Bangalore District Court
The State Of Karnataka vs Mr.N.Munnoji Rao on 9 January, 2017
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT, BENGALURU.
(CCH-78)
PRESENT: SRI MANJUNATH NAYAK,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: 9th JANUARY 2017.
Spl. C.C.No. 122/2010
*****
COMPLAINANT: The State of Karnataka,
Rep by Inspector of Police,
Karnataka Lokayuktha Police,
Bengaluru City Wing,
Bengaluru.
(Rep by Sri S.P.Hubballi, Public
Prosecutor)
V/s
ACCUSED: Mr.N.Munnoji Rao, Aged 52 years,
S/o Late Narayana Rao,
Police Constable No.893,
Armed Reserve Police,
Motor Vehicle Section, No.2,
DCP Traffic East division,
Shivajinagara, Bengaluru,
Parental Department
G.Catagory, CAR (South)
Bengaluru City,
Presently R/o No.33, Manikanta Nilaya,
Laxmi Talkies Road,
2 Spl. C.C. No.122/2010
Ramamurthynagara,
Bengaluru 560 048,
Permanent R/o No.87, Medahalli,
Ramamurthynagara Post,
Bengaluru 560 048.
(Rep by Sri B.J.Prakash Singh
Advocates)
*****
1. Nature of Offence: Offence punishable under
Sec.7, 13(1)(d)R/w Sec.13(2) of
Prevention of Corruption Act 1988.
2. Date of Commission 03-03-2009.
of offence:
3. Date of First Information 03-03-2009.
Report:
4. Date of Arrest: 03-03-2009.
5. Date of Commencement 26-07-2013.
Of recording of evidence:
6. Date of Closing of evidence: 29-07-2016.
7. Date of Pronouncement of 09-01-2017.
Judgment.
8. Result of the case: Accused is discharged.
^^^^^
JUDGMENT
The Police Inspector of Karnataka Lokayuktha Police, City Wing, Bengaluru City, has charge sheeted the above named accused with an allegations that the accused has committed the offence punishable 3 Spl. C.C. No.122/2010 under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988 (In short PC.Act).
2. The case of the prosecution, in brief is as follows:
The Accused, being a public servant, was working as Police Constable in the Armed Reserve Police and deputed to work at the Motor Vehicle Section in the office of Assistant Commissioner of Police, East, Shivajinagara, Bengaluru. One Shivaramu, who was working as Assistant Sub-Inspector in the Mico layout Traffic Police Station, has lodged a complaint before the Lokayuktha police by contending that, he was allotted with a two wheeler vehicle bearing Reg.No.KA-02-G-
749. In respect of releasing the amount relating for repairing the said vehicle, complainant approached the accused. The accused demanded the bribe amount of Rs.2,000/- from the complainant for sanctioning the amount and complainant paid a sum of Rs.500/- to the accused.
On 26-02-2009, when the complainant again approached the accused with a RTO report, accused demanded further bribe amount of Rs.1,500/-. Since the complainant was not willing to pay the bribe amount, he has lodged the complaint before the Lokayuktha police on 03-03-2009. On the basis of the said complaint, Lokayuktha police have registered the FIR in Cr.No.20/2009. The Investigating Officer has secured the witnesses and conducted the pre trap proceedings in 4 Spl. C.C. No.122/2010 their presence and drawn the pre-trap mahazar. On 03-03-2009, accused was trapped by the Lokayuktha police, while he was receiving the remaining bribe amount of Rs.1,500/- from the complainant. The accused was arrested by the Lokayuktha Police and after conducting the investigation, Investigating Officer has submitted the final report before the sanctioning authority and after obtaining the sanction, Lokayuktha police have filed the charge sheet before this court by alleging that the accused has committed the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
3. This court took the cognizance and accused produced before this court was enlarged on bail. The accused was provided with the copy of the charge sheet and its enclosures. This court heard both the parties on the charge and having found prima facie grounds, framed charges against the accused for the offence punishable under Sec.7 and 13(1)(d)R/w Sec.13(2) of the Prevention of Corruption Act 1988. The accused pleaded not guilty and claimed to be tried.
4. To bring home the guilt of the accused, prosecution examined 7 witnesses as PW.1 to 7 and got marked Ex.P-1 to P-37 documents and MO.1 to 15 material objects.
5 Spl. C.C. No.122/2010
5. This court recorded the statement of the accused as provided under Sec.313 of Cr.P.C. The accused denied all the incriminating evidence appearing against him. The accused has not let in any defence evidence on his behalf. But, during the course of cross- examination of prosecution witnesses, accused got marked one document as Ex.D.1.
6. I have heard the arguments of both the parties.
7. The points, that arose for my consideration are:
1. Whether there is valid sanction to prosecute the accused?
2. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as APC 893, Motor vehicle section, Accounts Branch (2) (Traffic) East division, Shivajinagara, Bengaluru, for the purpose of releasing the amount relating to the repairing of the official vehicle allotted to the complainant, Sri Shivarama ASI, demanded illegal gratification of Rs.2,000/- and accepted Rs.500/- as illegal gratification on 24-02-2009 and accepted the balance illegal gratification of Rs.1,500/- from the complainant on 03-03-2009, in his office at Shivaji Nagara Bangalore, so as to render the official favour to him and there by committed the offence punishable under Sec.7 of the Prevention of Corruption Act 1988?6 Spl. C.C. No.122/2010
3. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as APC 893, Motor vehicle section Accounts Branch (2) (Traffic) East division, Shivajinagara, Bengaluru, on 24-02-2009 and 03-03-2009, abused his official position by illegal means and as a public servant, demanded and accepted the illegal gratification of Rs.2,000/- from the complainant against public interest and there by committed criminal misconduct and there by committed the offence punishable under Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988?
4. What order?
8. My answers for the above point is in the followings because of my below discussed reasons.
POINT No.1: IN THE NEGATIVE.
POINT No.2: DOES NOT SURVIVE FOR
CONSIDERATION.
POINT No.3: DOES NOT SURVIVE FOR
CONSIDERATION.
POINT No.4: AS PER FINAL ORDER.
REASONS
POINT No.1:
9. This point is relating to the validity of sanction, which was obtained to prosecute this accused. Since the accused is a public servant working as Police constable in Armed Reserve Force, 7 Spl. C.C. No.122/2010 Bengaluru and the allegations against him is about he committing the offences under Sec. 7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, obtaining the valid sanction from the competent authority is the statutory and mandatory requirements to prosecute the accused. Before proceedings to consider the question of validity of sanction, let me first discuss the evidence let in by the prosecution before this court.
10. CW.1, who was examined before this court as PW.1, deposed during the course of his evidence that, he was working as Assistant Sub-Inspector during the year 2009 at Mico layout Traffic Police Station and this accused was working as Police Constable in the Motor Vehicle Division in the office of DCP, East. PW.1 further deposed that the accused was designated with the work of maintaining the accounts and bills regarding repairs of the official vehicles allotted to the police officials. PW.1 further deposed that he was allotted with the vehicle bearing Reg. No. KA-02-G-749 for the purpose of traffic duties. PW.1 further deposed that on 02-08-2009, said vehicle required repairs and he approached the accused, who was in-charge of the work of repairs of the vehicles. PW.1 further deposed that accused asked him to get the quotation for the repairs and he obtained quotation from Bharat 8 Spl. C.C. No.122/2010 Motors for Rs.17,000/-. PW.1 further deposed that accused has returned the said quotation by saying that it should be below Rs.14,000/-. PW.1 further deposed that when he met the accused, again he enquired him about the number of Kilometers, to which the vehicle was run and when he said that it was 46,000, accused told that it was too much and he has to face the consequences of suspension or recovery from his salary. PW.1 further deposed that accused asked him to pay Rs.2,000/-, as he has to spend Rs.1,000/- in the office of the commissioner. PW.1 further deposed that he borrowed an amount of Rs.500/- from his friend Shivakumar and paid the same to the accused on 24-02-2009. PW.1 further deposed that he got the vehicle inspected by the RTO, Rajajinagara and again approached the accused on 26-02-2009. PW.1 further deposed that accused told him to bring the balance amount. PW.1 further deposed that on 02-03-2009 he went to the Lokayuktha office and gave oral complaint and Lokayuktha Inspector gave him tape recorder and asked him to record the conversation between him and the accused. PW.1 further deposed that while talking with the accused, he told the accused that he has paid Rs.2,000/-, just to get words from him regarding demand and accused spoke with him and said that he received Rs.500/- and not Rs.1,000/-. PW.1 further deposed that thereafter he went to the Lokayuktha office 9 Spl. C.C. No.122/2010 again and lodged the complaint as per Ex.P.1. PW.1 further deposed that Lokayuktha Police have secured two witnesses by name Chidanandamurthy and Shivakumar and in their presence, he produced the amount of Rs.1,500/-, which consists of two currency notes of Rs.500/- each and five currency notes of Rs.100/- each. PW.1 further deposed about the lokayuktha police conducting the pre trap proceedings in his presence and drawing of pre trap mahazar. PW.1 further deposed that, before lodging the complaint, he has recorded the conversation with the accused in the voice recorder and produced the same before the Lokayuktha Police. PW.1 further deposed that he was instructed by the Lokayuktha Police to pay the amount to the accused only when demanded by him and give the signal by wiping his face. PW.1 further deposed that Lokayuktha Police gave him a audio cassette to record the conversation between him and the accused. PW.1 further deposed that thereafter they went to the DCP Traffic Office at Shivajinagara, Bengaluru and their vehicle was stopped about one kilometer away from the office of the accused. PW.1 further deposed that he and Chidananadamurthy went to the office of the accused and he was arranging new tires and enquired the accused about his work and accused asked him about the balance amount and he told that he has brought Rs.1,500/-. PW.1 further deposed that 10 Spl. C.C. No.122/2010 when he gave the said amount, accused received through his right hand and kept in his left shirt pocket. PW.1 further deposed that then he gave the signal to the Lokayuktha Police, who came inside the office and he shown the accused to the Lokayuktha Police and told about demand and receiving of bribe amount by the accused. PW.1 further deposed that Lokayuktha Police have disclosed their identity and hand wash of the accused was made in a sodium carbonate solution, which turned into pink colour. PW.1 further deposed that accused has produced the currency notes received by him and same was seized. PW.1 further deposed that accused was asked to remove his shirt and his shirt pocket was also washed with the solution, which turned into pink colour. PW.1 further deposed that he has produced the tape recorder, which was seized by the Lokayuktha Police. PW.1 further deposed that the explanation of the accused was also sought and accused denied the demand and receipt of the bribe amount by him. PW.1 further deposed that metal seal, which was used for seizing the articles, was handed over to witness Shivaprasad and trap proceedings were also photographed.
11. One P. Shivaprakash, who was examined as PW.2, deposed during the course of his evidence that he was working as Senior 11 Spl. C.C. No.122/2010 Assistant in the office of the KPTCL, Bengaluru and CW.2 was his colleague. PW.2 further deposed that during April or May 2009, he was sent to the 3rd floor of KSRTC bus stand, Shivajinagara, by the controller of his office and he saw the accused in the 3rd floor of the bus stand. PW.2 further deposed that accused gave him a cash of Rs.1,500/- in the above premises and he gave the cash to one Ravishankar. PW.2 further deposed that on 03-03-2009, one Ravishankar has given the seal to him and he produced the same before this court as M.O.15. PW.2 admitted that his images were found in the Ex.P.3 to 10, Ex.P.16 and Ex.P.20.
12. One Chidanandamurthy, who was examined as PW.3, deposed during the course of his evidence that he was working as Assistant in the office of Superintending Engineer, KPTCL, Bengaluru and PW.2 is also working in their office. PW.3 further deposed that on the instruction of their Deputy Controller, he and PW.2 went to the chamber of CW.3 on 03-03-2009 at about 12.30 p.m. PW.3 further deposed that PW.1 Shivaram was in the chamber of CW.12 and they were told by CW.12 that they were secured to assist as witness in respect of complaint filed by PW.1. PW.3 further deposed about the lokayuktha police conducting the pre trap proceedings in their 12 Spl. C.C. No.122/2010 presence and drawing of pre trap mahazar. PW.3 further deposed that CW.12 told PW.1 to give the currency notes to the accused and thereafter communicate the same by wiping the face with kerchief. PW.3 further deposed that he was told by CW.12 to accompany PW.1. PW.3 further deposed that a trap mahazar was drawn as per Ex.P.11. PW.3 further deposed that thereafter they went to the office of DCP Traffic office, Shivajinagar and he, along with PW.1, entered the office and the accused was not found. PW.3 further deposed that at about 5.30 p.m. accused came to the office and PW.1 asked accused as to whether his vehicle is ready or not. PW.3 further deposed that accused asked PW.1 as to whether the money is brought or not. PW.3 further deposed that PW.1 gave M.O.3 notes to the accused and accused, after receiving the same, kept the same in his left shirt pocket. PW.3 further deposed that thereafter CW.12 and his staff and PW.2 entered the office of the accused and PW.2 took M.O.3 notes from left side shirt pocket of the accused and their numbers were tallied with the numbers written in Ex.P.2. PW.3 further deposed that Lokayuktha Police have prepared sodium carbonate solution, in which the hand wash of the accused was made and said solution turned into pink colour. PW.3 further deposed that Lokayuktha Police have transmitted the recorded conversation of the accused with PW.1 and photographs 13 Spl. C.C. No.122/2010 were taken. PW.3 further deposed that shirt of the accused was removed and his left side shirt pocket was immersed in the solution and said solution turned into pink colour. PW.3 further deposed that accused gave the statement as per Ex.P.26. PW.3 further deposed that trap mahazar was drawn in the office of DCP as per Ex.P.23.
13. One T.C.Shivakumar, who was examined as PW.4, deposed during the course of his evidence that, during the year 2009, he was working as Police Constable in Mico Layout Traffic Police Station and PW.1 was working as Assistant Sub-Inspector. PW.4 further deposed that during the year 2009, accused was working as Police Constable in the DCP Traffic at Shivajinagar, and working in a motor transport branch in that office. PW.4 further deposed that on 24-02-2009 he was taken by PW.1 to the office of the accused in respect of repairing of the motor cycle, which was given to PW.1. PW.4 further deposed that at about 2.30 p.m., he along with PW.1 met the accused and accused recommended the concerned RTO for repair of the official motor cycle. PW.4 further deposed that accused has not obliged for the request of the PW.1 and threatened PW.1 for recommendation to keep him under suspension. PW.4 further deposed that, thereafter accused demanded Rs.2,000/- from PW.1 and he was not possessing that amount. PW.4 14 Spl. C.C. No.122/2010 further deposed that as per the request of PW.1, he gave Rs.500/- to the accused and the accused received the letter and gave a letter to RTO for inspection of the said motor vehicle. PW.4 further deposed that accused told PW.1 to pay the balance amount of Rs.1,500/- later.
14. CW.8 M.B.Naidu, who was examined as PW.5, deposed during the course of his evidence that from 30-07-2008 to 2011, he was working as DCP, City Armed Reserve Police. PW.5 further deposed that on 12-03-2009, he received a requisition from ADGP Lokayuktha seeking sanction to prosecute this accused. PW.5 further deposed that along with the said requisition, ADGP Lokayuktha has sent the copy of FIR, pre trap mahazar, trap mahazar, chemical analysis report, statement of witnesses and spot sketch. PW.5 further deposed that he has gone through all those records produced before him and found that it is necessary to issue sanction to prosecute the accused. PW.5 further deposed that, accordingly he has issued the sanction to prosecute the accused for the offences punishable under Sec. 7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, as per Ex.P.27.
15. One Mohammed Irshad, who was examined as PW.6, deposed during the course of his evidence that, during the year 2008 15 Spl. C.C. No.122/2010 to 2010, he was serving as a Police Inspector in the City Wing of Lokayuktha Police. PW.6 further deposed that on 03-03-2009, CW.1 appeared before him and lodged a complaint as per Ex.P.1, on the basis of which, he has registered the FIR in Cr.No.20/2009, as per Ex.P.28. PW.6 further deposed that, thereafter he secured the independent witnesses from the KPTCL office, by sending the requisition letter and accordingly CW.2 and 3 appeared before him. PW.6 further deposed that he gave the copy of the complaint to CW.2 and 3, who read the same and also enquired the complainant about the correctness of the complaint, who admitted the same. PW.6 further deposed that he has conducted the pre trap proceedings in their presence and also drawn the pre trap mahazar. PW.6 further deposed that complainant has produced the micro cassette containing recording of conversation between him and the accused and recordings of the said conversation was displayed and it was also transcripted. PW.6 further deposed that, he instructed the complainant and shadow witnesses that they have to pay the tainted amount to the accused when demanded by him and thereafter gave the signal by wiping his face with kerchief. PW.6 further deposed that he gave a small cassette to the complainant to record the conversation between him and the accused, while paying the tainted currency notes. PW.6 further 16 Spl. C.C. No.122/2010 deposed that pre trap proceedings were photographed as per Ex.P.3 to Ex.P.10. PW.6 further deposed that, thereafter they left towards the DCP Traffic Office at Shivajinagar and reached there at 3-00 p.m. and parked their vehicle few meters away from the DCP Office. PW.6 further deposed that at about 3.30 p.m. complainant and shadow witnesses entered the DCP Office and they followed them. PW.6 further deposed that at about 5-00 p.m. complainant gave the signal and immediately, he along with another witness and staff, entered the office of the accused. PW.6 further deposed that complainant has shown the accused as the person who received the tainted money from him and also told that accused has counted those notes and kept it in his left side shirt pocket. PW.6 further deposed that on enquiry accused disclosed his name and address and Sodium carbonate solution was prepared in two bowls and sample was taken from both the bowls. PW.6 further deposed that in the remaining solution in two bowls both the hands of the accused were immersed and they turned into pink colour. PW.6 further deposed that accused handed over the amount received by him and witnesses have verified those currency notes and they were tallied with the numbers shown in Ex.P.2. PW.6 further deposed that he has seized those currency notes and shirt of the accused was removed and his shirt pocket was washed in the 17 Spl. C.C. No.122/2010 sodium carbonate solution, which also turned into pink colour. PW.6 further deposed that complainant produced the micro cassette given to him and it was displayed in the presence of witnesses, but their conversations were not clear. PW.6 further deposed that he recorded the brief statement of complainant and shadow witnesses and accused has given the defence statement as per Ex.P.26. PW.6 further deposed that accused has produced the file relating to the complainant and same was seized. PW.6 further deposed that he has drawn the trap mahazar as per Ex.P.23 and trap proceedings were also photographed as per Ex.P.12 to Ex.P.22. PW.6 further deposed that he has handed over the metal seal to CW.3 by obtaining acknowledgement from him. PW.6 further deposed that he obtained the statement of complainant and witnesses and received the chemical analysis report on 05-08- 2009. PW.6 further deposed that on 11-03-2009, he received the service details and on 11-01-2010, he received the spot sketch from the Junior Engineer of PWD. PW.6 further deposed that he has obtained the model sample seal as per Ex.P.34 and recorded the statement of Junior Engineer. PW.6 further deposed that he recorded the statement of CW.10 on 05-08-2010 and statement of CW.9 and 11 on 04-03-2009. PW.6 further deposed that he recorded the statement of CW.8 on 18-08-2009 and received the sanction order from CW.8 on 18 Spl. C.C. No.122/2010 06-02-2010. PW.6 further deposed that on the same day, he filed the charge sheet before this court.
16. CW.5, Mohammed Sajjad Khan, who was examined as PW.7, deposed during the course of his evidence that, when he was working as Inspector of Administration and MTO at the office of Deputy Commission of police, Traffic East Division, Bengaluru City, accused was working as a MTO writer in their office. PW.7 further deposed during the course of his evidence that on 03-03-2009, in between 2-30 PM to 3-30 PM, CW.12 and his staff members, along with accused came to his office and informed that they have trapped accused and requested them to assist them in drawing the mahazar. PW.7 further deposed that as per request of CW.12, he has certified the log book of the two wheeler bearing KA-02-G-749, which was allotted to CW.1 and gave it to CW.12 as per Ex.P.35. PW.7 further deposed that as per request of CW.12, he has given the copy of the attendance book of their office to him as per Ex.P.37. PW.7 further deposed that as per request of CW.12, he has certified the file relating the inspection of the vehicle to him as per Ex.P.31. PW.7 further deposed that he has given a report relating to the duties of accused in their office to CW.12 as per Ex.P.36.
19 Spl. C.C. No.122/2010
17. As the accused is a public servant working as a police constable in the Armed Reserve Force at Bengaluru, obtaining a valid sanction from the competent authority is a statutory and mandatory requirement to prosecute the accused, as he was charged for the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act. The prosecution claims that the Assistant Commissioner of Police, CAR South Bengaluru is the competent authority to accord the sanction to prosecute the accused under Sec. 23-B of the Karnataka Police Act, as he is empowered to dismiss the accused from his service and accordingly, he has accorded the sanction to prosecute the accused. The prosecution has cited the sanctioning official as CW.8 in the charge sheet and examined him before this court as PW.5. The sanction order issued by PW.5 is marked as per Ex.P.27.
18. The accused has disputed the validity of sanction on more than one ground. According to the accused, all the materials collected by the investigating agency during the course of investigation have not been produced before the sanctioning authority, while getting the sanction from him. According to the accused, there is no application of mind by the sanctioning authority, while according the sanction to prosecute the accused. By relying upon the statement given by PW.5, 20 Spl. C.C. No.122/2010 during the course of his cross-examination, it was argued before this court on behalf of the accused that, sanctioning authority has put the signature on draft sanction order sent by the Lokayuktha Police in a mechanical manner, without verifying the documents. Another ground upon which the accused disputed the validity of sanction is that, as per Ex.P.27, sanction order was issued under Sec.19(1)(c) of the Prevention of Corruption Act. According to the accused, though he was serving in the police department, still he is a State Government employee. Therefore, Sec.19(1)(c) of the Prevention of Corruption Act 1988 is not applicable for issuing the sanction to prosecute him. It is mainly on these grounds, accused tried to dispute the validity of sanction accorded to prosecute him.
19. Let me consider some of the decisions relied upon by the learned counsel for the accused, in support of his arguments, in disputing the validity of sanction. One of the decision relied upon by the accused is the decision of Allahabad High Court reported in 2002(2) Crimes 198 (Udai Narain V/s State of U.P. through CBI). In that particular case, employee of the Union Government was prosecuted on the basis of the sanction accorded by the Finance Minister, who has put only his signature on the sanction file and wrote nothing. The sanction was accorded under Sec.19(1)(c) of the 21 Spl. C.C. No.122/2010 Prevention of Corruption Act 1988, though the accused in that case was employed under the Union Government. Therefore, it was held by the Hon'ble Allahabad High Court that when the accused is an employee under the Union Government, sanction ought to have been accorded under Sec. 19(1)(a) and not under Sec.19(1)(c) of the Prevention of Corruption Act 1988.
20. Another decision relied upon by the learned counsel for the accused is the decision of Hon'ble Supreme Court reported in 1979 Supreme Court Cases (Cri) 926 [(1979) 4 SCC 172] (Mohd. Iqbal Ahmed V/s State of Andhra Pradesh). It was held in the above decision that the prosecution has to show before the court that the sanctioning authority has applied its mind before according the sanction. It was further held that, no presumption can be drawn regarding the satisfaction arising on facts before according the sanction and in the absence of valid sanction, whole prosecution is invalid.
21. One more decision relied upon by the accused is the decision of Hon'ble Supreme Court reported in 2015 SAR (Criminal) 939 (Nanjappa V/s State of Karnataka). While discussing in length regarding the requirement for having valid sanction to prosecute the 22 Spl. C.C. No.122/2010 public servant, Hon'ble Supreme Court, in the above referred decision, has also considered the question as to the stage when the question of validity has to be considered and the procedures to be adopted by the trial court, when it is found that there is no valid sanction, even after the trial and conclusion of evidence.
22. Another decision relied upon by the accused is the decision of Hon'ble Supreme Court reported in 2007 SAR (Criminal) 845 (State of Karnataka V/s Ameer Jan). It was held in the above decision that, before passing an order of sanction, entire record containing the materials collected against the accused should be placed before the sanctioning authority. Even though in that particular case, sanctioning authority was examined, he did not produce the final report and same was also not brought on record. Therefore, the Hon'ble Supreme Court held that the sanction is invalid.
23. One more decision relied upon by the accused is the decision of Hon'ble Karnataka High Court reported in 2010(2) KCCR 1010 (Babappa V/s State by Lokayuktha Police, Gulbarga). It was held in the said decision that, if the sanction is accorded without making reference to the records, it would be nullity, being suffering from vice of total non-application of mind by the sanctioning authority. 23 Spl. C.C. No.122/2010
24. Another decision relied upon by the learned counsel for the accused in support of his arguments is the decision of Hon'ble High Court of Karnataka reported in 2001 (1) Crimes 315 (J.S.Sathyanarayana V/s State by Inspector of Police, Karnataka Lokayuktha, Madikeri). It was held in the above decision that, sanction order for prosecution of an accused under Prevention of Corruption Act, on the face of it, must indicate to the Court clearly that sanctioning authority has evaluated material placed before it and has come to conclusion that case warranted a prosecution. Keeping in mind, ratio laid down in the above decisions, I have to consider as to whether there is a valid sanction by the competent authority to prosecute the accused.
25. There is no dispute regarding the authority and competency of PW.5 to accord the sanction to prosecute the accused. As I said earlier, validity of sanction has been disputed on the ground that all the materials collected by the investigating agency has not been produced before the sanctioning authority and there is no due application of mind by the sanctioning authority before according the sanction to prosecute the accused and the sanction has not been issued under the proper provision of law, as the accused is a State Government employee and Sec. 19(1)(b) of the Prevention of 24 Spl. C.C. No.122/2010 Corruption Act is applicable to him and not Sec. 19(1)(c) of the Prevention of Corruption Act, which was invoked to accord the sanction order as per Ex.P.27.
26. Now, let me reproduce the examination in chief of PW.5, who is the sanctioning authority and who has accorded the sanction to prosecute the accused. PW.5 in his examination in chief has deposed as follows:
3. On 25-08-2009 I received a requisition from ADGP Lokayuktha seeking permission to prosecute this accused.
4. Along with the said requisition, ADGP Lokayuktha has sent the FIR, pre trap mahazar, trap mahazar, chemical analysis report, statement of witnesses and spot sketch. I have gone through all those records before me and found that it is necessary to issue sanction to prosecute this accused. Accordingly I have issued the sanction to prosecute this accused for offence punishable u/s 7, 13(1)(d) and 13(2) of Prevention of Corruption Act. I identify the sanction order issued by me and same is marked as per Ex.P.27 and signature of the witness is marked as per Ex.P.27(a)."
27. Above statement of PW.5 goes to show that PW.5 has received a requisition from the ADGP Lokayuktha seeking sanction to prosecute the accused. So far as the documents, which are sent to him 25 Spl. C.C. No.122/2010 along with the said requisition, PW.5 said that Lokayuktha Police have sent him FIR, pre trap mahazar, trap mahazar, chemical analysis report, statement of witnesses and spot sketch. PW.5 further said that he has gone through all those records produced before him and found that it is necessary to issue the sanction to prosecute the accused and accordingly he has issued the sanction to prosecute the accused for the alleged offences. PW.5 has identified the order issued by him and accordingly, it was marked as per Ex.P.27.
28. The careful reading of the above statement given by PW.5 in between the lines goes to show that PW.5 has not said that he was prima facie satisfied about the commission of offences by the accused and accordingly, he has issued the sanction. Rather, PW.5 said that after going through the records, he found that it is necessary to issue the sanction and accordingly he has issued the sanction. This statement would create some doubt in the mind of this court regarding application of mind by the sanctioning authority and he being satisfied himself about the prima facie case made out for issuing the sanction.
29. Now, it is relevant to refer some of the statement given by PW.5 during the course of his cross-examination. It was admitted by PW.5 that draft copy of Ex.P.27 was sent to him along with the 26 Spl. C.C. No.122/2010 requisition and he put the signature for the same and returned back to the Lokayuktha Police. So, there is a clear admission by PW.5 that he put the signature for the draft copy sent to him along with the requisition by the Lokayuktha Police and returned the same. Further, PW.5 said that he has not referred in Ex.P.27 sanction order about the name of the independent witnesses, who have participated for the pre trap and trap proceedings and actual role played by them. PW.5 further said that the Lokayuktha Police have not sent the charge sheet to him along with the requisition. PW.5 further said that he has not verified as to who are all the witnesses examined by the Investigating Officer in respect of this case. All these statement given by PW.5, coupled with he himself saying that he put the signature for the draft copy sent to him by the Lokayuktha Police, also coupled with the fact that in his examination in chief, he is not saying that he was prima facie satisfied about the case made out against the accused, would all puts a question mark as to the application of mind by the sanctioning authority before according the sanction to prosecute the accused.
30. The learned Public Prosecutor, in support of his arguments in justifying the validity of sanction has pressed into service decisions of Hon'ble Delhi High Court reported in 2013(4) Crimes 1 (Del.) (Darshan Lal Dhawan V/s CBI and another) and 2013 (4) 27 Spl. C.C. No.122/2010 Crimes 90 (Del) (Parmanand V/s CBI). It was held in those decisions that, merely because a draft sanction order was received from CBI by the sanctioning authority, will in itself would not vitiate the sanction, if otherwise the valid sanction granted after due application of mind. So, ratio laid down in the above decisions is very clear that, even if the investigating agency sends the draft sanction order, only on the basis of the same, this court cannot hold that there is no application of mind or there is valid sanction. In spite of the draft sanction order being sent, if there is an evidence to show that there is due application of mind by the sanctioning authority, still this court can hold the sanction as valid one. Hence, now heavy burden lies upon the prosecution to establish before the court that there is application of mind by the sanctioning authority, before according the sanction to prosecute the accused.
31. In fact, prosecution has indirectly admitted before this court that the evidence of PW.5, though is a sanctioning authority, is not fully in support of their case, to prove the valid sanction. After the prosecution closed its evidence and the statement of the accused was recorded under Sec.313 of Cr.P.C. and when the case was posted for arguments, learned Public Prosecutor has come up with the application 28 Spl. C.C. No.122/2010 under Sec.311 of Cr.P.C. to recall PW.5 for cross-examination, by treating him as a hostile witness. That application was seriously objected by the accused. After hearing both the parties on the said application, this court vide its order dated: 05-10-2016, has rejected the application filed by the prosecution under Sec.311 of Cr.P.C. In the said application, prosecution contended that though PW.5 has supported the prosecution case during the course of his examination in chief, he has given some ambiguous answer and turned hostile to the prosecution case during the course of his cross-examination. Therefore, it is necessary to re-examine the PW.5 and cross examine him. This court, while rejecting the application filed by the prosecution under Sec. 311 of Cr.P.C., held that merely because PW.5 has given some answer against the prosecution case during the course of his cross-examination, cannot be a ground to treat him as hostile witness and cross examine him. It was also observed by this court in its order dated:05-10-2016 that even if PW.5 has given some answers against the prosecution and prosecution has got right to cross-examine him, it should have been made on the date when the PW.5 was cross- examined by the prosecution and not on the subsequent dates, that too after the closure of prosecution evidence and after recording the statement of accused under Sec. 313 Cr.P.C. and when the case was 29 Spl. C.C. No.122/2010 set down for final arguments. It is because of all these reasons, this court has rejected the application filed by the prosecution under Sec. 311 of Cr.P.C. to recall PW.5 for cross-examining him by treating him as hostile witness. It is not made known to this court as to whether the prosecution has challenged the said order passed by this court. Anyhow, application filed by the prosecution goes to show that, it has admitted that PW.5 has given some answer against its case and not supported it case regarding the issuance of sanction after due application of mind.
32. As I said earlier, one of the ground upon which the prosecution has disputed the validity of sanction is that all the documents collected by the investigating agency have not been produced before the sanctioning authority. In the above referred decision of Hon'ble Supreme Court in State of Karnataka V/s Ameer Jan and decision of Hon'ble High Court of Karnataka in Babappa V/s State by Lokayuktha Police, Gulbarga, it was held that the investigating agency is required to produce all the documents collected by them before the sanctioning authority and the sanctioning authority has to consider all those documents and apply its mind and after satisfying, sanction can be accorded.
30 Spl. C.C. No.122/2010
33. Keeping in mind the ratio laid down in the above two decisions, if this court draw its attention to the sanction order produced as per Ex.P.27, it goes to show that along with the requisition letter Lokayuktha Police have sent the final report to the sanctioning authority and also sent the copy of the complaint, FIR, pre trap mahazar, trap mahazar, chemical analysis report, spot sketch, statement of seven witnesses, file relating to the demand of bribe amount and the explanation given by the accused. So, as per the sanction order, all those materials were sent to the sanctioning authority. If I draw my attention to the above referred statement of PW.5 given during the course of his examination in chief, though PW.5 said about some of the documents sent to him, he has not referred about final report and copy of the complaint, copy of file relating to the demand of bribe and copy of the explanation given by the accused. So, though sanction order refers about some other documents, in his examination in chief, PW.5 has not referred about some of those documents and he going through all those documents before according the sanction.
34. Ex.P.27 sanction order and the evidence of PW.5 go to show that some material documents were not at all sent to the sanctioning 31 Spl. C.C. No.122/2010 authority. One of those documents would be the report given by CW.5/PW.7 regarding the duties of the accused and also the statement of CW.5/PW.7 recorded under Sec.161 of Cr.P.C. CW.5 is the senior official of the accused and he was serving as an Inspector Administration and MTO Officer in the office of the Deputy Commission of Police, Traffic East Division, Bengaluru. According to the prosecution, after the trap, Lokayuktha Police informed CW.5/PW.7 and as per the request of the Lokayuktha Police, he has given them copy of some documents and also a report regarding duties of the accused as per Ex.P.36. The charge sheet also goes to show that the Investigating Officer has recorded statement of CW.5/PW.7 under Sec.161 of Cr.P.C. Said statement and the report given by him as per Ex.P.36 were not at all sent to the sanctioning authority, as there is no reference about the same, either in the Ex.P.27 sanction order or in the examination in chief of PW.5.
35. This court cannot simply ignore the factum of not sending of said report and statement of CW.5/PW.7, considering the specific defence of the accused in this case. It is the specific defence of the accused that, he was not working in the MTO Section and he is only a police constable of Reserve Force and he cannot be assigned with the clerical work and no official act or duty has to be performed by him in 32 Spl. C.C. No.122/2010 respect of the application filed by the complainant for releasing of the amount for repairing the official vehicle. The sanctioning authority, who was examined as PW.5, deposed during the course of his cross- examination that, since the accused was working as Armed Police, his duty was to escort the prisoners, VIPs and guard duty. PW.5 also deposed that the accused is not a competent official to issue permission to release the amount for repairing vehicles of the complainant. The prosecution claims that the accused has demanded the bribe amount from the complainant for the purpose of releasing the amount relating to the repairing of the official vehicle allotted to the complainant.
36. It is on the basis of the statement given by CW.5/PW.7 and report given by him as per Ex.P.36 prosecution has filed the charge sheet against the accused by holding that he has the official duty to be performed in respect of the application filed by the complainant and there was demand of bribe amount. When the main document like Ex.P.36 report and the Statement of CW.5/PW.7 is not produced before the sanctioning authority, I cannot understand as to how the sanctioning authority come to the conclusion that the accused has got official duty to perform in respect of file relating to the demand of 33 Spl. C.C. No.122/2010 bribe amount, before according the sanction to prosecute him. This is one of the circumstances to say that materials documents were not produced before the sanctioning authority and there is no due application of mind by the sanctioning authority.
37. The sanction order refers about the final report filed before the sanctioning authority. But, PW.5 has not said in his examination in chief that any such final report was produced before him. During the course of his cross-examination PW.5 said that the charge sheet was not produced before him. Again this would goes to show that all the materials collected by the investigating agency have not been produced before the sanctioning authority.
38. If any such final report is filed before the sanctioning authority and if it is the basis for issuing the sanction and if it is the basis for the sanctioning authority to satisfy himself for according the sanction, said final report would have been produced along with the sanction order. At-least the said final report would have been produced by the sanctioning authority before this court. Again in the decision of State of Karnataka V/s Ameer Jan the Hon'ble Supreme Court has high-lighted about non-production of the report, when the sanction was granted on the basis of the report and the sanctioning authority 34 Spl. C.C. No.122/2010 did not produce the report and it was also not brought on record of the court. Again this is one of the reasons for this court to say that some of the documents collected by the investigating agency was not produced before the sanctioning authority, while according the sanction.
39. Another ground upon which the accused has disputed the validity of sanction is that the accused is a State Government employee and any sanction to prosecute him has to be accorded under Sec. 19(1)(b) of the Prevention of Corruption Act. But, in this case, the sanction order as per Ex.P.27 was accorded under Sec. 19(1)(c) of the Prevention of Corruption Act. According to the accused, Sec. 19(1)(c) of the Prevention of Corruption Act is not applicable for issuing the sanction to prosecute any State Government employee and said provision is applicable to issue sanction to prosecute the Semi- Government employees and the employees of the Co-operative Society etc.
40. If I draw my attention to Ex.P.27 sanction order, it has been specifically referred in last para of page 3 that the sanctioning authority has issued the sanction to prosecute the accused by acting under Sec. 19(1)(c) of the Prevention of Corruption Act. The 35 Spl. C.C. No.122/2010 sanctioning authority, who was examined before this court as PW.5, during the course of his cross-examination, admitted that the accused is a State Government employee. It is on the basis of these two points, it was argued by the learned counsel for the accused before this court that there is no valid sanction to prosecute the accused. In this regard, learned counsel for the accused has also drawn the attention of this court to the decision of Hon'ble High Court of Allahabad reported in 2002(2) Crimes 198 (Uday Narayana V/s State of U.P. through CBI).
41. It is true that Sec.19(1)(b) of the Prevention of Corruption Act is applicable for issuing the sanction to prosecute the State Government employee. But, I am in disagreement with the arguments for the learned counsel for the accused that Sec. 19(1)(c) of the Prevention of Corruption Act is applicable only to the employees of Semi-Government Organizations and Co-operative Society. If this court carefully reads Sec.19(1)(c) of the Prevention of Corruption Act, said provision is applicable for issuing the sanction by the competent authority to remove the public servant from his office. Sec. 19(1)(b) of the Prevention of Corruption Act is applicable for issuing the sanction to prosecute any person who is employed in connection with the affairs of the State and is not removable from his office save by or with the 36 Spl. C.C. No.122/2010 sanction of the State Government, of that Government. The careful reading of both Sec.19(1)(b) and 19(1)(c) of the Prevention of Corruption Act makes it very clear that, if the sanction is to be accorded by the State Government, then Sec. 19(1)(b) of the Prevention of Corruption Act is applicable, whereas if the sanction has to be issued by the authority of competent to remove the public servant from his office, Sec. 19(1)(c) of the Prevention of Corruption Act is applicable. Again to clarify this point, if the sanction has to be accorded by the Governor or the Minister of the state government, then Sec. 19(1)(b) of the Prevention of Corruption Act is applicable, whereas if the sanction has to be accorded by the competent authority to remove the said public servant from his office, then Sec.19(1)(c) of the Prevention of Corruption Act is applicable.
42. In the above referred decision of Allahabad High Court reported in 2002(2) Crimes 198 sanction was accorded by the Union Government represented by the Minster. Therefore, it was held that Sec.19(1)(c) of the Prevention of Corruption Act is not applicable. Rather, Sec.19(1)(a) of the Prevention of Corruption Act is applicable because the sanction to prosecute him was issued by the Central Government represented by the Finance Minister.
37 Spl. C.C. No.122/2010
43. In this particular case the sanction to prosecute the accused was given by the authority, which is empowered to remove the accused from his service. As I said earlier, absolutely there is no dispute regarding authority of CW.8 to issue the sanction to prosecute the accused. If the sanction to prosecute this accused has to be given by the Minster or by the Governor, representing the State Government, then the sanction would have been issued under Sec. 19(1)(b) of the Prevention of Corruption Act and not under Sec. 19(1)(c) of the Prevention of Corruption Act. In the case on hand, sanction to prosecute the accused was accorded by an authority which is competent to remove from his service. Therefore, Sec.19(1)(c) of the Prevention of Corruption Act. Hence, I found no substance in the contention of the accused in disputing the validity of sanction on this score.
44. It is well established principle of Law, held through the catena of decisions of Hon'ble Supreme Court and Hon'ble High Court of Karnataka that, pendency of an official act before the accused towards the complainant is an essential requirement to constitute the offences under Sec.7 of the Prevention of Corruption Act. If the accused has got no official duty or act to be performed towards the 38 Spl. C.C. No.122/2010 complainant, then even if the demand and acceptance of the bribe amount is proved, offence under Sec. 7 of the Prevention of Corruption Act is not made out. In this particular case, on two grounds, accused contended that he has got no official duty to be performed in respect of the complainant. As per the prosecution case, demand of alleged bribe amount by the accused is to release the amount relating to repairing of the official vehicle allotted to the complainant. The accused contended that since he is working as a police constable in the Armed Force, his duty was to escort prisoners, VIPs and to perform guard duty. Therefore, he has got no official work relating to the release of amount for repairing the vehicle of the complainant.
45. The second ground upon which the accused disputed the pendency of official duty towards the complainant or official act to be performed by him is that, as per the Rule, if the expenses relating to repairing of the official vehicle is less then Rs.5,000/-, Deputy Commissioner of Police has the authority to release the amount and if the amount required for repairing of the vehicle is more than Rs.5,000/-, same has to be presented before the Commissioner of Police. According to the accused, since he is working in the office of Deputy Commissioner of Police, even if he has got any duty relating to 39 Spl. C.C. No.122/2010 releasing the amount in respect of repairing of vehicles, he has absolutely no duty to be performed in respect of repairing the complainant's vehicle, because as per the estimation produced by the complainant, cost of repairing was Rs.17,658/-, which is more than Rs.5,000/-. In this regard, the learned counsel for the accused has drawn the attention of this court to the evidence of CW.5/PW.7 and Ex.P.31. CW.5/PW.7, who is the senior official working in the office of Deputy Commissioner of Police, has given the report as per Ex.P.36, by stating that accused was performing the duty in their office relating to the repairing of the vehicle. During the course of his cross- examination, PW.7 admitted that, if the cost of repair exceeds Rs.5,000/-, bill has to be presented before the Commissioner of Police, who has to release the amount. PW.7 also admitted that, as per page 5 of Ex.P.31, estimation prepared and produced by the complainant shows that cost for repairing his vehicle is Rs.17,568/-. When the cost of repairing the vehicle exceeds Rs.5,000/-, application for releasing the amount cannot be presented before the Deputy Commissioner of Police, where the accused was serving. Rather the application for releasing the amount has to be presented before the Commissioner of Police. Under such circumstances, again it was not made known to this court as to how the sanctioning authority come to the conclusion 40 Spl. C.C. No.122/2010 regarding the pendency of the official work or official act to be performed by the accused in respect of the complainant's vehicle, before according the sanction to prosecute the accused. Neither the evidence of PW.5 nor the sanction order provides any explanation regarding the pendency of the official act before the accused, so as to demand and accept the bribe from the complainant. This would also give an indication that there is no proper application of mind by the sanctioning authority before according the sanction to prosecute the accused.
46. Above discussions made by me goes to show that some of the important documents were not produced before the sanctioning authority, while according the sanction. Though sanction order refers that final report has been produced before the sanctioning authority, PW.5, during the course of his evidence before this court, has not said that the final report was produced before him and that he has perused the same while according the sanction. The evidence of PW.5 goes to show that he put the signature for draft copy of sanction order sent to him by the Lokayuktha Police. Of-course, in the above referred decisions of Delhi High Court, it is held that the validity of sanction cannot be doubted merely because the draft sanction order was sent to the sanctioning authority, provided there is evidence to show the 41 Spl. C.C. No.122/2010 application of mind by the sanctioning authority. In this particular case, it is not that only the draft sanction order was sent to the sanctioning authority by the Lokayuktha police. As deposed and admitted by the sanctioning authority/PW.5, he put the signature for the same draft copy of the sanction order and sent back the same to the Lokayuktha police. This aspect coupled with the above stated reasons would clearly indicate that there is no application of mind by the sanctioning authority, before according the sanction.
47. The sanctioning authority, who was examined as PW.5, deposed during the course of his cross-examination that since the accused is working as a Police Constable in the Armed Reserve Police, his duty was to escort the prisoners, VIPs and guard duty. PW.5 also admitted that accused is not a competent official to issue permission to release the amount for repairing the vehicle of the complainant. The allegation against the accused is that he has demanded the bribe amount from CW.1 for releasing the amount relating to repairing of the official vehicle provided to him. The prosecution relies upon the evidence of CW.5/PW.7 and report given by him as per Ex.P.36 to show that the accused was deputed to attend the duty relating to repairing of official vehicle and release of the amount towards the 42 Spl. C.C. No.122/2010 same. Said report has not been produced before the sanctioning authority. As I said earlier, to attract the offence under Sec. 7 of the Prevention of Corruption Act, pendency of the official act or performance of an official duty relating to the complainant by the accused is essential requirement. If this requirement is not fulfilled, even the sanction to prosecute the accused for the offence punishable under Sec.7 of the Prevention of Corruption Act cannot be accorded. Under such circumstances, when the sanctioning authority knows that the duty of the accused is only to escort the prisoners, VIPs and guard duty, it is not explained by PW.5, either in his evidence or in the sanctioning order, as to how he came to know about the accused having an official duty or work relating to the complainant, so as to demand the bribe amount from him, when the report given by CW.5/PW.7 as per Ex.P.36 was not produced before him, while issuing the sanction. This aspect, coupled with the PW.5 himself saying that draft copy of Ex.P.37 sanction order was sent to him along with the requisition by the Lokayuktha police and he putting the signature for the same and returning back to the Lokayuktha Police, gives an indication that there is no due application of mind by the sanctioning authority. When the sanction has been given, without due application of mind, such a sanction order cannot be said as a valid sanction. 43 Spl. C.C. No.122/2010 Therefore, I hold that there is no valid sanction to prosecute the accused. Accordingly, I answer the point No.1 in the Negative.
POINT No.2 AND 3:
48. These two points are relating to the merits of the case and the allegations leveled against the accused about he demanding and accepting the bribe amount and thereby committing the criminal misconduct. In view of my findings on the point No.1, this court held that there is no valid sanction to prosecute the accused. Now the question before this court is as to whether this court has to give the findings on the merits of the case and on point No.1 and 2, when it is found that there is no valid sanction to prosecute the accused. To answer this question, it is necessary to refer a decision of Hon'ble Supreme Court reported in 2015 SAR (Criminal) 939 (Nanjappa V/s State of Karnataka). In-fact, this decision was relied upon by the learned counsel for the accused, in support of his arguments regarding the validity of sanction. In that particular case, Special Court held the trial against the accused for the offences punishable under Sec.7,13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act. After trial and recording of the evidence, while passing the Judgment, the learned Special Judge has held that there is no valid sanction to prosecute the accused. The learned Special Court has also considered 44 Spl. C.C. No.122/2010 the case on merits and held that the prosecution has failed to prove the guilt of the accused and accordingly the learned Special Court has proceeded to acquit the accused.
49. Being aggrieved by the same, Lokayuktha Police have approached the Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka has set aside the Judgment passed by the trial court and convicted the accused. Regarding validity of the sanction, Hon'ble High Court of Karnataka, in its Judgment, held that since the validity of sanction order was not questioned at appropriate stage, accused was not entitled to raise the same at the stage of conclusion of trial.
50. Being aggrieved by the said Judgment of the Hon'ble High Court of Karnataka, accused approached the Hon'ble Supreme Court wherein the Hon'ble Supreme Court has set aside the order of the Hon'ble High Court of Karnataka in convicting the accused and upheld the Order of the Special Court in acquitting the accused.
51. Now, it is relevant to consider some of the observations made by the Hon'ble Supreme Court in the above referred decision in Nanjappa V/s State of Karnataka. So far as the stage at which the 45 Spl. C.C. No.122/2010 dispute regarding the validity of sanction can be raised, it was held by the Hon'ble Supreme Court in para 15 of the Judgment that:
'The question regarding the 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 prosecution in accordance with law. If the trial Court proceeds, despite the invalidity attached to the sanction order, 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'.
52. So the above observation made by the Hon'ble Supreme Court is very clear that the question of validity of sanction can be raised at any stage of the proceedings. Even though this accused has not raised the question of validity of sanction at initial stage or before framing of charge, he cannot be precluded or prevented from raising the same at this stage, after trial and while passing the Judgment. The above observation made by the Hon'ble Supreme Court is also very clear that in spite of invalid sanction, if the trial court precedes with 46 Spl. C.C. No.122/2010 the trial, same shall be deemed to be non-est in the eyes of law, which would not prevent a second trial for the same offence upon granting valid sanction for such prosecution. The observation made by the Hon'ble Supreme Court is also very clear that, if the trial Court finds that there is no valid sanction, course available for the trial court is to discharge the accused and not to acquit him.
53. It is also relevant to refer the observation made by the Hon'ble Supreme Court in para 17 of the above referred decision in Nanjappa V/s State of Karnataka. Regarding the trial Court acquitting the accused on merits, in spite of holding that, there was no valid sanction, Supreme Court said that it is the only error, which was committed by the trial court. According to the Hon'ble Supreme Court, when the trial court found that the sanction is invalid, it would have been discharged the accused, rather than recording an order of acquittal on the merits of the case. So, the above observation of the Hon'ble Supreme Court is very clear that, even after trial and recording of evidence, if the trial court finds that there is no valid sanction, course open for the trial court is to discharge the accused with a liberty to the prosecution to file fresh charge sheet, by obtaining the valid sanction and even the second trial is not barred in 47 Spl. C.C. No.122/2010 such a situation. When the sanction is founds to be invalid, the trial court cannot decide the merits of the case, even it has held the trial and recorded the evidence. In view of the ratio laid down by the Hon'ble Supreme Court in the above referred decision, question of giving the findings on merits of the case and on points No.2 and 3 would not arise. Since the sanction is found to be invalid, only course available for this court is to discharge the accused. When the accused has to be discharged on the ground of invalid sanction, prosecution has got every right to file the charge sheet, after obtaining the valid sanction. If the fresh charge sheet is filed by obtaining the valid sanction, again the trial has to be held and finding has to be given on merits. Therefore, question of this court giving the findings on the merits of this case would not arise. Therefore, I answer the points No.2 and 3 as does not survive for consideration at this stage.
POINT No.4:
54. In view of my findings on the above points, since there is no valid sanction to prosecute the accused, he has to be discharged, with the liberty to the investigating agency to file fresh charge sheet by obtaining valid sanction from the competent authority. Accordingly, I proceed to pass the following order:
48 Spl. C.C. No.122/2010
ORDER The accused is discharged for the present for want of valid sanction to prosecute him.
It is open for the Lokayuktha police to file fresh charge against the accused in respect of very same charges, after obtaining the valid sanction from the competent authority.
****** (Dictated to the judgment-writer, after transcription, corrected by me and then pronounced by me in the open court on this the 9th day of January 2017) (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) ()()()()() ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: Shivaram PW.2: V. Shivaprakash PW.3: Chidananda Murthy PW.4: T.C. Shivakumar PW.5: M.B.Naidu PW.6: Mohammed Irshath PW.7: Mohammed Sajad Khan 49 Spl. C.C. No.122/2010 LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Complaint Ex.P.1(a)&1(b) : Signatures of PW.1 and PW.6 Ex.P.2: Currency detail sheet Ex.P.2(a)&(b): Signatures of PW.2. Ex.P.2(c )&(d): Signatures of PW.3 Ex.P.2(e & f): Signatures of PW.6 Ex.P.3 to 10: Photos. (Pretrap) Ex.P.3(a), 4(a), 5(a), 6(a), 7(a),8(a),9(a) & 10(a): Images of PW.2. Ex.P.11: Pre trap mahazar Ex.P.11(a): Signature of PW.1 Ex.P.11(b) to (g): Signatures of PW.2 Ex.P.11(h) to (m): Signatures of PW.3 Ex.P.11(n): Signature of PW.6 Ex.P.12 to 22: Eleven-photos (trap) Ex.P.16(a), 20(a): Images of PW.2. Ex.P.23: Trap mahazar Ex.P.23(a): Signature of PW.1 Ex.P.23(b) to (g): Signatures of PW.2 Ex.P.23(h) to (m): Signatures of PW.3 Ex.P.23(n): Signature of PW.6 Ex.P.24: Acknowledgment letter. Ex.P.24(a): Signature of PW.2. Ex.P.25: Portion of statement of PW.2. Ex.26: Explanation of the accused Ex.P.26(a): Signature of PW.3.50 Spl. C.C. No.122/2010
Ex.P.26(b): Signature of PW.6 Ex.P.27: Sanction Order Ex.P.27(a): Signature of PW.5 Ex.P.28: FIR Ex.P.28(a): Signature of PW.6 Ex.P.29 & 30: Copy of requisition Ex.P.29(a) & 30(a): Signatures of PW.6 Ex.P.31: Charge sheet documents (Page 29 to 57) Ex.P.32: Chemical analysis report Ex.P.33: Sketch of the spot Ex.P.34: Model of the sample seal Ex.P.34(a): Signature of PW.6 Ex.P.35: Copy of Log book Ex.P.36: Copy of report of duties Ex.P.37: Copy of attendance register LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: Sample Solution bottle MO.2: Hand wash solution of Shivaprakash MO.3: Cash of Rs.1500-00 (500-00 X 2 + 100-00X5) MO.4: Cover MO.5: Micro Cassette (Sony)(pretrap) MO.6: Cover MO.7: Sample solution bottle MO.8: Right hand wash of solution (accused) MO.9: Left hand wash of solution (accused) MO.10: Shirt pocket washing solution MO.11: Shirt 51 Spl. C.C. No.122/2010 MO.12: Cover MO.13: Cassette MO.14: Cover MO.15: 'N' metal seal LIST OF WITNESSES EXAMINED FOR ACCUSED:
-NIL-
LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1: Deposition of Chidanandamurthy.
(MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) 52 Spl. C.C. No.122/2010 (Judgment pronounced in the open Court vide separate judgment) ORDER The accused is discharged for the present for want of valid sanction to prosecute him.
It is open for the Lokayuktha
police to file fresh charge against the
accused in respect of very same
charges, after obtaining the valid
sanction from the competent
authority.
(MANJUNATH NAYAK)
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
(CCH-78)