Karnataka High Court
K.N. Ramesh vs State Of Karnataka on 2 July, 2019
Author: Alok Aradhe
Bench: Alok Aradhe
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02nd DAY OF JULY 2019
BEFORE
THE HON'BLE MR.JUSTICE ALOK ARADHE
WRIT PETITION No.23217/2019(GM-RES)
BETWEEN:
K.N.RAMESH
S/O K.P.NANJAPPA
AGED ABOUT 63 YEARS
RESIDING AT NO.76, 5TH CROSS,
BAPUJI BADAVANE, CHANDRA LAYOUT,
BENGALURU - 560 040.
... PETITIONER
(BY SRI. M. NAGAPRASANNA, SENIOR COUNSEL FOR
SMT. M.L.SUVARNA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY TO GOVERNMENT
DEPARTMENT OF PUBLIC WORKS,
PORTS AND INLAND WATER TRANSPORT
(SERVICES-3), VIDHANA SOUDHA,
Dr. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2. ADDITIONAL DIRECTOR GENERAL OF POLICE
ANTI-CORRUPTION BUREAU,
No.49, KHANIJA BHAVAN,
RACE COURSE ROAD,
BENGALURU - 560 001.
...RESPONDENTS
(BY SMT. PRATHIMA HONNAPURA, AGA FOR R1,
SRI. VENKATESH P. DALWAI, ADVOCATE FOR R2)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
ENTIRE RECORDS AND QUASH THE GOVERNMENT ORDER
DATED 10.05.2019 VIDE ANNEXURE-D ISSUED BY THE 1ST
RESPONDENT & ETC.,
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Sri. Naga Prasanna, learned Senior Counsel for the petitioner.
Smt. Prathima Honnapura, learned Additional Government Advocate for respondent No.1.
Sri. Venkatesh P. Dalwai, learned counsel for respondent No.2.
The petition is admitted for hearing. With the consent of learned Counsel for the parties, the matter is heard finally.
2. In this writ petition filed under Article 226 of the Constitution of India, the petitioner, inter alia, seeks quashment of the order dated 10.05.2019 passed by respondent No.1.
3
3. Facts giving rise to filing of the writ petition briefly stated are that the petitioner joined the services of Public Works Department as Assistant Engineer on 02.05.1984. He was promoted as Assistant Executive Engineer in the year 2010 and he was sent on deputation to Bruhat Bengaluru Mahanagara Palike as Assistant Executive Engineer. In the year 2012, the petitioner was posted as an Assistant Executive Engineer at the Road Infrastructure, Mahadevapura Sub-Division, Bangalore. On 19.08.2014, the petitioner was transferred to the Head Office under the Chief Engineer, Road Infrastructure as Technical Assistant-II. The petitioner was relieved from the said office on 20.08.2014 and he retired from the services after attaining the age of superannuation on 30.04.2016.
4. After retirement of the petitioner, a complaint was registered before respondent No.2 namely, Anti Corruption Bureau by one Mr.Syed Aslam Parvez on the 4 allegation that there has been gross violation of TDRs (Transfer of Development Rights) in Sy.No.132 of Kowdanahalli Village, K.R.Puram Hobli, Bangalore and thereupon, the investigation was conducted by respondent No.2 and during the course of investigation, it was found that in the month of November, 2014 and December, 2014, the persons working in TDR section at Mahadevapura have committed the acts of fraud. By order dated 10.05.2019, the Government granted permission to register FIR against the petitioner to conduct investigation. In the aforesaid factual background, the petitioner has approached this Court.
5. Learned Senior counsel appearing for the petitioner submitted that the petitioner was transferred from Mahadevapura Sub-Division on 20.08.2014 and was relieved. Therefore, the question of his involvement in the alleged offence in the month of November, 2014 and December, 2014 does not arise. It is further 5 submitted that Section 17-A of the Prevention of Corruption Act, 1988, ('the Act' for short) which has been inserted with effect from 26.07.2018 has no application to the fact situation of the case. It is also submitted that this Court has jurisdiction to interfere in exercise of power under Article 226 of the Constitution of India, provided the grant of sanction has resulted in violation of justice.
6. In the instant case, admittedly, the petitioner in no way was involved in the commission of the alleged offence, as he was not working in Mahadevapura area at the relevant time. It is also submitted that the order granting sanction suffers from the vice of non application of mind. In support of his contention, the learned Senior counsel for the petitioner has placed reliance on the following decisions:-
(i) 'Mansukhlal Vithaldas Chauhan vs. State of Gujarat', (1997) 7 SCC 622, 6
(ii) 'T.K.Ramesh Kumar vs. State through Police Inspector, Bangalore', (2015) 15 SCC 629 and
(iii) 'Ramesh Chennithala vs. State of Kerala', 2018 SCC Online KER 14261
7. Learned Additional Government Advocate submitted that the order granting sanction against the petitioner has been fastened on the basis of the report submitted by respondent No.2 dated 12.03.2019 and there is a bar with regard to the stay of investigation of proceedings pending under the provisions of the Act before the Court of Law and under Section 19(3) of the Act.
8. Learned counsel for respondent No.2 while inviting the attention of this Court to paragraph-4 of the statement of objections, submitted that in fact typographical error crept in the order and the offence had taken place prior to Novermber and December, 7 2014, a request in this regard was made to the respondent No.1 for correction of the aforesaid mistake. It is also submitted that the petitioner nowhere has pleaded in the petition that if the order granting sanction is allowed to stand, it will occasion failure of justice. It is also submitted that Explanation (b) to Section 19(4) of the Act insulate the provisions contained in Section 17-A of the Act. In support of his submissions, reliance has been placed on a decision of the Supreme Court in the case of 'Girish Kumar Suneja vs. C.B.I.' AIR 2017 SC 3620. In this connection, learned counsel for Respondent no.2 has invited the attention of this Court to paragraphs 58, 64, 65, 67 and 71 of the aforesaid decision.
9. Learned Senior counsel for the petitioner by way of rejoinder reply submitted that a request for correcting typographical error as stated in the objection statement has been made to respondent No.1. It is 8 further submitted that in the garb of plea of typographical examination, the scope of investigation cannot be enlarged and the petitioner cannot be roped in.
10. I have considered the submissions made by learned counsel for the parties and perused the record.
11. In paragraph-4 of the objections filed on behalf of respondent No.2, which is duly supported by an Affidavit, the following averments have been made:-
" 4. In respect of Kowdenahalli Sy.No.132 of 6 acres and 32 guntas that falls within the notified area, the act of creating fraudulent documents of sketch and spot inspection reports were done much earlier to the months of November and December, 2014. The conspiracy to sell the DRC (as TDR) by the Valmark Company to other companies commenced in November and December, 2014 and hence, while seeking sanction, it was mentioned as such by the enquiry officer. However, it is pertinent to note the conspiracy and offence had commenced much earlier while the petitioner was in-charge as AEE.9
Hence, the petitioner is seeking to wriggle out of the charge by taking advantage of a mere technical aspect. Whereas there exists sufficient documentary materials to show the involvement of the petitioner in the case. The respondent No.2 has sent communication to Respondent No.1 to correct typographical error regarding the months mentioned and the same is awaited".
12. The aforesaid averment of fact has not been denied on behalf of the petitioner.
13. It is well settled in law that if the averment of fact is not controverted by the petitioner, the same is taken to be accepted. In this connection, reference has been made to a decision of Supreme Court in the case of 'Smt.Naseen Bano vs. State of Uttar Pradesh & Others', (1993) Supplement 4 SCC 46. It is also pertinent to mention here that the Supreme Court in 'Central Bureau of Investigation vs. V.K.Sehgal', 1999 (8) SCC 501, has held that any error, omission or irregularity in the grant of sanction, it has occasioned or 10 resulted in failure of justice. The trial court has duty to consider the same and the accused has right to raise objection in this regard.
14. Since the matter is still under investigation stage and whether or not the petitioner at the relevant time was posted as Assistant Executive Engineer, Mahadevapura Sub-Division, is yet to be investigated and in view of the fact that the petitioner shall have a liberty to raise objections with regard to grant of sanction and validity of sanction before the trial court, I am not inclined to interfere at this stage in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, as the same involves adjudication of the fact.
15. It is also pertinent to mention here that First Information Report has been lodged against the other accused on 10.04.2019 and thereafter, on the basis of the report submitted by respondent No.2 and the order 11 granting sanction to prosecute the petitioner, he has been arrayed as an accused. It is open to the petitioner to raise all such defence as may be available to him under the law and to bring all the facts to the notice of the investigating agency. Hence, no case for interference is made out.
16. In the result, the petition fails and the same is hereby dismissed.
Sd/-
JUDGE Srl.