Bangalore District Court
The State Of Karnataka vs Smt. Amaravathi on 2 March, 2017
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT UNDER
PREVENTION OF CORRUPTION ACT, BENGALURU.
(CCH-78)
PRESENT: SRI MANJUNATH NAYAK,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: 2nd MARCH 2017.
Spl. C.C.No. 115/2011
*****
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: Smt. Amaravathi, Aged 40 years,
W/o Late Muniraju, Tax Collector,
Doddathogur Grama Panchayath,
Begur Hobli, Electronic City,
Bengaluru South Taluk,
Bengaluru 100,
R/a No.228, Doddathogur,
Muneshwara Layout,
Begur Hobli, Electronic City,
Bengaluru 100.
(Rep by Sri S.K.Venkata Reddy,
Advocate)
*****
2 Spl. C.C. No.115/2011
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 01-02-2011.
of offence:
3. Date of First Information 01-02-2011.
Report:
4. Date of Arrest: 01-02-2011.
5. Date of Commencement 08-04-2015.
Of recording of evidence:
6. Date of Closing of evidence: 10-11-2016.
7. Date of Pronouncement of 02-03-2017.
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 allegation that the accused has committed the offence punishable 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 a tax collector at Doddathoguru Village Panchayath, Bengaluru South Taluk.
On 01-02-2011, one Sridhar Thimmegowda has appeared before the Lokayuktha Police and lodged a complaint alleging that the accused 3 Spl. C.C. No.115/2011 has demanded the bribe amount of Rs.5,000/- from him for changing the katha of the property purchased by him at Electronic City. On the basis of the complaint, Lokayuktha Police have registered the FIR in Cr.No.9/2011. The Investigating Officer has secured the witnesses and conducted pre trap proceedings and drawn the pre trap mahazar. On 01-02-2011, at about 1.10 p.m., this accused was trapped by the Lokayuktha Police in her office at Doddathoguru Village Panchayath, when she has demanded and accepted the bribe amount of Rs.5,000/-
from the complainant. The Lokayuktha Police have conducted the trap proceedings and drawn the trap mahazar. The accused was arrested and produced before this court. Investigating Officer has continued further investigation, recorded the statement of witnesses, secured the documents relating to the complainant and also obtained the chemical analysis report in respect of the seized material objects. After completion of 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 against the accused by alleging that she has committed the offences punishable under Sec. 7,13(1)(d) R/w Se. 13(2) of the Prevention of Corruption Act 1988.4 Spl. C.C. No.115/2011
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 charges and having found the prima facie materials, framed the 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 8 witnesses as PW.1 to 8 and got marked Ex.P-1 to P-28 documents and MO.1 to 18 material objects.
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 her. The accused has not chosen to let in any defence evidence on her behalf.
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?5 Spl. C.C. No.115/2011
2. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as Tax Collector in the office of Doddathogur Village Panchayath, demanded the bribe amount of Rs.5,000/- from the complainant for changing the katha in respect of property No.196 at Electronic City and demanded and accepted the illegal gratification of Rs.5,000/- from the complainant on 01-02-2011 at about 1-10 PM, in her office at Doddathoguru, from the complainant, 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?
3. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as Tax Collector in the office of Doddathogur Village Panchayath, on 01-02-2011 abused her official position by illegal means and as a public servant demanded and accepted the illegal gratification of Rs.5,000/- 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.
6 Spl. C.C. No.115/2011
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 working as a Tax Collector in the Doddathogur Grama Panchayath and the allegations against her is about she 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.2-B.R.Ashok, who was examined before this court as PW.1, deposed during the course of his evidence that, he and CW.2 were appeared before CW.18 to assist as witnesses in respect of the complaint lodged by CW.1. PW.1 further deposed that, CW.1 produced five currency notes of Rs.1000/- each before CW.18 and numbers of those notes were entered as per Ex.P.1. PW.1 further deposed about 7 Spl. C.C. No.115/2011 Lokayuktha Police conducting pre trap proceedings in their presence and drawn the pre trap mahazar as per Ex.P.3. PW.1 further deposed that, thereafter they went to the office of accused and he along with CW.1 entered the office and CW.1 asked the accused about katha and she said that it was not ready. PW.1 further deposed that, thereafter accused conveyed the message with right hand and also through the eyes demanding the illegal gratification and CW.1 gave the tainted notes to the accused. PW.1 further deposed that, after receiving the same, accused kept the same on the right side of her table drawer and thereafter Lokayuktha Police entered the office. PW.1 further deposed that, hand wash of the accused was made and the sodium carbonate solution, in which finger wash was made, turned into pink colour and same was seized by Lokayuktha Police. PW.1 further deposed that, tainted currency notes found with the accused was also seized by Lokayuktha Police and trap mahazar was drawn as per Ex.P.6.
11. CW.3-A. Seetharamaiah, who was examined before this court as PW.2, deposed during the course of his evidence that, he and CW.2 appeared before CW.18 on 01-02-2011 and they were asked to assist as witnesses in respect of the complaint lodged by CW.1. PW.2 further deposed that, Lokayuktha Police have conducted the pre trap 8 Spl. C.C. No.115/2011 proceedings in their presence and drawn the pre trap mahazar as per Ex.P.3. PW.2 further deposed that, thereafter they came to the office of accused and CW.1 and 2 entered the office and within few minutes CW.1 came out and gave the signal to them and thereafter he along with Lokayuktha Police entered the office of accused. PW.2 further deposed that, Lokayuktha Police have conducted the hand wash proceedings of the accused and pink colour solution was seized. PW.2 further deposed that, tainted currency notes were recovered from the accused and voice recorder was displayed in the presence of CW.4 and he identified the voice of accused. PW.2 further deposed that, trap mahazar was drawn in his presence as per Ex.P.6.
12. CW.4-R. Sonnegowda, who was examined before this court as PW.3, deposed during the course of his evidence that, during the year 2010 and 2011, he was working as PDO in Doddathoguru Village Panchayath and accused was working as tax collector. PW.3 further deposed that, on 01-02-2011 at about 1.15 p.m., CW.18 told him that, this accused was trapped by them, while receiving the bribe amount and in his presence CW.18 has continued the trap proceedings and conducted hand wash of the accused and solution turned into pink colour and same was seized. PW.3 further deposed that, in his presence, CW.18 asked the accused about tainted currency notes and 9 Spl. C.C. No.115/2011 she told that she has kept the same in the table drawer and one of the pancha witness took the tainted currency notes from the drawer. PW.3 further deposed that, as per the instruction of CW.18, he produced the attendance register as per Ex.P.8 and documents relating to the complainant as per Ex.P.9. PW.3 further deposed that, on the next day he gone to the office of Lokayuktha police and a voice recorder displayed before him and he identified the voice of the accused in those recordings. PW.3 further deposed that, few months later Lokayuktha Police gave a requisition to issue the sanction to prosecute the accused and as per Sec. 113 of the Panchayath Raj Act, being Development Officer, he is authorized to remove the accused from the service by obtaining the approval from the Grama Panchayath. PW.3 further deposed that, after going through the documents, he satisfied that the accused has committed the alleged offences and accordingly issued the sanction order as per Ex.P.10.
13. CW.8-H.S.Jnanesha, who was examined before this court as PW.4, deposed during the course of his evidence that, he was working as a Tax collector and computer operator in the Doddathoguru Village Panchayath and accused was working as a bill collector. PW.4 further deposed that, on 13-01-2011 accused approached him with a complaint and requested him to collect the tax and assessment from 10 Spl. C.C. No.115/2011 the year 2005 to 2011. PW.4 further deposed that, he has calculated the tax amount of Rs.12,414/- and wrote the said figure in the back page of the copy of the sale deed. PW.4 further deposed that, complainant requested him to issue receipt in respect of the said tax and he directed the complainant to approach the accused for the receipt. PW.4 further deposed that, complainant has not met him and not made any enquiries with him. PW.4 further deposed that, on 01- 02-2011 complainant and Lokayuktha Police came to their office and enquired about him and took him along with them to Lokayuktha office. PW.4 further deposed that, he do not know about the accused receiving the bribe amount from the complainant.
14. CW.18-S. Suresh Babu, who was examined before this court as PW.5, deposed during the course of his evidence that, on 01-02- 2011 at about 10.15 a.m. CW.1 appeared before him and lodged a complaint as per Ex.P.13, on the basis of which, he has registered the FIR as per Ex.P.14. PW.5 further deposed that, by issuing the requisition letter as per Ex.P.15, he secured CW.2 and 3 as witnesses and conducted the pre trap proceedings in their presence and drawn the pre trap mahazar as per Ex.P.3. PW.5 further deposed that, thereafter they proceeded towards the office of the accused near Doddathoguru Village Panchayat and CW.1 and 2 went inside the 11 Spl. C.C. No.115/2011 panchayath office and they started watching outside. PW.5 further deposed that, at about 1.20 p.m. CW.1 gave the signal and thereafter they entered the office of accused and CW.1 shown the accused and told that she has received the bribe amount from him. PW.5 further deposed that, hand wash of the accused was conducted and sodium carbonate solution, which turned into pink colour, was seized. PW.5 further deposed that, currency notes found on the table drawer of the accused was recovered and same was seized. PW.5 further deposed that, thereafter they came back to the office and a recording in the voice recorder was displayed before CW.4 and he identified the voice of the accused in the said recordings. PW.5 further deposed that, accused has given the statement before him as per Ex.P.4. PW.5 further deposed that, CW.8 has also given statement before him as per Ex.P.12. PW.5 further deposed about he drawing the trap mahazar as per Ex.P.6. PW.5 further deposed about he continuing the investigation and securing the service records of the accused and recording the statement of witnesses. PW.5 further deposed that, he secured the chemical analysis report and also got recorded the statement of CW.1 and 2 under Sec.164 of Cr.P.C. through 17th ACMM, Bengaluru. PW.5 further deposed that, he filed the charge sheet against the accused after obtaining the sanction. 12 Spl. C.C. No.115/2011
15. CW.11-Smt. S. Nagashree, who was examined before this court as PW.6, deposed during the course of her evidence that, on 03- 02-2011 she has recorded the statement of one Venkatappa as per the requisition of the Lokayuktha Police. PW.6 further deposed that, on 01- 03-2011 she has recorded the statement of one Ashok B.R. and Sridhar Thimmegowda as per Ex.P.25 and 26.
16. CW.5-Chandrashekar, who was examined before this court as PW.7, deposed during the course of his evidence that, he was the member of Doddathoguru Grama Panchayath during the year 2010 and accused and CW.8 were serving as bill collector in their panchayath. PW.7 further deposed that, during the year 2011, when he went to the office of grama panchayath, it was locked and he was allowed to go inside the grama panchayath and came to know that something has happened inside the grama panchayath office and subsequently he came to know that the Lokayuktha Police have conducted raid. PW.7 further deposed that, accused was taken in jeep and he do not know the reason for taking her.
17. CW.7-Venkatappa, who was examined before this court as PW.8, deposed during the course of his evidence that, since from the 13 Spl. C.C. No.115/2011 last 21-years, he was working as bill collector in Doddathoguru village Panchayath and accused and CW.1 were also working as bill collectors in Doddathoguru village Panchayath. PW.8 further deposed that, on 01-02-2011, when this accused was writing the bill relating to receipt of Rs.12,000/-, in respect of tax and Rs.5,000-00 as penalty, Lokayuktha Police have conducted the raid. PW.8 further deposed that, he do not know about any proceedings conducted by the Lokayuktha Police. PW.8 further deposed that entries in page 86 to 88 of the Assessment Extracts were in his hand writing and those writings were made by him 2 to 3 days before Lokayuktha Police coming to their office. PW.8 further deposed that he has given the statement by appearing before the court as per Ex.P.24.
18. The accused has seriously disputed the validity of sanction accorded to prosecute her. According to the accused, neither the Panchayath Development Officer (in short PDO) nor the President of the Grama Panchayat, are the competent authority to accord the sanction to prosecute the accused, who was working as a bill collector. According to the learned counsel for the accused, bill collector is not appointed either by the PDO or by the President of Grama Panchayat. Rather, bill collector is being appointed by the Chief Executive Officer of the Taluka Panchayat. Even the President and the PDO of the Grama 14 Spl. C.C. No.115/2011 Panchayat have no authority to remove or dismiss the bill collector. Therefore, they are not the competent authority to accord the sanction to prosecute the accused.
19. On the other hand, learned Public Prosecutor, by drawing the attention of this court to Sec.113(3) of the Karnataka Panchayat Raj Act, 1993, has argued before me that Grama Panchayat has the authority to reduce any rank, remove or dismiss any employee appointed by it. According to the learned Public Prosecutor, since the bill collector of Grama Panchayat is being appointed by Grama Panchayat, it has got every right to dismiss the bill collector and accordingly, it has got every right to accord the sanction to prosecute the bill collector. Therefore, it was argued by the learned Public Prosecutor that the sanction accorded to prosecute this accused by the PDO and the President of Grama Panchayat is valid.
20. It is well established principle of law held through catena of the decisions of the Hon'ble Supreme Court and also the Hon'ble High Court of Karnataka that, to prosecute a public servant for the offence punishable under Sec.7 and 13 of the Prevention of Corruption Act 1988, there should be a valid sanction issued by the competent authority under Sec.19 of the Prevention of Corruption Act, 1988. As 15 Spl. C.C. No.115/2011 per the above provision, sanction to prosecute any public servant, other than the employees of the Union Government and the employees of the State Government, have to be issued either by appointing authority or by the authority, which is empowered to dismiss or remove that public servant.
21. If I draw my attention to the facts of this case, there is no dispute that the accused is a public servant. The sanction to prosecute this accused was signed by the then President of Grama Panchayat by name V. Bajjappa and PDO of the Grama Panchayat by name R. Sonnegowda. The prosecution examined said R. Sonnegowda, who was cited as CW.4 in the charge sheet, as PW.3 and got marked the sanction order as per Ex.P.10. It is evident from Ex.P.10 that, the President and the PDO of the Grama Panchayat have asserted that under Sec.113 of the Karnataka Panchayath Raj Act, they are empowered to dismiss the accused from the service. Therefore, they were the competent authority to accord the sanction to prosecute her and accordingly they have issued the sanction to prosecute the accused.
22. Even though the President of Grama Panchayat is one of the signatory to the sanction order, he has not been cited as a witness in 16 Spl. C.C. No.115/2011 the charge sheet. Even during the course of evidence before this court prosecution has not made any attempt to examine one of the sanctioning authority, who is the President of the Grama Panchayat.
23. Now, the question before this court is as to whether the sanction accorded by the PDO and the President of the Grama Panchayat is valid sanction. If I draw my attention to the Ex.P.10 sanction order, it reveals that Lokayuktha Police have submitted a representation before them and the President and the PDO of the Grama Panchayat have considered said representation, perused the documents produced by the Lokayuktha Police along with the representation and prima facie satisfied about the commission of the offences by the accused and accordingly, as the President and the PDO of the Grama Panchayat, have accorded the sanction to prosecute the accused. So, the sanction order has been issued by the President and the PDO of the Grama Panchayat. Admittedly, matter relating to according the sanction was not kept before the Grama Panchayat meeting for its approval. No resolution was passed in the meeting of the Grama Panchayat to accord the sanction to prosecute the accused. No resolution was passed in the meeting of the Grama Panchayat, at- least to authorize the President and the PDO of the Grama Panchayat to consider the request of the Lokayuktha Police to accord the 17 Spl. C.C. No.115/2011 sanction. The matter was also not placed before the Executive Office of the Taluka Panchayat, before according the sanction to prosecute the accused. So, it is a sanction accorded by the President and the PDO of the Grama Panchayat, without passing any resolution in the meeting of the Grama Panchayat and without getting any approval from the Executive Officer of the Taluka Panchayat. Now the question before this court is as to whether such a sanction accorded to prosecute this accused is a valid or not.
24. As I said earlier, to justify the validity of the sanction, prosecution mainly rely upon Sec. 113(3) of the Karnataka Panchayat Raj Act. Sec. 113 of the Karnataka Panchayat Raj Act deals with the provision relating to the appointment and control of employees. Sec.113(3) of the Panchayat Raj Act specifically provides that 'Grama Panchayat may reduce any rank, remove or dismiss any employee appointed by it. So, plain reading of the above provision makes it clear that a Grama Panchayat, which has appointed any employee, can reduce its rank, remove and dismiss.
25. Let me for the sake of arguments accept for a while that bill collector has been appointed by the Grama Panchayat. If the bill collector has been appointed by the Grama Panchayat, then the Grama 18 Spl. C.C. No.115/2011 Panchayat has got authority to dismiss him, as per the above provision. Accordingly, Grama Panchayat may get got authority to accord the sanction to prosecute the bill collector being the dismissal authority. Still the sanction accorded by the President and the PDO of the Grama Panchayat cannot be held as valid one, because Grama Panchayat does not mean only the President and the PDO. It is the counsel of the members, including the President, Vice President and the PDO is the Grama Panchayat and elected members of the grama panchayth constitute a grama panchyath. Therefore, when the word Grama Panchayat has been used as an authority to appoint or dismiss any of its employees, it includes the counsel of the members of the Grama Panchayat. Therefore, for according the sanction to prosecute or to appoint and dismiss its employees, a resolution has to be passed in the meeting of the Grama Panchayat and in pursuance to the resolution passed in the meeting, PDO can issue the sanction order, if authority was given to him. But, in this particular case, requisition submitted by the Lokayuktha Police was not placed before the meeting of the Grama Panchayat and no resolution was passed to accord the sanction to prosecute the accused. Under such circumstances, sanction accorded by the President and the PDO of the Grama Panchayat cannot be said as valid one.
19 Spl. C.C. No.115/2011
26. Now, it is relevant to refer the evidence of CW.4, who was examined as PW.3, who has accorded the sanction to prosecute the accused. In-fact CW.4/PW.3 was also present at the time of trapping the accused and trap proceedings, including the hand wash of the accused, was conducted in his presence. It is CW.4/PW.3, who has issued the documents to Lokayuktha Police, including the attendance register of their office. It is CW.4/PW.3, who has seen the voice recorder displayed in his presence regarding the demand of bribe by the accused. In respect of all these, CW.4/PW.3 deposed during the course of evidence. Apart from that, CW.4/PW.3 deposed that Lokayuktha Police have sent the requisition along with the entire file seeking sanction to prosecute the accused. CW.4/PW.3 further said that since the accused was an employee of the Grama Panchayat, as she was working as a tax collector, under Sec. 113 of the Panchayat Raj Act, being the Development Officer, he and President of the Grama Panchayat, are authorized to remove the accused from the service, by obtaining the approval from the Grama Panchayat. Accordingly, they are authorized to issue the sanction to prosecute the accused. I place the emphasis upon the sentence used by the CW.4/PW./3 in his examination in chief that, they are authorized to remove the accused from the service, by obtaining the approval from the Grama 20 Spl. C.C. No.115/2011 Panchayat. So, even according to CW.4/PW.3, he and President of the Grama Panchayat are not having absolute or exclusive right to remove the bill collector. Rather, they have to get the approval from the Grama Panchayat. The approval from the Grama Panchayat can be obtained by passing a resolution in the meeting of the Grama Panchayat. So, when the President and PDO can remove the bill collector only by getting an approval from the Grama Panchayat, even to accord the sanction to prosecute the bill collector, they have to obtain the approval by passing a resolution in the meeting of the Grama Panchayat. So, evidence of CW.4/PW.3 would also establish that an approval from the Grama Panchayat is necessary for according the sanction to prosecute the bill collector. In the case on hand, no such resolution was passed in the meeting of the Grama Panchayat for according the sanction to prosecute the accused. On this score alone, I have to say that there is no valid to sanction to prosecute the accused.
27. The learned counsel for the accused has argued before me that, even for appointing this accused, Grama Panchayat has no absolute or exclusive right, as after passing resolution in the Grama Panchayat matter was referred to the Executive Officer of the Taluka Panchayat for approval of the resolution and after getting the approval 21 Spl. C.C. No.115/2011 from it, this accused was appointed as the bill collector. Hence, even for granting the sanction, approval from the Executive Member of the Taluka Panchayat has to be obtained. In this regard, learned counsel for the accused has produced the documents like resolution passed by the Doddatogur Grama Panchayat in its meeting dated: 07-03-2008 and the approval given by the Executive officer of the Taluka Panchayat, Bengaluru South and subsequent order passed by the Bengaluru Urban Zilla Panchayat. The resolution dated: 07-03-2008 passed by the Doddatogur Grama Panchayat goes to show that this accused was serving as a waterman in the Grama Panchayat and during the year 2008, she submitted a requisition to promote her as bill collector. The Grama Panchayat, in its meeting dated: 07-03-2008, considered the representation given by the accused and passed a resolution to get the approval from the Taluka Panchayath, Bengaluru South, to promote her as the bill collector. In response to the said resolution, on 26-05-2008, Chief Executive officer of the Taluka Panchayath, Bengaluru South, has approved the resolution passed by the Grama Panchayat for promoting this accused as the bill collector. Subsequently, matter was referred to the Bengaluru Zilla Panchayat and Order dated: 09-06-2008 was passed by the Chief Executive Officer of the Bengaluru Urban Zilla Panchayath, to approve the 22 Spl. C.C. No.115/2011 resolution and directed the Secretary of the Grama Panchayat to take action under Sec. 112 and 113 of the Grama Panchayat for promoting the accused as the bill collector. In-fact, above referred resolution of the Grama Panchayat was produced along with the charge sheet in page 42 and it is enclosed with Ex.P.19. The order of the Zilla Panchayath is produced at page 43 of the charge sheet and it is also included under Ex.P.19 file. All those documents would prove that, even Grama Panchayat can not independently appoint the bill collector. The Grama Panchayat, after passing the resolution in its meeting, has sent the same for the approval and Taluka Panchayath and Zilla Panchayath has approved the resolution and subsequently this accused was promoted as the bill collector.
28. The service particulars of the accused was secured by the Investigating Officer and produced at page 44 of the charge sheet and it is along with Ex.P.19. Even in the said document, it is shown that Grama Panchayat has the right to remove the accused from the service. If the Grama Panchayat has the right to remove the accused from his service, it has to pass the resolution. The President and the PDI have no absolute or independent right to remove the accused from the service without passing the resolution of the Grama Panchayat. Therefore, they have got no exclusive right to issue the sanction order. 23 Spl. C.C. No.115/2011 Under such circumstances, I have to say that there is no valid sanction to prosecute the accused. The sanction accorded to prosecute the accused is not by the competent authority and it is not by passing the resolution in the meeting of the Grama Panchayat. 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:
29. These two points are relating to the merits of the case and the allegations leveled against the accused about she 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 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 24 Spl. C.C. No.115/2011 learned Special Judge has held that there is no valid sanction to prosecute the accused. The learned Special Court has also considered the case on merits and held that the prosecution has failed to prove the guilt of the accused and accordingly, learned Special Court has proceeded to acquit the accused.
30. 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 the 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.
31. 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.
32. Now, it is relevant to consider some of the observations made by the Hon'ble Supreme Court in the above referred decision in 25 Spl. C.C. No.115/2011 Nanjappa V/s State of Karnataka. So far as the stage at which the 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'.
33. 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 26 Spl. C.C. No.115/2011 clear that in spite of invalid sanction, if the trial court proceeds with 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.
34. 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 27 Spl. C.C. No.115/2011 obtaining the valid sanction and even the second trial is not barred in such a situation. When the sanction is founds to be invalid, 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:
35. In view of my findings on the above points, since there is no valid sanction to prosecute the accused, she 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:
28 Spl. C.C. No.115/2011
ORDER The accused is discharged for the present for want of valid sanction to prosecute her.
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 2nd day of March 2017) (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) ()()()()() ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: B.R.Ashok PW.2: A. Seetharamaiah PW.3: R. Sonnegowda PW.4: H.S.Jnanesha PW.5: S. Suresh Babu PW.6: Smt. S. Nagashree PW.7: Chandra Shekar PW.8: Venkatappa 29 Spl. C.C. No.115/2011 LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Currency details sheet Ex.P.1(a to c): Signatures of PW.1,2 and 5 Ex.P.2: Voice recording transcription sheet Ex.P.2(a): Signature of PW.1 Ex.P.2(b): Signature of PW.2 Ex.P.3: Pre trap mahazar Ex.P.3(a to d): Signatures of PW.1 Ex.P.3(e to h): Signatures of PW.2 Ex.P.3(i): Signature of PW.5 Ex.P.4: Explanation of the accused Ex.P.4(a): Signature of PW.1 Ex.P.4(b): Signature of PW.5 Ex.P.4(c): Signature of accused Ex.P.5: Sketch Ex.P.5(a): Signature of PW.1 Ex.P.5(b): Signature of PW.5 Ex.P.6: Trap Mahazar Ex.P.6(a to k): Signatures of PW.1 Ex.P.6(l to v): Signatures of PW.2 Ex.P.6(w): Signature of PW.5 Ex.P.6(x & y): Signatures of accused and PW.4 Ex.P.7: CD transcription sheet Ex.P.7(a): Signature of PW.1 Ex.P.7(b): Signature of PW.2 Ex.P.8: Copy of attendance register Ex.P.9: Copy of documents (Page 60 to 90 of charge sheet) 30 Spl. C.C. No.115/2011 Ex.P.10: Sanction order Ex.P.10(a): Signature of PW.3 Ex.P.10(b): Signature of V. Bajappa Ex.P.11: Statement of PW.4 Ex.P.12: St of PW.4 Ex.P.12(a): Signature of PW.4 Ex.P.12(b): Signature of PW.5 Ex.P.13: Complaint Ex.P.13(a): Signature of PW.5 Ex.P.14: FIR Ex.P.14(a): Signature of PW.5 Ex.P.15: Requisition letter Ex.P.15(a): Signature of PW.5 Ex.16: Statement of CW.4 Ex.P.16(a & b): Signatures of PW.5 & CW.4 Ex.P.17: Acknowledgment of seal Ex.P.18: Sample of the seal Ex.P.19: Service records Ex.P.20: Letter dated:08-02-2011 Ex.P.21: Sketch Ex.P.22: Letter dated: 04-02-2011 Ex.P.23: Chemical analysis report Ex.P.24: 164 Statement of Venkatappa Ex.P.24(a): Signature of PW.6 Ex.P.25: Statement of Ashok Ex.P.25(a): Signature of PW.6 Ex.P.26: Statement of Sridhar Thimmegowda Ex.P.26(a): Signature of PW.6 31 Spl. C.C. No.115/2011 Ex.P.27: Statement of CW.5 (PW.7) Ex.P.28: Statement of CW.7 (PW.8) LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: Bottle MO.2: Bottle MO.3: Cover containing CD MO.4: Cover containing CD MO.5 to 13: Eight Bottles MO.14: Cover containing cotton cloth MO.15: Cover containing the CD MO.16: Cover containing the CD MO.17: Cover containing the CD MO.18: Currency notes.
LIST OF WITNESSES EXAMINED FOR ACCUSED:
-NIL-
LIST OF DOCUMENTS MARKED FOR ACCUSED:
-NIL-
(MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) 32 Spl. C.C. No.115/2011 (Judgment pronounced in the open Court vide separate judgment) ORDER The accused is discharged for the present for want of valid sanction to prosecute her.
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)