Karnataka High Court
The State Of Karnataka vs The State Of Karnataka on 16 February, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 4838 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 4838 OF 2021 (GM-KLA)
BETWEEN:
THE STATE OF KARNATAKA
REPRESENTED BY INSPECTOR OF POLICE
KARNATAKA LOKAYUKTHA POLICE
CHITRADURGA
CHITRADURGA - 577 501.
...PETITIONER
(BY SRI.B.S.PRASAD, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF CO-OPERATIVE SOCIETIES
Digitally signed VIDHANA SOUDHA
by PADMAVATHI BENGALURU - 560 001
BK
REPRESENTED BY ITS
Location: HIGH
COURT OF UNDER SECRETARY.
KARNATAKA
2. KARNATAKA CO-OPERATIVE MILK PRODUCERS
FEDERATION LIMITED
KMF COMPLEX, P.B NO. 2915
DR.M.H.MARIGOWDA ROAD,
BENGALURU - 560 029
REPRESENTED BY ITS
MANAGING DIRECTOR.
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WP No. 4838 of 2021
3. B.C.SATHISH
S/O B.B.CHANDRASHEKARAIAH
AGED MAJOR
R/O NO. 1021,
10TH MAIN ROAD,
1ST BLOCK, 3RD STAGE
BASAVESHWARA NAGAR
BENGALURU - 560 079.
...RESPONDENTS
(BY SRI.M.VINOD KUMAR., AGA FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DTD 19.12.2016 PASSED BY THE R-1 VIDE
ANNX-E.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner-police wing of the Karnataka Lokayukta, Chitradurga is knocking at the doors of this Court seeking to quash an order dated 19.12.2016 which declines granting of sanction to prosecute the 3rd respondent. The petition is filed, after a delay of 5 years after the passage of the said order.
2. Heard Sri.B.S.Prasad, learned counsel appearing for petitioner and Sri.M.Vinodkumar, learned Additional Government Advocate appearing for respondent No.1.
-3- WP No. 4838 of 20213. Facts in brief are as follows:
A complaint comes to be registered against the 3rd respondent on 03.01.2014 alleging certain malpractices in the recruitment process of 103 posts to the Karnataka Co-operative Milk Producers Federation Limited. Based on the said complaint, a crime comes to be registered by the petitioner in Crime No.1 of 2014. After about 2 years and 3 months of conduct of investigation, an application/representation is made along with all the material to the Competent Authority seeking sanction to prosecute the 3rd respondent. The 1st respondent, after looking into the entire material, declines to accord sanction to prosecute the 3rd respondent as was requested by the petitioner. This refusal to accord such sanction is what drives the petitioner to this Court in the subject petition.
4. The learned counsel appearing for the petitioner would contend that the petitioner-police wing of the Lokayukta had conducted thorough investigation and had prepared a draft chargesheet and had placed all the material before the Competent Authority. The Competent Authority could not have looked into every other material and declined to accord -4- WP No. 4838 of 2021 sanction. Therefore, the order warrants interference and consequently, the Lokayukta to take the issue to its logical conclusion.
5. The afore-narrated facts are not in dispute. The issue in the lis as to whether the Competent Authority has to look into the entire material before according sanction and whether the petitioner/Lokayuktha would be an aggrieved person to call in question an order refusing to grant sanction by the Competent Authority need not detain this Court for long or delve deep into the matter, as this Court in the case of KARANATAKA LOKAYUKTHA v. STATE OF KARNATAKA in W.P.No.5248 of 2020 disposed on 16.02.2023 has held as follows:
"10. The afore-narrated facts, link in the chain of events and dates of occurrence of those events are not in dispute and therefore, are not reiterated. The question that arises for consideration is whether the competent authority while according or refusing to grant sanction for prosecution is entitled to consider the entire material before it and pass appropriate orders. In the event of refusal of grant of sanction whether the Investigating Agency can be considered to be an aggrieved person and call in question the said order of refusal of grant of sanction, before this Court under Article 226 of the Constitution of India.
11. Since the entire issue now revolves round sanction as obtaining under Section 19 of the Act, it is -5- WP No. 4838 of 2021 germane to notice the said provision of law. 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 directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding:-6- WP No. 4838 of 2021
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.
-7- WP No. 4838 of 2021(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 of the Act mandates that no Court shall take cognizance of an offence punishable under Sections 7, 11, 13 and 15 against a public servant. Therefore, sanction is imperative prior to the concerned Court taking cognizance of the aforesaid offence against a public servant. The competent authority is thus empowered to exercise its -8- WP No. 4838 of 2021 discretion for grant of sanction when such application is made by the Investigating Agency. Placing reliance upon Section 19, the contention of the learned counsel appearing for the petitioner is that the competent authority cannot look into any other material except the material placed before it which is collected during investigation and has to refuse or grant sanction only on such material. It is his emphatic submission that looking into entire material is not the power that is available to the competent authority at the stage of grant of sanction. The aforesaid submission of the learned counsel for the petitioner is unacceptable. It is trite law, in exercise of discretion, the competent authority has the power to grant sanction or refuse to grant sanction for prosecution. What material should be looked into at the time of granting sanction or refusing sanction for such prosecution is no longer res integra. The Apex Court in the case of MANSUKHLAL VITHALDAS CHAUHAN v. STATE OF GUJARAT1 considering an identical issue has held as follows:
"14. From a perusal of Section 6, it would appear that the Central or the State Government or any other authority (depending upon the category of the public servant) has the right to consider the facts of each case and to decide whether that "public servant" is to be prosecuted or not. Since the section clearly prohibits the courts from taking cognizance of the offences specified therein, it envisages that the Central or the State Government or the "other authority" has not only the right to consider the question of grant of sanction, it has also the discretion to grant or not to grant sanction.
... ... ...
19. Since the validity of "sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external 1 (1997) 7 SCC 622 -9- WP No. 4838 of 2021 force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.
... ... ...
32. By issuing a direction to the Secretary to grant sanction, the High Court closed all other alternatives to the Secretary and compelled him to proceed only in one direction and to act only in one way, namely, to sanction the prosecution of the appellant. The Secretary was not allowed to consider whether it would be feasible to prosecute the appellant; whether the complaint of Harshadrai of illegal gratification which was sought to be supported by "trap" was false and whether the prosecution would be vexatious particularly as it was in the knowledge of the Government that the firm had been blacklisted once and there was demand for some amount to be paid to the Government by the firm in connection with this contract. The discretion not to sanction the prosecution was thus taken away by the High Court.
... ... ...
34. Learned counsel for the State of Gujarat contended that the judgment passed by the High Court cannot be questioned in these proceedings as it had become final. This contention is wholly devoid of substance. The appellant has questioned the legality of "sanction" on many grounds one of which is that the sanctioning authority did not apply its own mind and acted at the behest of the High Court which had issued a mandamus to sanction the prosecution. On a consideration of the whole matter, we are of the positive opinion that the sanctioning authority, in the instant case, was left with no choice except to sanction the prosecution and in passing the order of sanction, it acted mechanically in obedience to the mandamus issued by the High Court by putting the signature on a pro forma drawn up by the office. Since
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WP No. 4838 of 2021the correctness and validity of the "sanction order" was assailed before us, we had necessarily to consider the High Court's judgment and its impact on the "sanction". The so-called finality cannot shut out the scrutiny of the judgment in terms of actus curiae neminem gravabit as the order of the Gujarat High Court in directing the sanction to be granted, besides being erroneous, was harmful to the interest of the appellant, who had a right, a valuable right, of fair trial at every stage, from the initiation till the conclusion of the proceedings." (emphasis supplied) In a later judgment, the Apex Court in the case of NISHANT SAREEN (supra) has held as follows:
"7. The object underlying Section 19 is to ensure that a public servant does not suffer harassment on false, frivolous, concocted or unsubstantiated allegations. The exercise of power under Section 19 is not an empty formality since the Government or for that matter the sanctioning authority is supposed to apply its mind to the entire material and evidence placed before it and on examination thereof reach the conclusion fairly, objectively and consistent with public interest as to whether or not in the facts and circumstances sanction be accorded to prosecute the public servant. In Mansukhlal Vithaldas Chauhan v. State of Gujarat [(1997) 7 SCC 622 : 1997 SCC (Cri) 1120 : 1997 SCC (L&S) 1784] this Court observed: (SCC p. 631, para 17) "17. ... Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty."
... ... ...
12. It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us a sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter
- 11 -WP No. 4838 of 2021
on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise.
... ... ...
14. Insofar as the present case is concerned, it is not even the case of the appellant that fresh materials were collected by the investigating agency and placed before the sanctioning authority for reconsideration and/or for review of the earlier order refusing to grant sanction. As a matter of fact, from the perusal of the subsequent Order dated 15-3-2008 it is clear that on the same materials, the sanctioning authority has changed its opinion and ordered sanction to prosecute the respondent which, in our opinion, is clearly impermissible."
Considering the afore-quoted judgments, the Apex Court in a later judgment in the case of CBI v. ASHOK KUMAR AGGARWAL2 considering Section 19 of the Act has held as follows:
"13. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the 2 (2014) 14 SCC 295
- 12 -WP No. 4838 of 2021
protection available to the accused against whom the sanction is sought.
14. It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
15. Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge- sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non-application of mind.(Vide Gokulchand Dwarkadas Morarka v. R. [(1947-48) 75 IA 30: (1948) 61 LW 257:
AIR 1948 PC 82]; Jaswant Singh v. State of Punjab [AIR 1958 SC 124: 1958 Cri LJ 265], Mohd. Iqbal Ahmed v. State of A.P. [(1979) 4 SCC 172: 1979 SCC (Cri) 926], State v. Krishanchand Khushalchand Jagtiani [(1996) 4 SCC 472: 1996 SCC (Cri) 755], State of Punjab v. Mohd. Iqbal Bhatti [(2009) 17 SCC 92:
(2011) 1 SCC (Cri) 949], Satyavir Singh Rathi, ACP v. State [(2011) 6 SCC 1: (2011) 2 SCC (Cri) 782] and State of Maharashtra v. Mahesh G. Jain [(2013) 8 SCC 119: (2014) 1 SCC (Cri) 515: (2014) 1 SCC (L&S) 85].)
16. In view of the above, the legal propositions can be summarised as under:
- 13 -WP No. 4838 of 2021
16.1. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
16.2. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
16.3. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
16.4. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
16.5. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."
(emphasis supplied) In the light of the afore-quoted judgments of the Apex Court what would unmistakably emerge is that the competent authority has the power either to grant or refuse sanction. Therefore, the competent authority has to satisfy the Court that at the time of granting sanction adequate material was available from the hands of the authority who sought sanction. The Apex Court further holds that the Court should bear in mind that sanction lifts the bar of prosecution and it is not an acrimonious exercise but a solemn and sacrosanct act which affords
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WP No. 4838 of 2021protection to the Government servant against frivolous prosecution and a weapon to discourage vexatious prosecution. On the said principle the Apex Court summarizes the legal position at paragraph 16 (supra). At paragraph 16.1 the Apex Court holds that prosecution must send the entire material on record to the sanctioning authority which would include FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The competent authority has to look into the complete record and undertake a conscious scrutiny of the whole record of the public servant and independently apply its mind before grant of sanction or refusal to grant sanction. It is further mandated by the Apex Court that the order of sanction should make it evident that the authority has been aware of all the relevant material and had applied its mind to all such relevant material. This is again reiterated by the Apex Court albeit in a different circumstance that application of mind is imperative while exercising executive power of grant or refusal of sanction. The Apex Court in the case of VIJAY RAJMOHAN v. CBI3 has held as follows:
"23. Grant of sanction being an exercise of executive power, it is subject to the standard principles of judicial review such as application of independent mind; only by the competent authority, without bias, after consideration of relevant material and by eschewing irrelevant considerations. As the power to grant sanction for prosecution has legal consequences, it must naturally be exercised within a reasonable period. This principle is anyway inbuilt in our legal structure, and our constitutional courts review the legality and proprietary of delayed exercise of power quite frequently. In Mahendra Lal Das v. State of Bihar [Mahendra Lal Das v. State of Bihar, (2002) 1 SCC 149: 2002 SCC (Cri) 110. Per R.P. Sethi, J.: (Mahendra Lal Das case, SCC pp. 152-53, paras 7-9)"7. In cases of corruption the amount involved is not material but speedy justice is the mandate of the Constitution being in the interests of the accused as well as that of the society. Cases relating to corruption are to be dealt with swiftly, promptly and without delay. ...8. This Court in Ramanand Chaudhary v. State of Bihar, 3 (2023) 1 SCC 329
- 15 -WP No. 4838 of 2021
(2002) 1 SCC 153 quashed the investigation against the accused on account of not granting the sanction for more than 13 years. The facts of the present case are almost identical. No useful purpose would be served to put the appellant at trial at this belated stage.9. Keeping in view the peculiar facts and circumstances of the case, we are inclined to quash the proceedings against the appellant as permitting further prosecution would be a travesty of justice and a mere ritual or formality so far as the prosecution agency is concerned, and unnecessary burden as regards the courts."] and Ramanand Chaudhary v. State of Bihar [Ramanand Chaudhary v. State of Bihar, (2002) 1 SCC 153:
(Ramanand Chaudhary case, SCC p. 155, para 5)"5. It is not necessary to go into the legal points raised by Mr Jain as we are inclined to quash the prosecution against the appellant in the peculiar facts and circumstances of this case. After the raid no action was taken by the prosecution for six years. The Public Prosecutor consistently opined that no criminal case was made out against the appellant. The Commissioner on independent consideration refused to grant the sanction but later on at the asking of the DIG (Vigilance) he changed his view. The prosecution against the appellant is pending for over a period of thirteen years and it would be a travesty of justice to permit the prosecution at this stage which would mean that the appellant would suffer the trial/appeal for another decade. In view of the facts and circumstances of this case we quash the prosecution pending against the appellant...."] this Court found it expedient to quash the criminal proceedings due to the abnormal delay in granting a sanction for prosecution."
Therefore, the challenge to the order refusing to grant sanction for prosecution should be considered on the touch stone of the afore-quoted principle enunciated by the Apex Court and to consider the same, it is germane to notice the order itself which refused to grant sanction. The said order insofar as it is relevant is extracted hereunder for the purpose of quick reference:
"... ... ...
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WP No. 4838 of 2021ºÉÆA¢zÀÄÝ, CªÀgÀÄ vÀªÀÄä DzÁAiÀĪÀ£ÀÄß DzÁAiÀÄ vÉjUÉ jl£ïìðUÀ¼À°è WÉÆö¹PÉÆArzÀÝgÀÆ ¸ÀºÀ CªÀgÀ DzÁAiÀĪÀ£ÀÄß PÀrªÉÄAiÀiÁV ¯ÉPÀÌ ºÁQgÀĪÀÅzÀÄ, D¥Á¢vÀgÀÄ ºÁUÀÆ CªÀgÀ ¥Àwß ¥ÀqÉ¢gÀĪÀ ««zsÀ ¸Á®UÀ¼À°è PÉ®ªÉÇAzÀÄ ¸Á®UÀ¼À£ÀÄß vÀ¤SÁ¢üPÁjAiÀÄÄ ¥ÀjUÀt¹zÀÄÝ, PÉ®ªÉÇAzÀ£ÀÄß D jÃw ¸Á® ¤ÃrgÀĪÀÅzÀjAzÀ RÄzÁÝV ºÉýPÉ ¥ÀqÉzÀÄ, CªÀgÀÄUÀ¼ÀÄ ¸Á® ¤ÃrgÀĪÀÅzÀ£ÀÄß M¦àzÀÝgÀÆ ¸ÀºÀ CªÀjAzÀ ¸ÀA§AzsÀ¥ÀlÖ ¨ÁåAPï ¸ÉÖÃmïªÉÄAmï ºÁUÀÆ ªÀÄwÛvÀgÉ zÁR¯ÉUÀ¼À£ÀÄß ¥ÀqÉzÀÄ ¥Àj²Ã°¸ÀzÉà ªÀÄvÀÄÛ CªÀÅUÀ½UÉ ¸ÀÆPÀÛ ¸ÀªÀÄxÀð£É¬Ä®èzÉà PÉÊ©nÖgÀĪÀÅzÀÄ ºÁUÀÆ ªÉÄÃ¯É ¥Àæ¸ÁÛ¦¹gÀĪÀAvÉ F ¥ÀæPÀgÀtzÀ°è PÁ£ÀÆ£ÀÄ E¯ÁSÉAiÀÄÆ ¸ÀºÀ ºÀ®ªÁgÀÄ PÁ£ÀÆ£ÁvÀäPÀ ºÁUÀÆ ªÀÄwÛvÀgÉ ¯ÉÆÃ¥À zÉÆõÀUÀ¼À£ÀÄß vÀ¤SÁ ªÀgÀ¢AiÀÄ°è UÀÄgÀÄw¹gÀĪÀÅzÀÄ PÀAqÀħgÀÄvÀÛzÉ.
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¸ÀPÁðgÀzÀ DzÉñÀ ¸ÀASÉå: ¹D¸ÀÄE 07 EªÀÄÄ« 2011 ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ: 21.06.2019 ¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è «ªÀj¹gÀĪÀ CA±ÀUÀ¼À »£É߯ÉAiÀÄ°è ²æà ªÀÄÈvÀÄåAdAiÀĸÁé«Ä, PÁAiÀÄðzÀ²ð, ¯ÉÆÃPÉÆÃ¥ÀAiÉÆÃV, §AzÀgÀÄ ªÀÄvÀÄÛ M¼À£ÁqÀÄ d®¸ÁjUÉ E¯ÁSÉ (¥Àæ¸ÀÄÛvÀ PÁAiÀÄðzÀ²ð, ¸ÀtÚ ¤ÃgÁªÀj E¯ÁSÉ, «PÁ¸À ¸ËzsÀ) EªÀgÀÄ C¸ÀªÀÄ D¹Û ºÉÆA¢zÀ DgÉÆÃ¥ÀPÁÌV ¨sÀæµÁÖZÁgÀ ¥Àæw§AzsÀPÀ PÁAiÉÄÝ 1988gÀ PÀ®A 19(1)(©)gÀrAiÀÄ°è C©üAiÉÆÃd£ÉUÉƼÀ¥Àr¸À®Ä ¸ÀPÁðgÀzÀ ªÀÄAdÆgÁw ¤ÃqÀ®Ä AiÀiÁªÀÅzÉà ¸ÀPÁgÀtUÀ¼ÀÄ E®è¢gÀĪÀÅzÀjAzÀ F C¢üPÁjAiÀĪÀgÀ£ÀÄß ¸ÀPÀëªÀÄ £ÁåAiÀiÁ®AiÀÄzÀ°è C©üAiÉÆÃd£ÉUÉƼÀ¥Àr¸À®Ä ªÀÄAdÆgÁw ¤ÃqÀĪÀAvÉ PÀ£ÁðlPÀ ¯ÉÆÃPÀAiÀÄÄPÀÛzÀ C¥ÀgÀ ¥ÉÆð¸ï ªÀĺÁ¤zÉÃð±ÀPÀgÀÄ, ¸ÀPÁðgÀPÉÌ ¸À°è¹gÀĪÀ PÉÆÃjPÉAiÀÄ£ÀÄß ¸ÀPÁðgÀªÀÅ wgÀ¸ÀÌj¹zÉ."
The afore-quoted order which forms part of the order which refuses to grant sanction is a part of 35 page order. The competent authority has applied its mind to the entire material available on record, considers disproportionate assets of the 2nd respondent, assessed to be at 8%, and refuses to grant sanction. Merely because the Investigating Agency i.e., the Lokayukta has conducted
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WP No. 4838 of 2021investigation it cannot be concluded that the Government is bound by the request seeking sanction and sanction has to be accorded. The Government has to apply its mind in exercise of its discretion looking into the entire material and then pass order either to grant or refuse to grant sanction. The afore-quoted order is in tune with what the Apex Court has held. The competent Authority has refused to grant sanction on clear application of mind. Therefore, no warrant of interference is called for that too at the hands of the petitioner to an order which is in tune with law.
12. Insofar the judgment relied on by the learned counsel appearing for the petitioner in the case of NISHANT SAREEN (supra), with particular reference to paragraphs 14 and 15, in the considered view of this Court, is misplaced. The said paragraphs read as under:
"14. Insofar as the present case is concerned, it is not even the case of the appellant that fresh materials were collected by the investigating agency and placed before the sanctioning authority for reconsideration and/or for review of the earlier order refusing to grant sanction. As a matter of fact, from the perusal of the subsequent Order dated 15-3-2008 it is clear that on the same materials, the sanctioning authority has changed its opinion and ordered sanction to prosecute the respondent which, in our opinion, is clearly impermissible.
15. By way of footnote, we may observe that the investigating agency might have had legitimate grievance about the Order dated 27-11-2007 refusing to grant sanction, and if that were so and no fresh materials were necessary, it ought to have challenged the order of the sanctioning authority but that was not done. The power of the sanctioning authority being not of continuing character could have been exercised only once on the same materials."
(Emphasis supplied) The Apex Court holds that if there were no fresh materials collected by the Investigating Agency and placed before the sanctioning authority for reconsideration or for a review of the earlier order refusing to grant sanction, the change in the opinion of the sanctioning authority from the earlier view and granting sanction later without there
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WP No. 4838 of 2021being any fresh material was clearly impermissible is what the Apex Court holds. This can by no way lend any support to the contention of the petitioner. The other judgment relied on is in the case of CHITTARANJAN DAS (supra). The learned counsel for the petitioner places reliance upon paragraph 13 of the said judgment and it reads as follows:
"13. Here in the present case while the appellant was in service sanction sought for his prosecution was declined by the State Government. The Vigilance Department did not challenge the same and allowed the appellant to retire from service. After the retirement, the Vigilance Department requested the State Government to reconsider its decision, which was not only refused but the State Government while doing so clearly observed that no prima facie case of disproportionate assets against the appellant is made out. Notwithstanding that the Vigilance Department chose to file a charge-sheet after the retirement of the appellant and on that the Special Judge had taken cognizance and issued process."
(emphasis supplied) The aforesaid case was a case where sanction was initially refused by the State Government when the said Government servant was in service. After retirement the Vigilance Department requested the State to reconsider its decision. It was again refused. While doing so, it was observed that there was no prima facie case for disproportionate assets against the appellant therein. Notwithstanding that the Vigilance Department filed a charge sheet deliberately after the retirement of the Government servant therein. Here again it cannot be comprehended as to how this judgment would in any way become applicable to the facts of the case, that too in support of the petitioner. Therefore, the two judgments relied on by the learned counsel for the petitioner are inapplicable to the facts of the case. Hence, no fault can be found with the order impugned in refusing to grant sanction.
13. The other issue is whether at all the petitioner/ Investigating wing of the Lokayukta can be considered to be an aggrieved person to challenge the said order of the
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WP No. 4838 of 2021competent authority in refusing to grant sanction. The learned counsel for the petitioner in order to buttress that they can maintain a writ petition against the order refusing to grant sanction seeks to place reliance upon the judgment of the Apex Court in the case of MOHAMMED IQBAL BHATTI (supra) wherein it is held as follows:
"6. Although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the same, however, would not mean that power once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the authority concerned is imperative. The legality and/or validity of the order granting sanction would be subject to review by the criminal courts. An order refusing to grant sanction may attract judicial review by the superior courts.
7. Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidence must be considered by it. The sanctioning authority must apply its mind on such material facts and evidence collected during the investigation. Even such application of mind does not appear from the order of sanction, extrinsic evidence may be placed before the court in that behalf. While granting sanction, the authority cannot take into consideration an irrelevant fact nor can it pass an order on extraneous consideration not germane for passing a statutory order. It is also well settled that the superior courts cannot direct the sanctioning authority either to grant sanction or not to do so. The source of power of an authority passing an order of sanction must also be considered. (See Mansukhlal Vithaldas Chauhan v. State of Gujarat [(1997) 7 SCC 622: 1997 SCC (L&S) 1784: 1997 SCC (Cri) 1120].) The authority concerned cannot also pass an order of sanction subject to ratification of a higher authority. [See State v. Dr. R.C. Anand [(2004) 4 SCC 615: 2004 SCC (Cri) 1380].]
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8. The High Court called for the entire records. It perused the same. It noticed that several queries were raised but remained unanswered. The departmental proceeding initiated against the respondent was dropped. The recommendations therefore were made not to grant sanction on the basis whereof the aforementioned order dated 15-12-2003 was passed. A finding of fact has been arrived at by the High Court that no material was placed before the competent authority. Only a communication had been received from the Director, Vigilance Bureau dated 22-6-2004 wherein reference of the letter dated 26-5-2004 was made. It, according to the High Court, was not a new material."
The issue before the Apex Court in the said case was sanction to prosecute the employee had been refused by the competent authority on 15-12-2003. The competent authority later accorded sanction on 14.09.2004 to prosecute the employee whose sanction had been earlier refused. The High Court had held that the State had no power to review an order granting or refusing sanction having exhausted its jurisdiction once. The Apex Court was considering the said order passed by the High Court and holds that an order refusing to accord sanction may attract review by superior courts. The Apex Court also notices that the High Court after calling for entire records and perusing the same had accepted that there was no material before the sanctioning authority and no case was made out for grant of sanction. The Apex Court further holds that when there was no fresh material before the sanctioning authority, it could not have granted sanction at a later stage once refused on the same material. The issue there was not whether the Investigating Agency had any locus or can be construed to be an aggrieved person to call in question an order refusing to accord sanction. The aggrieved person therein was the State Government as its order granting sanction after having refused was called in question by the employee. This, in the considered view of this court, would not empower the Police wing of the Lokayukta to file a writ petition calling in question refusal of grant of sanction by the competent authority to prosecute the 2nd respondent. The Apex Court uses the word may attract judicial review by superior Court. Therefore, it was not a ratio that was laid down but only a passing reference made which cannot become a binding precedent on the High Court.
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WP No. 4838 of 202114. It is germane to notice that a Division Bench of the High Court of Madhya Pradesh not in one but in two cases has unequivocally held that the Lokayukta cannot be considered to be an aggrieved person against the order refusing to grant sanction. The Division Bench in the case of STATE OF MADHYA PRADESH v. SANDEEP KUMAR LOHANI AND OTHERS4 has held as follows:
"6. The Hon'ble Supreme Court in the case of Mohd. Iqbal Ahmad v. State of Andhra Pradesh reported in (1979) 4 SCC 172 : AIR 1979 SC 677 has held that the grant of sanction is not an idle formality but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and must, therefore, be strictly complied with before any prosecution could be launched against public servants. It is well known that the purpose of granting sanction by the Competent Authority is neither a mere formality nor a ritual. It is in the nature of a safe ground provided to public servant of falsely being harassed, implicated and then prosecuted. It is also aimed at infusing confidence in the fair working of the public servants and also for keeping a check of unscrupulous elements to deter the working of public servants by roping them in vexatious cases. But at the same time, it is to be ensured that those who are found guilty prima facie of having committed some offence may be dealt with in accordance with law.
7. The Hon'ble Supreme Court in the case of State of Punjab v. Mohammad Iqbal Bhatti reported in 2010 Cri LJ 1436 has held that it is also well settled that the Supreme Court cannot direct the sanctioning authority either to grant sanction or not to do so. The work of the Lokayukt Authorities is only to investigate into the matter and submit the report before the Government for seeking sanction. It is for the Government to analyse the report; and it is the discretion and the domain of the State Government to grant or not to grant sanction for prosecution. Under no provisions, the State Government can be compelled to grant sanction for prosecution.4
2022 SCC OnLine MP 5112
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8. Counsel appearing for the petitioner could not point out any relevant provisions of law to enable the Lokayukt Authorities to ask for a mandamus to the State Government to grant sanction for prosecution. It is the prerogative of the State Government to consider and decide the factum of grant of sanction."
(emphasis supplied) Following the earlier view, the Division Bench of the High Court Madhya Pradesh in its order passed on 5-12-2022 in SPECIAL POLICE ESTABLISHMENT v. STATE OF MADHYA PRADESH5 has held as follows:
"5. In the judgment in the case of Sandeep Kumar Lohani (supra), this Court has relied on the judgments of the Hon'ble Supreme Court in the case of Mohd.Iqbal Ahmad v. State of Andhra Pradesh reported in AIR 1979 SC 677 as well as in the case of State of Punab v. Mohammad Iqbal Bhatti reported in 2010 Crl.L.J. 1436 and came to the conclusion that the work of the Lokayukt authorities is to investigate into the matter and to submit a report before the Government for seeking sanction. It is for the State Government to analyse the report and it is their discretion and domain to grant or not to grant sanction for prosecution. That sanction is not an idle formality but a solemn and sacrosanct act, which affords protection to the Government servants against frivolous prosecutions. Hence, on these grounds the petition filed by the very Lokayukt was dismissed and the plea of the petitioner therein seeking grant of sanction was declined.
6(a) So far as the judgments relied upon by the learned senior counsel appearing for the petitioner's counsel are concerned, in the case of Special Police Establishment (supra0, reliance is placed on paragraphs 12, 16, 19, 21 and 22 to contend that the Special Police Establishment has locus standi to challenge the order refusing grant of sanction. However, while considering the findings with respect to locus standi of the SPE to challenge the same, the contents of para-12 of the said judgment would have to be considered. The contention of 5 W.P.NO..25917 OF 2021
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the State therein was to the effect that the M.P. Government Business (Allocation) Rules were made in exercise of the pwers conferred under the Clauses (2) and (3) of the Article 166 of the Constitution of India by the Hon'ble Governor. That the business of sanction for prosecution in the cases investigated by the SPE has been allocated to the Law and Legislative Affairs Department.
Therefore, the SPE could not have challenged the order refusing grant of sanction. It is on this question, as stated in para-12, that the Division Bench came to the conclusion that the SPE has a locus standi to challenge the order refusing grant of sanction. Hence, the said judgment has no bearing on this case, since that is not the ground urged herein.
(b) The next judgment relied upon is in the case of Sri K.Srinivasulu (supra). Reliance is placed on the hearing of the discussion "whether the petitioner lacks locus standi to file the writ petition in public interest", wherein the Division Bench of the High Court of Andhra Pradesh held that a public interest litigation is maintainable in cases where grant of sanction is refused or not. However, herein the petitioner has not filed this petition in public interest. It is filed by the Lokayukt. As held in the Division Bench judgment of this Court in the case of Sandeep Kumar Lohani (supra), the duty of the Lokayukt is merely to investigate. Its role ends there. It cannot prosecute the proceedings further as a right given to the other stakeholders that are involved here. Therefore, we are of the view that the said decision would not have any bearing on this case.
(c) The next judgment relied upon is in the case of Vijay Rajmohan (supra) wherein the Hon'ble Supreme Court in paras 39 and 40 has held as follows:
"39. In conclusion, we hold that upon expiry of the three months and the additional one month period, the aggrieved party, be it the complainant, accused or victim, would be entitled to approach the concerned writ court. They are entitled to seek appropriate remedies, including directions for action on the request for sanction and for the corrective measure on accountability that the sanctioning authority bears. This is especially crucial if the non-grant of sanction is withheld without reason, resulting in the stifling of a genuine case of corruption.
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Simultaneously, the CVC shall enquire into the matter in the exercise of its powers under Section 8(1)(e) and (f) and take such corrective action as it is empowered under the CVC Act.
40. The second issue is answered by holding that the period of three months, extended by one more month for legal consultation, is mandatory. The consequence of non-compliance with this mandatory requirement shall not be quashing of the criminal proceeding for that very reason. The competent authority shall be accountable for the delay and be subject to judicial review and administrative action by the CVC under Section 8(1)(f) of the CVC Act."
However, what has been narrated in paras 39 and 40 by the Hon'ble Supreme Court would have to be taken into consideration. As to what were the questions that were being considered by the Hon'ble Supreme Court, that could be seen from para-2 of the judgment, which reads as follows:
"2. Two important questions of law arise for consideration in this appeal. The first question is whether an order of the Appointing Authority granting sanction for prosecution of a public servant under Section 19 of the Prevention of Corruption Act, 1988, would be rendered illegal on the ground of acting as per dictation if it consults the Central Vigilance Commission for its decision. The second question is whether the period of three months (extendable by one more month for legal consultation) for the Appointing Authority to decide upon a request for sanction is mandatory or not. The further question in this context, is whether the criminal proceedings can be quashed if the decision is not taken within the mandatory period."
Therefore, what was being considered by the Hon'ble Supreme Court was as to whether an order of the Appointing Authority granting sanction for prosecution under the Prevention of Corruption Act would be rendered illegal on the ground of acting as per the dictation of the Central Vigilance Commission for its decision. The second question was whether the period of three months extendable by a further period of one month by the
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WP No. 4838 of 2021appointing authority to decide upon the request for sanction is mandatory or not. We are of the view that both the questions that were considered by the Hon'ble Supreme Court are alien to the facts of this case.
7. In the instant case, the question that would arise for consideration is as to whether the Lokayukt, as an institution has any authority to challenge an order refusing to grant sanction by the State. As held hereinabove, the said question has already been answered by this court in the judgment in the case of Sandeep Kumar Lohani (supra). Every State body has a role to perform. It has to do so within the confines of the power vested in it by statute. The Lokayukt has its role to play as much as the State Government has its role to perform. The duty of the Lokayukt is to conduct an investigation and thereafter to place it for grant of sanction or otherwise to the Government. The Government, in turn, has the responsibility to go through the material and thereafter to come to a conclusion as to whether sanction is to be granted or not. The grant of sanction is a very important facet in the matter of prosecution of civil servants. It is intended to ensure that there are no frivolous prosecutions that are carried out. It is for this reason that the question of grant of sanction becomes crucial. Therefore, once the Lokayukt has performed its duty of submitting its report to the Government, its role ends. It is the discretion of the Government to grant sanction or not. When such a sanction has been refused, the Lokayukt could not challenge the said order."
(emphasis supplied) The Division Bench of the High Court of Madhya Pradesh in the aforesaid two of its judgments clearly holds that the Lokayukt cannot be construed to be an aggrieved person to challenge an order refusing to grant sanction. Therefore, the petitioner/Police wing of the Karnataka Lokayukta which is in the position of Investigating Agency cannot be construed to be an aggrieved person to challenge the order which refuses to grant sanction to prosecute the 2nd respondent.
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WP No. 4838 of 202115. Wherefore, on both the counts that the competent authority is entitled to look into the entire material while according or refusing to grant sanction and that the petitioner cannot be construed to be an aggrieved person to challenge the order refusing to grant sanction by the competent authority, the writ petition deserves to meet its dismissal and is accordingly dismissed."
In the light of the issue being identical and the petitioner being common in both the cases, for the very reasons rendered in W.P.No.5248 of 2020 (supra), the subject petition also deserves to be rejected. Even otherwise, for an order that was passed on 19-12-2016, the writ petition is filed by the petitioner on 04-03-2021 which is 4 years 3 months after the passage of the order. Not a spec of justifiable explanation is made in the petition. At paragraph 4 of the writ petition it is vaguely submitted that there is some delay in filing the petition due to consultations made within the office of the petitioner to adopt legal course. There can be no justification for consultation going on for 4 years and 3 months within the same office whether to file a writ petition or not. Therefore, the delay also does not save the petitioner.
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WP No. 4838 of 2021For all the aforesaid reasons, the petition deserves to be dismissed and is accordingly dismissed.
Sd/-
JUDGE bkp List No.: 1 Sl No.: 65