Karnataka High Court
S Subbegowda vs State Of Karnataka on 16 August, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION No.4463 OF 2018
BETWEEN:
S. Subbegowda
Executive Engineer
Karnataka Urban Water
Supply and Drainage Board
Mandya District - 571701. ...Petitioner
(By Sri. H.M. Thimmarayappa, Advocate)
AND:
1. State of Karnataka Lokayuktha
Police, Bangalore Rural District
Bangalore.
Rep. by Special Public Prosecutor
2. IX Additional District & Sessions Court
Bangalore Rural District
Bangalore. ...Respondents
(By Sri. B.S. Prasad, SPP)
This Criminal petition is filed under Section 482 of
Cr.P.C. praying to set aside the order dated 05.06.2018 and
he may be discharged from the Spl. Case No.488/2011
pending on the file of IX Additional District and Sessions
Judge, Bengaluru Rural District, Bengaluru.
This Criminal petition coming on for Final Hearing, this
day, the Court made the following:
2
ORDER
Petitioner has been facing trial for the offence punishable under Section 13(1)(e) r/w Section 13(2) of the Prevention of Corruption Act, 1988 on the allegation that during his tenure as Executive Engineer in Karnataka Urban Water Supply and Drainage Board between 28.04.1983 to 18.01.2007 he has amassed assets disproportionate to his known source of income to the tune of Rs.2,93,00,000/-
2. In the course of trial, the petitioner moved an application under Sections 227 and 239 of Cr.P.C. seeking discharge. The said application was dismissed on 01.02.2013. Against the order of dismissal, the petitioner preferred Crl.R.P. No.287/2013 before this Court, which was dismissed by order dated 05.07.2013 with a direction to the Sessions Judge "to consider the documents made available by the petitioner during investigation and produced by the prosecution with the charge sheet while framing charges without being influenced by the said order". Thereafter, the petitioner filed a second application under Sections 227 and 3 239 of Cr.P.C. seeking his discharge. He withdrew the said application and accordingly, said application came to be dismissed as withdrawn on 02.12.2014. Thereafter, the charges were framed against the petitioner for the above offences and 17 witnesses were examined on behalf of the petitioner and at that stage, petitioner moved third application under Section 227 and 239 of Cr.P.C., seeking his discharge on the ground that the sanction accorded for the prosecution of the petitioner was defective.
3. It was contended in the petition that the petitioner was an employee of Karnataka Urban Water Supply and Drainage Board and he was appointed by the Board under Section 9 of the said Act and in view of Section 69 of the Act, the employees of the Board, including the petitioner could be removed from service under Rule 10 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 only by the Board. Whereas, in the instant case, the sanction was accorded by the Government which was totally incompetent to accord sanction for the 4 prosecution of the petitioner and hence, the petitioner is entitled to be discharged from the prosecution.
4. By the impugned order, the learned Special Judge has dismissed the application holding that the third application filed by the petitioner for the same relief cannot be maintained and further, the learned Special Judge has observed that the Government being the Superior Authority to the Karnataka Urban Water Supply and Drainage Board, the sanction accorded by the Government is proper and valid.
5. The learned counsel for the petitioner, placing reliance on Section 19 of the Prevention of Corruption Act would contend that the petitioner being an employee of the Board only the Managing Director of Karnataka Urban Water Supply and Drainage Board, Bengaluru, is the competent authority to remove the petitioner from service and therefore, only the Managing Director of the Board was competent to accord sanction for the prosecution of the 5 petitioner. Hence, the sanction accorded by the Government is illegal and cannot be sustained.
6. In support of his arguments, the learned counsel has placed reliance on as many as 11 decisions which mainly deal with the proposition that only the Authority competent to appoint and remove the Government Servant is competent to issue sanction for the prosecution of the public servant under Section 19 of the Prevention of Corruption Act.
7. Refuting the contentions, learned counsel for the respondent would contend that the contention urged by the petitioner was decided by the Special Court at the earlier instance while rejecting his application under Sections 227 and 239 of Cr.P.C., before framing charge. The said order has been confirmed by this Court. Therefore, the petitioner is not entitled to maintain successive petition for the same relief. Further, he submits that the petitioner being employed in connection with the affairs of the State, the Government is the competent 6 authority to issue the sanction order in terms of Section 19(1)(b) of the Act. In support of his arguments, learned counsel has placed reliance on the decision of Supreme Court of India in the case of State of Tamil Nadu vs. T. Thulasingam and others, reported in AIR 1995 SC 1314 and with reference to para 75 would contend that the Government itself having appointed the employee, the sanction granted by the Government is proper.
8. Considered the submissions and perused the records.
9. No doubt, it is true that the petitioner/accused has moved successive applications for his discharge under Sections 227 and 239 of Cr.P.C., and two of them have been rejected by the Special Judge; but there is nothing in those orders to indicate that the issue of sanction has been considered and decided by the Special Judge at any time earlier to the impugned order. Though there is a passing reference in the order dated 01.02.2013, but the Special Judge has not recorded any finding with regard to the 7 validity of the sanction order issued in this case. Therefore, in my view, petitioner is not prevented from seeking his discharge on the ground of improper sanction. In this context, it is also significant to note that while remanding the matter to the trial Court for consideration of the discharge application afresh this Court had directed the trial Court to consider the documents produced by the prosecution as well as by the accused and pass appropriate orders thereon. Therefore, it was incumbent on the Court to consider the validity of the sanction order. The trial Court having not adjudicated on the validity of the sanction order, in my view, third application filed by the petitioner does not take away the legal right of the petitioner to seek his discharge on the ground of improper sanction.
10. It is now well settled that grant of prior sanction by a competent authority is a sine qua non for taking cognizance of the offences under the provisions of the P.C. Act. Existence of valid sanction is a condition precedent for taking cognizance of the offences enumerated under the 8 Act. Granting of sanction is not a mere formality. When a sanction is granted by a person not authorized in law, the same being without jurisdiction would be a nullity. Likewise, the prosecution of a Public servant without valid sanction renders the entire proceedings void abinito. Grant of prior sanction and validity thereof is therefore jurisdictional question which goes to the very root of the matter. Therefore, it follows that the validity of the sanction order and competence of the authorized officer would not only affect the proceeding, but would also impinge upon the rights of the accused.
11. In the background of the above legal position, if the sanction accorded in the present case is scrutinized, it is seen that the sanction order in this case is issued by the Governor of Karnataka and signed by the Under Secretary to the Urban Development Department. It is issued in the name and seal of the Governor of Karnataka.
12. It is not in dispute that the petitioner was an employee of Karnataka Water Supply and Drainage Board. 9 He was appointed as Assistant Engineer by the Board on 28.04.1983. As per Section 4 of the Act, the Board consists of:-
a) Chairman,
b) a Managing Director,
c) Three Directors to represent respectively by Government Secretariat Department dealing in-
(i) Finance
(ii) Health and Municipal Administration;
(iii) Public Works
(d) Four Directors to represent the local authorities, one from each revenue division;
(e) eight other directors of whom four shall be persons possession wide experience in the field of public health engineering with reference to Water Supply or drainage of disposal of industrial wastes, who are not employed by the Government or a local authority or a corporation owned or controlled by the Government.
(2) The Chairman and the Managing Director shall possess the prescribed qualification. They and the other directors shall be appointed by the Government. 10
13. Section 9 of Karnataka Urban Water Supply & Drainage Board Act, 1973(for short hereinafter referred to as 'The Act') provides for Appointment of Secretary, Chief Engineer, Accounts Officer and other Officers and Servants of the Board.
14. From the above, it is crystal clear that the Board has been conferred with the power to appoint the officers and servants of the Board as it considers necessary for the efficient performance of its functions. The proviso provides that the appointment of the Secretary, Chief Engineer and the Accounts Officer shall be made with the previous approval of the Government. But that by itself does not invest the power of appointment with the Government. Even though Section 53 of the Act provides that the Government may issue to the Board or to the local authority concerned such orders and directions as in its opinion are necessary or expedient for carrying out the purposes of this Act and the Board or such local authority as the case may be, shall give effect to all such orders and directions, but the said provision also does not empower the Government 11 to appoint the Secretary, Chief Engineer and the Accounts Officer of the Board. In this context, it is also relevant to note that in exercise of power conferred by sub-section(1) and (2) of section 69 of the Act, a notification dated 17.10.1976 has been issued by the Karnataka Urban Water Supply and Development Board Regulation, 1977. As per the said notification, the Karnataka State Civil Services(Conduct) Rules, 1966, The Karnataka Financial Code and The Karnataka Civil Services(Classification, Control and Appeal) Rules, 1957 and all other rules regulating the condition of services of Civil servants of the State Government for the time being in force with amendment issued from time to time by the Government shall mutatis mutandis are applicable to the Officers and Servants of the Board.
15. Thus from the above, it is clear that the power of appointment and the removal of the servants and officers of the Board are vested exclusively with the Board and hence the sanction accorded for the prosecution of the accused by 12 the Government is wholly illegal and without jurisdiction. Consequently, the cognizance of the alleged offences and the proceedings conducted by the Special Judge are rendered void abinitio.
16. In view of the above conclusion, the petition is allowed. The petitioner is discharged of the alleged offences. The investigating Authority is directed to place the charge sheet papers and the relevant documents before the competent authority or disciplinary authority for sanction and depending upon the action taken by the sanctioning authority, the respondent is at liberty to take further action in accordance with law.
Sd/-
JUDGE NR/SN/mn/-