Court, reported in (2000) 9 SCC 53 (in the case of Gopikant Choudhary Vs. State of Bihar & others), (2009) 17 SCC 92 (in the case of State of Punjab & another Vs. Mohammed Iqbal Bhatti) and (2010) 14 SCC 527 (in the case of State of Himachal Pradesh Vs. Nishant Sareen) would submit that Sanctioning Authority having refused to accord sanction 8 cannot accord fresh sanction without there being any fresh material.
9. The learned senior counsel for respondent, relying on judgment of this court, reported in 2008(3) AIR Kar.R.83 (in the case of B.Shivarudraswamy Vs. State) would submit that subsequent order granting sanction is void ab initio. The accused has to be discharged.
10. The learned counsel for Lokayukta police, relying on the judgment of Supreme Court, reported in (2010) 2 SCC (Cri) 667 (in the case of State of Madhya Pradesh Vs. Virender Kumar Tripathi) would submit that under section 19(3)(a) of the Act, 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 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. 9
11. The learned counsel for Lokayukta Police would submit whether a failure of justice has in fact been occasioned or not has to be determined after the trial is concluded. Therefore, decision taken by learned Special Judge is premature, apart from being contrary to the provisions of sections 239 & 240 Cr.P.C.
12. After going through judgments relied upon by learned senior counsel for respondent (accused), I find in those decisions, validity of sanction order was questioned on the ground that Government had issued orders, the first order refusing to accord sanction and subsequently order according sanction, without there being fresh material. However, question of validity of sanction was not raised before the Special Court and question had not been raised after final report was filed before the Special Court.
13. In the discussion made supra, I have extracted letter dated 25.05.2004, relied upon by learned Special Judge. Whether Sanctioning Authority could have accorded 10 sanction in terms of order dated 05.02.2005 in the wake of this letter and whether it has resulted in failure of justice is a matter for consideration on merits of the case. In the circumstances, the learned Special Judge was not justified in examining PW1 and scrutinizing entire file to record a finding that sanction accorded on 05.02.2005 is invalid and respondent (accused) has to be discharged.
14. In the discussion made supra, I have held that appropriate stage for consideration of plea of discharge raised by respondent (accused) regarding validity of sanction has not reached. Therefore, it would not be proper for me to express any opinion on letter dated 25.05.2004 extracted supra and subsequent sanction accorded on 05.02.2005. In view of the above discussion, I am of the considered opinion that impugned order cannot be sustained.
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15. In the result, I pass the following:-
ORDER The revision petition is accepted. The impugned order is set aside. The learned Special Judge is directed to proceed in accordance with the provisions of Chapter XIX A Cr.P.C., procedure meant for trial of warrant cases instituted on a police report. The other contentions urged herein are kept open. Office is directed to send back records along with a copy of this order.
Sd/-
JUDGE SNN