Sri H R Krishnappa vs The State Of Karnataka on 6 October, 2023

[Cites 50, Cited by 0]

Karnataka High Court

Sri H R Krishnappa vs The State Of Karnataka on 6 October, 2023

Bench: M. Nagaprasanna

                           1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 06TH DAY OF OCTOBER, 2023

                          BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

          WRIT PETITION No.14291 OF 2023 (GM-RES)


BETWEEN:

SRI H.R.KRISHNAPPA
S/O H.RANGAPPA
AGED ABOUT 55 YEARS
WORKING AS MEMBER SECRETARY
MALUR PLANNING AUTHORITY
MALUR
KOLAR DISTRICT - 563 130.
                                             ... PETITIONER

(BY SRI SATHISH K., ADVOCATE)

AND:

1.   THE STATE OF KARNATAKA
     DEPARTEMNT OF URBAN DEVELOPMENT
     (TOWN PLANNING)
     REPRESENTED BY ITS
     PRINCIPAL SECRETARY
     VIKASA SOUDHA
     BENGALURU - 560 001.

2.   THE STATE BY KARNATAKA
     LOKAYUKTHA POLICE
     REPRESENTED BY ITS DEPUTY
     SUPERINTENDENT OF POLICE
                                 2



     CHIKKABALLAPURA DISTRICT - 577 204.
                                                   ... RESPONDENTS

(BY SMT.K.P.YASHODHA, HCGP FOR R1;
    SRI B.B.PATIL, SPL.PP FOR R2)

     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 SPECIAL CASE
NO.33/2021 PENDING ON THE FILE OF PRINCIPAL DISTRICT AND
SESSIONS JUDGE, CHIKKABALLAPURA (ANNEXURE-M); QUASH THE
IMPUGNED CHARGE SHEET DTD 05.04.2021 FILED BY THE R2 IN
SPECIAL CASE NO.33/2021 ANNEXURE-L AND ALL FURTHER
PROCEEDINGS IN SPECIAL CASE NO.33/2021 PENDING ON THE
FILE   OF   PRINCIPAL DISTRICT    AND  SESSIONS    JUDGE,
CHIKKABALLAPURA ANNEXURE-M IN SO FAR AS THE PETITIONER
IS CONCERNED ACCUSED NO.1.



     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 26.07.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-


                               ORDER

The petitioner is before this Court calling in question proceedings in Special Case No.33 of 2021 pending before the Principal District and Sessions Judge, Chikkaballapura arising out of Crime No.12 of 2019 registered for offences punishable under Section 7(a) and 7A of the Prevention of Corruption Act, 1988 ('the Act' for short). The petitioner is accused No.1.

2. The facts, as projected by the prosecution, are as follows:

The petitioner is in the substantive cadre of Assistant Director of Town Planning. At the relevant point in time, the petitioner was working as Assistant Director of Town Planning, Chikkaballapura Urban Development Authority, Chikkaballapura. One Dr. Ananda Kumar forms a layout in Sy.Nos.51/1 and 52/1 situated at Kuppahalli Village, Chikkaballapura Taluk and District. Necessary application was preferred before the Authorities seeking permission.

On 15-10-2018, the Panchayat Development Officer communicates to the Commissioner, Urban Development Authority, Chikkaballapura giving no objection for formation of 40% sites. This no objection was submitted to the Commissioner, Chikkaballapura Urban Development Authority, who in turn seeks requisite documents and on compliance thereto, accorded permission for formation of sites. Dr. Ananda Kumar forms the sites and seeks release of sites. It is then the petitioner opining that the file to be placed before the Urban Development Authority in the next meeting returned the file to the Commissioner. One N. Ramanjinappa who claims to be the cousin brother of Dr. Ananda Kumar registers a 4 complaint before the then Anti Corruption Bureau ('ACB' for short), Chikkaballapura alleging that the petitioner has demanded illegal gratification of `9,00,000/- on behalf of the Commissioner, Chikkaballapura Urban Development Authority. The Commissioner then was one Dr. Prajna Ammembal. The complaint was registered on 16-10-2019 and pursuant to the complaint a crime in Crime No.12 of 2019 comes to be registered by the ACB. Pursuant to registration of crime, a trap was sought to be laid in the office of the Urban Development Authority, Chikkaballapura, in the trap, as the mahazar indicates, an amount of `3,00,000/- was seized from one N.Achhut Kumar who is an architect and is the proprietor of Vinayaka Civil Engineering and Consultants.

3. It is the averment in the petition that Ramanjinappa put pressure on the Deputy Superintendent of Police to bring the petitioner into the web of crime and, therefore, owing to such pressure, the ACB itself registered a crime against the petitioner in Crime No.174 of 2019 for offence punishable under Section 353 of the IPC. The ACB then completes investigation and seeks sanction from the hands of the 1st respondent/Department of Urban 5 Development to prosecute the petitioner on 2-11-2020. After about 4 months after the requisition for sanction, sanction is accorded on 16-03-2021. Pursuant to the order of sanction against the petitioner and another - N. Achhut Kumar, charge sheet is filed before the concerned Court in Special Case No.33 of 2021 for offences punishable under Sections 7(a) and 7A of the Act. The learned Sessions Judge then takes cognizance of the offence and issues summons to the petitioner. Taking of cognizance and issuing summons leads the petitioner to file an application under Section 239 of the CrPC seeking his discharge from the array of accused.

The learned Sessions Judge by his order dated 06-10-2022 rejects the application for discharge, against which, it appears the petitioner has preferred a criminal revision petition before this Court which is pending. The present petition is preferred on the score that the jurisdiction of revision is limited and the issue that is raised before this Court would cut at the root of the matter, therefore, the subject petition under Section 482 of the CrPC.

4. Heard Sri K.Sathish, learned counsel appearing for the petitioner, Smt. K.P. Yashodha, learned High Court Government 6 Pleader appearing for respondent No.1 and Sri B.B.Patil, learned Special Public Prosecutor appearing for respondent No.2.

5. The learned counsel for the petitioner Sri K. Sathish would contend that nowhere in the compliant or in any of the proceedings the name of the petitioner does figure. A trap is laid not on the petitioner but on one Achhut Kumar. It is the statement of Achhut Kumar that leads the petitioner into the web of crime. Though the trap did not lead to the petitioner, the ACB itself has registered a complaint against the petitioner owing to the pressure put on it by Ramanjinappa. It is his case that the file for the work to be done was pending on the table of Dr. Prajna Ammembal and not with the petitioner. There is no recovery of any amount or any file from the hands of the petitioner. Above all, the learned counsel would submit that the very act of grant of sanction by the Minister in-charge of the Department is contrary to law as the petitioner is a Group-A Officer and he can be removed from service only by the Cabinet.

Therefore, sanction for prosecution ought to have been placed before the Cabinet and the Cabinet granting sanction. It is his 7 submission that this would cut at the root of the matter and vitiate the entire proceedings.

6. On the other hand, the learned Special Public Prosecutor appearing for the 2nd respondent would vehemently refute the submissions to contend that the Minister in-charge is the Competent Authority in terms of Transaction of Business Rules, 1977 and the Schedule thereunder, as under Section 19(4) of the Act it is the Minister who has to grant the sanction for prosecution.

Therefore, the plea that sanction has been accorded by an incompetent Authority is erroneous. The file was placed before the Cabinet and on that basis, the sanction is accorded. He would further contend that this Court had allowed Writ Petition No.736 of 2018 on this very ground and the Lokayukta had preferred a Special Leave Petition before the Apex Court in S.L.P.No.10018 of 2021. The Apex Court has remanded the matter back to the hands of this Court for fresh consideration. Therefore, he would submit that the ground that is urged, which according to the learned counsel for the petitioner would cut at the root of matter, is not available to the petitioner.

7. Insofar as merit of the matter is concerned, it is his submission that Section 7 of the Act would indicate that a public servant who would attempt to obtain from any person undue advantage for himself or through any other person to perform a public duty would come within the ambit of Section 7(a) or Section 7A of the Act, as the case would be. Therefore, it is for the petitioner to come out clean in a full blown trial and the remedy under Section 482 of the CrPC is not the one that should be exercised in favour of the petitioner.

8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

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.12 of 2019 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 9 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,--

(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 10 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:

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. 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, 12 in the case at hand, sanction 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 KARNATAKA1 answering 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:

"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;

Writ Petition No.43262 of 2017 decided on 17.02.2022 13

(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;

(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;

(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 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 15 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.

13. 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 PARRIKAR AND OTHERS (2010)11 SCC 374 wherein 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 16 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 667 while 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.

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 17 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 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) 18 ..., 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" and "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 19 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 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 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 21 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 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 22 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 335 has 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.

*** 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 23 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 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 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 25 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 186 which 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 Court in 26 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 2 Writ Petition No.736 of 2018 27 if the High Court after examining the governing rules was to take the same view of the matter.

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 08-02-2023 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 28 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 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 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 30 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 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 31 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 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 NANJAPPA and B. SHIVASHANKAR (supra). For the reasons rendered by this court in B. 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. In the light of the issue standing answered by this Court in the cases of B. SHIVASHANKAR and LAKSHMAN RAO 32 PESHVE (supra) both of which have followed the judgment in the case of NANJAPPA (supra), I proceed to pass the following:

ORDER

(i) Writ Petition is allowed.

(ii) Proceedings in Special Case No.33 of 2021 pending before the Principal District and Sessions Judge, Chikkaballapura concerning FIR No.12 of 2019 stand quashed.

Sd/-

JUDGE bkp CT:MJ

Unlock Advanced Research with PRISMAI

Karnataka High Court