Andhra HC (Pre-Telangana)
G. Audiseshaiah vs The State Of A.P,Rep. By The Spl. Public ... on 27 August, 2014
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Revision Case No.2042 of 2006
27-08-2014
G. Audiseshaiah.... Appellant
The State of A.P,Rep. by the Spl. Public Prosecutor,Through Inspector of
Police, ACB Nellore.. Respondent
Counsel for Appellant : Sri G. Elisha
Counsel for Respondent : Sri Ghani A Musa,
Special Public Prosecutor
<Gist:
>Head Note:
? Cases referred:
1)2003 Cri.L.J 1896 AP
2)CDJ 2014 SC 639
3)1973 Crl.L.J. 1881 (Allahabad)
4) 1993 Crl.L.J.1545 (Madras)
HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
Criminal Revision Case No.2042 of 2006
ORDER:
This Crl. Rev. Case is directed by the petitioner/accused against the order dated 11.08.2006 in Crl.M.P.No.515 of 2006 in C.C.No.26 of 2005 passed by the learned Special Judge for SPE & ACB cases, Nellore refusing to accord consent under Section 321 Cr.P.C to the Public Prosecutor to withdraw the case against the Accused Officer (AO) who was facing charges under Sections 7 and 13(2) r/w 13 (1)(d) of Prevention of Corruption Act, 1988 (for short P.C. Act) on the allegation that he being a Senior Accountant in the office of District Treasury Office, Nellore, a public servant, demanded and accepted bribe of Rs.2,000/- from the complainant, who is an Assistant Executive Engineer, R & B Quality Control, Sub- Division, Nellore for passing the bill of increment arrears on 11.01.2005 and successfully trapped by the ACB officers on the complaint given by the complainant.
2) The Special Public Prosecutor filed petition before the trial Court seeking consent to withdraw the case against AO on the ground that the Government, on the petition moved by the AO, issued G.O.Ms.No.417 dated 25.11.2005 cancelling its earlier orders issued in G.O.Ms.No.187 Finance (Admin-III) department dated 26.07.2005 according sanction for prosecution of the AO, observing that ends of justice would be met if the AO is placed on his defence before the Tribunal for disciplinary proceedings instead of prosecution and also departmental action. The Government wanted to withdraw the prosecution and issued orders in Memo No.1764- B/30/A1/Admin-III/2005 dated 29.01.2005 and placed AO on defence before the Tribunal for disciplinary proceedings to enquire into the allegations of corruption. The Special Public Prosecutor submitted that in view of the consequent orders issued by the Director General, Anti Corruption Bureau (ACB), Hyderabad in R.C.No.6/RCT-NNL/2005 dated 10.04.2006 requesting the Special Public Prosecutor to file petition under Section 321 Cr.P.C before the trial Court, he filed the petition and sought for the consent of the trial Court as required under Section 321 Cr.P.C.
3) The trial Court refused to accord sanction on the following observations:
a) That the sanction once accorded under the Act cannot be withdrawn or rescinded and Government has no authority to withdraw or cancel the sanction order already issued to prosecute the accused and that the ultimate decision to withdraw from prosecution should rest with the Public Prosecutor only as held in a decision reported in M. Veeraiah Chowdary vs. The State of Andhra Pradesh .
b) That the Public Prosecutor being the minister of justice has to apply his independent mind and exercise his discretion. He shall act as a limb of the judicial process but not as an extension of the Executive. The decision to withdraw must be of the Public Prosecutor and not of other authorities.
c) That the Governments decision to place the AO on defence before the Tribunal for disciplinary proceedings cannot be a ground for withdrawing the prosecution.
On the above observations, the trial Court dismissed the petition filed by the Special Public Prosecutor.
Hence the Criminal Revision Case moved by the AO.
4) Heard arguments of Sri Pradyumna Kumar Reddy, learned counsel for petitioner/AO and Sri Ghani A Musa, learned Special Standing Counsel for ACB (Spl.S.C.).
5a) Impugning the order of the trial Court, learned counsel for revision petitioner firstly argued that the trial Court ought to have seen that the Government was not totally withdrawing the prosecution against the AO but only changing the forum from the trail Court to the Tribunal for disciplinary proceedings and therefore, the trial Court ought to have considered the issue objectively and accorded consent for withdrawal of the prosecution.
b) Secondly, he would argue that the trial Court mistook that the move to withdraw from prosecution has not emanated from the Special Public Prosecutor. He submitted that the Government under G.O.Ms.No.117 dated 25.11.2005 had only cancelled its earlier orders issued in G.O.Ms.No.187 according sanction for prosecution but the move to withdraw prosecution was originated from the Special Public Prosecutor on his independent consideration of the matter. Therefore, the view of the trial Court that Special Public Prosecutor has not independently applied his mind and exercised his discretion was not correct. He thus prayed to allow the revision petition. He cited the decision reported in Bairam Muralidhar vs. State of Andhra Pradesh on the duty of Public Prosecutor and role of the Court in a petition under Section 321 Cr.P.C.
6) Per contra, vehemently opposing the revision petition, learned Spl.S.C would argue that the charge against the AO is under Prevention of Corruption Act and as such the sanction once accorded by the Government cannot be re-backed as held in the M. Veeraiah Chowdarys case (1 supra). Be that it may, the ground shown for withdrawal of prosecution i.e, placing the AO on defence before the Tribunal for disciplinary proceedings will not in any way advance the public interest or the administration of criminal justice which is sine qua non for according consent by trial Court and therefore, the trial Court was right in rejecting the petition. He vehemently argued that initiation of departmental proceedings or the proceedings before the Tribunal for Disciplinary proceedings cannot serve a good reason to seek for consent to withdraw the prosecution since criminal prosecution stands altogether on a different footing. He thus prayed to dismiss the revision petition.
7) In the light of above arguments, the points arise for determination are:
1. Whether the Government can withdraw the consent once given under Section 19 of P.C Act?
2. Whether the learned Special Public Prosecutor has exercised his independent application of mind in invoking petition under Section 321 Cr.P.C.?
3. Whether the Governments decision to place AO on his defence before the Tribunal for disciplinary proceedings is a sufficient and good ground to accord consent by the Court?
8a) POINT No.1: As already narrated supra, the AO is facing charges under Sections 7 and 13 (2) r/w 1(1)(d) of PC Act for soliciting bribe to do an official favour. The Government have earlier issued sanction order for prosecution of AO vide G.O.Ms.No.187 Finance (Admn.III) Department dated 26.07.2005. The impugned order reads as if on the petition filed by AO stating that allegation of demand of bribe levelled against him by the complainant is false as the concerned bill was audited by him on 29.12.2004 and sent to the S.T.O. for scrutiny, the Government seemingly convinced and issued another G.O.Ms.No.417 dated 25.11.2005 withdrawing the earlier G.O.Ms.No.187, according consent and proposed to place the AO on his defence before the Tribunal for disciplinary proceedings instead of facing prosecution before the trial Court and also departmental action.
b) In this back drop, a pertinent question that would arise is when once the Government, on perusal of entire material relating to the allegations touching the corruption of a public servant and on due application of mind having issued sanction for his prosecution basing on which consequential acts are followed in a court of law, can withdraw consent not on the ground that subsequent material came to its notice revealed the innocence of the accused but on a simple ground since the accused says that he did not commit the act of corruption and in fact there was no occasion for him to demand bribe.
c) It is well known that for taking cognizance of an offence punishable under Sections 7, 10, 13 and 15 of PC Act against a public servant the concerned Court requires previous sanction of competent authority to prosecute the said public servant. It is a sort of protective mechanism against the mischievous and motivated complaints against honest and duty bound public servants. Section 19 of P.C Act which provides such mechanism reads thus:
Section 19 - Previous sanction necessary for prosecution:--
(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1)should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation.
For the purposes of this section,
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
d) A perusal of Section 19 and relevant case law would denote that the sanctioning authority, on perusal of entire material before it and on due application of mind, shall come to a conclusion as to whether or not accord sanction to prosecute concerned public servant. When once that exercise is completed and concomitant acts are being followed in a court of law and when there arose no compelling and justifiable reasons, the Government cannot withdraw the sanction once accorded. In fact, Section 19 has not saddled the Government with such power, as can be seen from the language of the section. Whether the Government can assume such power under other enactments was dealt with by a learned single Judge of this High Court in M.Veeraiah Chowdarys case (1 supra). Learned Judge on perusal of Section 21 of Central General Clauses Act and Section 15 of AP General Clauses Act and also the relevant case law has held thus:
19. From the above, it is evident that Section 21 of the General Clauses Act (or other analogous provisions in the: State enactments) does not by itself confer power on the Government to rescind notification and the existence of such a power has to be culled out from the provisions of the enactment under which the notifications came to be issued.
20. The orders issued by the State Government according permission under Section 19(1) of the Act radically differ from the other administrative orders in many respects. One of the distinguishing features is that with the grant of permission under Section 19(1), the prosecution against the accused public servant stands launched and thereafter nothing remains to be done by the Government, which accorded the sanction. So far as the other administrative orders are concerned, the subject-matter, the evaluation of pros and cons by the Government, the subsequent changes in the matter or policy of the Government, etc., may, require the Government to respond to such situations.
The administrative actions by their very nature are not static. They need to be taken, monitored from time to time, and changed or rescinded, depending on the circumstances. Such an exercise will be possible if only the Government continues to be in control of the situation after initiation of the action. The same however does not hold good in case of according sanction for taking cognizance of the matters or putting the adjudicatory process in motion. Once such sanction is accorded, the respective Courts or Tribunals will be in seisin of the matter and the same need to be adjudicated in accordance with the relevant statutes.
Thus, it was held that the competent authority who issued sanction proceedings cannot exercise its power either under Section 19 of P.C. Act or under Section 21 of the Central General Clauses Act or Section 15 of the A.P. General Clauses Act to withdraw the sanction. I endorse the same view. Therefore, in the instant case the Government was not justified in withdrawing the sanction. This point is answered accordingly.
9 a) POINT No.2: The role of public prosecutor in moving an application under Section 321 Cr.P.C. is independent and significant. His job is not that of a postman to just convey Governments intention to withdraw the case. On the other hand, on a careful appraisal of material before him, he should come to an independent conclusion that there exists a strong material to withdraw the case and in doing so his act should serve the public interest and advance the cause of administration of criminal justice. The Government or any other authority in this regard cannot command him but only commend and so also cannot demand him but can only denote the need for withdrawal. However, the decision must gush out from the fountain head of his independent thinking and backed by a valid and justifiable ground like the subsequent material which was unearthed showing the absolute innocence of the accused or the closure of prosecution will bring harmony and peace among the members of the society or the like.
b) In Bairam Muralidhars case (2 supra) the Honourable Apex Court delineated the role of public prosecutor thus:
18. the central question is whether the public prosecutor has really applied his mind to all the relevant materials on record and satisfied himself that the withdrawal from the prosecution would subserve the cause of public interest or not. Be it stated, it is the obligation of the public prosecutor to state what material he has considered. It has to be set out in brief.
c) In the instant case, as can be seen from the impugned order unfortunately it does not appear learned special public prosecutor served the purpose more than a postman. Except voicing the Governments order that when the AO already audited arrears bill on 29.12.2004 and sent the same to S.T.O. for scrutiny and as such there was no occasion for him to accept bribe on 11.01.2005 and seeking consent of the Court on that score, learned Special Public Prosecutor has not made an objective assessment of material on record. Even assuming that AOs version that he audited the bill on 29.12.2004 and sent to S.T.O. for scrutiny is true, still the possibility of his putting LW1 in ignorance of this fact and demanding bribe cannot be ruled out. So, the AOs version may at best serve as a shield of defence but not a sword to close the prosecution. All these facts have to be decided only after full fledged trial. Learned Special Public Prosecutor should have visualized this possibility before embarking upon filing petition seeking consent of the court. Therefore, I am constrained to hold that Special public prosecutor has not given an independent and objective consideration of the matter. This point is answered accordingly. 10 a) POINT No.3: The next aspect for consideration is whether decision of the Government to direct AO to appear before the Tribunal for disciplinary proceedings can be a good ground for prosecution to withdraw the case and the Court to accord consent. The answer is emphatic no because the ground on which prosecution seeks withdrawal of the case will not subserve the avowed object of public interest and advancement of criminal justice. It may at best serve the interest of AO but not the society which has a right to demand for prosecution of an accused who faces corruption charges. We have a number of decisions in this regard.
b) In State v. Mohmood Butt and others learned Judge in similar circumstances observed thus:
18. In my opinion the mere holding of an administrative enquiry by the Chief Secretary of the U.P. Government; is not a sufficient ground to subvert the normal course of justice. Departmental action in the case of an officer of Government is something within its exclusive jurisdiction. Courts of law are not concerned with the departmental or administrative enquiries and the result of such enquiries. I, therefore do not consider this a sufficient ground for according my sanction to the withdrawal application
c) The above judgment was followed by the Madras High Court in its judgment in Moulana Basha v. State rep. by the Inspector of Police wherein it was held thus:
Where a prosecution before a Criminal Court and a departmental proceeding can separately exist, to my mind, the consent to withdraw from the prosecution cannot be granted merely on that score. The pendency of a departmental enquiry will not be a sufficient ground for consenting to withdraw the pending prosecution. I gain support for my view, from P.N.Bakshi, J. of the Allahabad High Court, in State v. M.Butt.
d) Thus, there can be no two opinions that taking up departmental proceedings cannot be held as a ground for giving consent to prosecution to withdraw the case under Section 321 Cr.P.C. They both being parallel and water tight compartments, concerned authority or public prosecutor cannot implore the Court to give consent for withdrawal of prosecution on the ground of continuing only departmental proceedings against the errant officer. This point is accordingly answered.
11) In the result, in view of the above discussion, the decision of the trial Court was impeccable and impregnable and there are no merits in the Crl.R.C. Accordingly, Crl.R.C. is dismissed by confirming the order of the trial Court passed in Crl.M.P.No.515 of 2006 in C.C.No.26 of 2005.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_______________________ U. DURGA PRASAD RAO, J Date: 27.08.2014