Karnataka High Court
Sri G Guruprasad vs The State By on 10 July, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO.6822 OF 2015 (GM-RES)
C/W
WRIT PETITION NO.8220 OF 2013 (GM-RES)
IN W.P.NO.6822/2015:
BETWEEN:
KARNATAKA LOKAYUKTA POLICE
M S BUILDING
DR AMBEDKAR VEEDH
REPRESENTED BY
SRI D. PALAKSHAIAH
S/O SRI D. RUDRAIAH
OCC: DY S P
...PETITIONER
(BY SRI B. S. PRASAD, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY UNDER SECRETARY
DEPARTMENT OF PERSONAL ADMINISTRATIVE
REFORMS (6), VIDHANA SOUDHA
BANGALORE-1
2. G.GURUPRASAD
S/O B. GURUBASAVAIAH
AGE: 59 YEARS, OCC: RETD
ADD: NO 1134, 35TH C CROSS
4TH T BLOCK, JAYANAGAR
BANGALORE-41
...RESPONDENTS
(BY SRI KIRAN S. JAVALI, SPP-1 ALONG WITH
2
SRI KRISHNA KUMAR K.K., HCGP FOR R1;
SRI G. PAPIREDDY, SENIOR ADVOCATE FOR
SRI DINESH GAONKAR, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT IN THE NATUER OF CERTIORARI BY QUASHING THE
ORDER DATED 12.02.2014 PASSED BY THE RESPONDENT NO.1
GOVT. ORDER IN NO.CASE 14 SEM 2008 PRODUCED AT
ANNEXURE - C.
IN W.P.NO.8220/2013:
BETWEEN:
SRI G. GURUPRASAD
S/O B. GURUBASAVAIAH
AGED ABOUT 58 YEARS
# 1134, 35TH "C" CROSS
4TH "T" BLOCK, JAYANAGAR
BANGALORE-560041
OFFICE ADDRESS:
CHIEF ENGINEER
WATER RESOURCES DEVELOPMENT ORGANIZATION
ANAND RAO CIRCLE
BANGALORE - 9
(AMENDED AS PER THE ORDER OF THE COURT)
...PETITIONER
(BY SRI G. PAPIREDDY, SENIOR ADVOCATE FOR
SRI DINESH GAONKAR, ADVOCATE)
AND:
1 . THE STATE BY
LOKAYUKTHA POLICE
REPRSENTED BY ITS INSPECTOR
OF POLICE/DEPUTY SUPERINTENDENT
OF POLICE
3
CITY DIVISION
BANGALORE-560001
2 . THE STATE OF KARNATAKA
DEPARTMENT OF PUBLIC WORKS
PORT AND INLAND WATER
RESOURCES
RPRESENTED BY ITS PRINCIPAL
SECRETARY
M S BUILDING
BANGALORE-560001
3 . THE STATE OF KARNTAKA
DEPARTMENT OF PERSONNEL &
ADMINISTRATIVE REFORMS
REPRESENGED BY ITS PRINCIPAL SECRETARY
M S BUILDING
BANGALORE-560001
...RESPONDENTS
(BY SRI KIRAN S. JAVALI, SPP-1 ALONG WITH;
SRI KRISHNA KUMAR K.K., HCGP FOR R2 AND R3;
SRI B.S. PRASAD, ADVOCATE FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR RECORDS PERTAINING TO CRIME NO.52/07 REGISTERED
BY THE RESPONDENT POLICE ON THE FILE OF THE DISTRICT
AND SESSIONS JUDGE, BANGALORE CITY, BANGALORE AND
QUASH THE FIRST INFORMATION REPORT BEARING CRIME
NO.52/07 REGISTERED BY THE RESPONDENT-POLICE ON THE
FILE OF THE DISTRICT AND SESSIONS JUDGE, BANGALORE
CITY, BANGALORE VIDE ANNEXURE-A AND INVESTIGATION
CONDITION THEREUPON.
4
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDER ON 11.04.2023 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THROUGH VIDEO CONFERENCE
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
W.P.No.8220/2013 is filed to quash the First Information Report in Crime No.52/2007 registered by the respondent No.1/police, pending before the District and Sessions Judge, Bengaluru City, Bengaluru.
2. The petitioner claimed that he was employed as Chief Engineer, Department of Irrigation, Bijapur. He claimed that a source report was prepared by the Inspector of Police, Karnataka Lokayukta relating to an officer named G. Guruprasad, a Chief Engineer at BMRCL, Bengaluru, who allegedly had disproportionate assets which was 237% more than his known source of income. He contends that the Chief Engineer at BMRCL was his name sake Mr.B. Guruprasad. However, based on that source report, a First Information report was registered against the petitioner, who is G. Guruprasad but his official designation was shown as Chief Engineer, BMRCL. The 5 petitioner claimed that the authorization granted by the Superintendent of Police to the Deputy Superintendent of Police (Dy.SP) to investigate the offence was in respect of G.Guruprasad, Chief Engineer at BMRCL who was not the petitioner. He contends that a warrant was issued to search the house of the petitioner and the office of Chief Engineer, BMRCL. The Dy.SP raided the house of the petitioner and drew up a mahazar of the house situated at Koramangala and a bank locker at Vijaya bank. Therefore, he contends that the First Information report is based on a mistaken identity of the petitioner and his name sake Sri B. Guruprasad who was the Chief Engineer at BMRCL and therefore, prayed that the criminal proceedings be quashed. He claimed that the Inspector of Police, Lokayukta and not the Dy.SP conducted the investigation in respect of the accounts maintained by him at Karnataka Bank, Koramangala Branch, which was in violation of Section 17 of the Prevention of Corruption Act, 1988 (henceforth referred to as 'the P.C. Act, 1988'). 6
3. Learned Senior counsel for the petitioner reiterated the above contentions and contended that the prosecution of the petitioner is wholly unwarranted, but is based on a mistaken identity.
4. Learned counsel for respondent No.1 contended that the source report clearly indicated the details of the petitioner as a "native of Mamballi village, Yalandur Taluk, Chamarajnagar District. That he joined service as an Assistant Engineer in PWD and was promoted as Assistant Executive Engineer during 1992 and Executive Engineer during 1999 and Superintending Engineer during 2003 and as Chief Engineer in 2007". He contended that these details did not correspond to Mr. B. Guruprasad and therefore, the mistake is not fatal to the prosecution. He submitted that the assets owned by the petitioner were referred to in the source report. Later, it was the house of the petitioner, which was raided and incriminating documents were seized from the house of the petitioner. He therefore, submits that there is no mistaken identity 7 and the investigation was in respect of the petitioner only. He contended that even the search report also showed that it was the house of the petitioner which was searched. He therefore contended that there is no mistaken identity and hence, the proceedings cannot be quashed. In so far as the contention urged by the petitioner under Section 17 of the P.C. Act, 1988 is concerned, he submitted that it was the Dy.SP, who has to investigate an offence under the P.C. Act, 1988. He submits that it was the Dy.SP, who conducted the search of the house of the petitioner and drew up mahazar and as such, there is no procedural irregularity.
5. The petitioner in W.P.No.6822/2015 is the Lokayukta police, which has called in question the legality of an order dated 12.02.2014 passed by respondent No.1 in G.O.No. ಆಸುಇ 14 ೇಇಮು 2008 by which, it rejected the request of the petitioner for sanction under Section 19(1)(b) of the P.C. Act, 1988 to prosecute respondent 8 No.2 for the offence punishable under Section 13(1) (e) read with Section 13(2) of the P.C. Act, 1988.
6. The petitioner claimed that respondent No.2 was employed as a Chief Engineer in the Department of Irrigation, Bijapur. It claimed that on receipt of credible information of commission of an offence punishable under Section 13(1)(e) read with Section 13(2) of the P.C. Act, 1988, by respondent No.2, a First Information Report was registered and a check was conducted for the period 20.10.1977 till the date of the First Information Report. After completion of investigation, the petitioner prepared a final report indicting respondent No.2 of amassing assets to the tune of Rs.95,51,695.27/-, which was 116.09% more than his known source of income. The petitioner claimed that respondent No.2 demolished a house bearing No.730 at Koramangala and constructed a building thereon after obtaining permission in the name of Smt. Lalitha, a fictitious person. It claimed that the source of funds mentioned by the respondent No.2 in the investigation, 9 was not declared either in his income tax returns or in his statements of assets and liabilities filed. The petitioner therefore, requested the competent authority to grant sanction under Section 19(1) (b) of the P.C. Act, 1988 by a letter dated 22.10.2009. After nearly five years, the respondent No.1 rejected the request of the petitioner by an order dated 12.02.2014. Later, respondent No.2 retired from service on 30.09.2014. The petitioner claimed that respondent No.1 rejected the request for sanction on irrelevant considerations. The petitioner claimed that respondent No.1 sat over the request of the petitioner as an Appellate Authority and entertained an explanation from respondent No.2, who filed affidavits of his mother- in-law in support of his defence. The petitioner claimed that respondent No.1 conducted a mini trial while considering the request of the petitioner under Section 19(1)(b) of the P.C. Act, 1988 to prosecute respondent No.2. It further contended that the impugned order passed by respondent No.1 gave a clean chit to respondent No.2 though the material on record disclosed that 10 respondent No.2 was clearly guilty of owning assets more than his known source of income. It further claimed that respondent No.1 was not the authority entitled to remove respondent No.2 under Rule 9 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (henceforth referred as 'the KCS (CCA) Rules, 1957') and it was the Secretary of the Department who was entitled to remove respondent No.2 from service. Hence, the impugned order passed by respondent No.1 is without jurisdiction. The petitioner therefore sought for quashing the order passed by respondent No.1.
7. Respondent No.2, on the other hand, has contested the petition contending that under Rule 7(1) and Rule 9(1) of the KCS (CCA) Rules, 1957, it is respondent No.1, who is the appointing/disciplinary/removing authority. He contended that respondent No.1 is at liberty to consider the material placed before it and to take a decision after due application of mind whether permission to prosecute its servant should be granted or not. He 11 claimed that his mother inherited several properties in Sadashiva Nagar, Palace Guttahalli, Malleshwaram, Sheshadripuram and Bengaluru and agricultural land near Hesaraghatta and Chamarajanagar. He claimed that his father-in-law was an Ex-MLC and landlord, industrialist and diamond merchant. He was also the owner of a Silk Saree Manufacturing unit known as a 'Mamballi Silk Sarees' and was the President of Kuntur Sugar Factory. He claimed that his father-in-law possessed 100 acres of agricultural land, which vested in the State Government after the Karnataka Land Reforms Act, 1961 came into force. He claimed that his wife received valuable gifts from her parents on number of occasions. He claimed that a person named B. Guruprasad was recruited in the year 1992 to the post of Assistant Executive Engineer and was working as Chief Engineer BMRCL, Bengaluru as per promotion and posting order dated 14.05.2007. He claimed that by the same order, he was posted as Chief Engineer, Minor Irrigation (North), Bijapur. He alleged that the petitioner authorized the Dy.SP to register a case under the P.C. Act, 12 1988 against B. Guruprasad, Chief Engineer, BMRCL, Bengaluru by its order 18.12.2007. He claimed that search warrant issued in Crime No.52/2007 and the source report based on the complaint said to have been lodged by Subba Rao, the Police Inspector on 12.02.2007 and the FIR submitted in Crime No.52/2007, all indicated that the Lokayukta Police were authorized to search the house and office of Chief Engineer, BMRCL, Bengaluru. He contended that instead of searching the office of Chief Engineer, BMRCL, Bengaluru, the Lokayukta Police searched the house of Chief Engineer, who was working in the Minor Irrigation Department, North Zone, Bijapur. Respondent No.2 claimed that though he protested, the Investigating Officer did not relent. He claimed that a house purchased by his wife at Jayanagar was rebuilt after reusing salvaged construction material. He claimed that the house warming of his house was done on 16.06.2007 and that respondent No.2 had time till 31.03.2008 to submit the assets and liability statement. He claimed that his wife possessed 5 acres 2 guntas in Mamballi village, Yelandur Taluk and had 13 her own source of income, which were not considered by the petitioner while holding that the petitioner had assets disproportionate to his known source of income. He further contended that though the authorities of the petitioner instructed respondent No.2 to submit Schedules 1 to 23, which was submitted on 16.07.2009, the same was not considered but it was held that respondent No.2 had assets disproportionate to his known source of income. He claimed that he came to know about this from an investigation report received by him under the Right to Information Act, 2005. He claimed that the expenditure for food was arbitrarily shown as Rs.13,09,194/-, while in respect of accused in Crime No.51/2007, the expenditure was shown as Rs.3,76,772/- and in Crime No.22/2006, it was shown as Rs.4,97,262/-. He further contended that his wife was a daughter of a diamond merchant, but the Investigating Officer did not account a single gram of gold to her account and the entire gold and silver articles at the current market value of Rs.11.40 lakhs were shown as expenditure incurred by respondent No.2. He claimed that 14 there were several postal deposits made by his father-in- law in the names of his daughters, which were declared in the statement of assets and liability. He claimed that his mother-in-law had given gifts at the time of purchasing house at Jayanagar, which was disallowed by the Investigating Officer. He claimed that after the death of his father-in-law, all his properties were divided and about 5 acre 2 guntas of wet land in Mamballi village fell to the share of his wife. He claimed that the agricultural income from these lands was considered at a paltry sum of Rs.2.71 lakhs for the period from 1984 to 2007-08, though the actual income was Rs.45.58 lakhs. He claimed that respondent No.1 after noticing the lapses by the Investigating Officer of the petitioner and after being satisfied about the genuinity of the defence raised by respondent No.2, thoughtfully rejected the request of the petitioner. He further submitted that he had filed W.P.No.8220/2013 for quashing the proceedings initiated by the petitioner. During the pendency of the said writ petition, the State Government had passed an order on 15 16.03.2013 which could not be communicated to the petitioner due to the election code of conduct was in force. Later, cabinet of the Minister met on 28.01.2014 and decided to reiterate its earlier decision and the same was intimated to the petitioner on 12.02.2014. He therefore, submitted that the rejection of the request of the petitioner is just and proper and does not warrant any interference.
8. The learned counsel for the petitioner reiterated the contentions raised and contended that respondent No.1 committed an error in hearing respondent No.2 before granting sanction. In this regard, he relied upon the judgment of the Hon'ble Apex Court in the case of State of M.P. Vs. Dr. Krishna Chandra Saksena1. Likewise, he relied upon the judgment of the Hon'ble Apex Court in the case of Indu Bhusan Chatterjee Vs. State of W.B.2 He contended that the petitioner being the investigating agency is entitled to challenge the order of respondent No.1 and in this regard, he relied upon the 1 (1996) 11 SCC 439 2 AIR 1958 SC 148 16 judgment in the case of State of Himachal Pradesh Vs. Nishant Sareen3. He also relied upon the judgment of the Hon'ble Apex Court in the case of Appaji Gowda Vs. Vokkaligara Sangha and Others4. He further relied upon the Division Bench judgment of this Court in W.P.No.29121/2017 and connected writ petitions. The learned counsel contended that respondent No.1 has arbitrarily rejected the request of the petitioner for sanction.
9. Per contra, learned counsel for respondent No.2 contended that the petitioner is not an aggrieved person to challenge the order passed by the State Government refusing to grant sanction to prosecute the government servant. He relied upon a judgment of Co- ordinate Bench of this Court in the case of Karnataka Lokayukta Police Vs. State5. He also relied upon this judgment to contend that the sanctioning authority is entitled to apply its mind before granting or refusing to 3 (2010) 14 SCC 527 4 (2009) 17 SCC 99 5 2021 SCC online Kar. 14931 17 grant sanction. In this regard, he relied upon the judgments of the Hon'ble Apex Court in the case of State of Karnataka Vs. Ameerjan6, Mansukhlal Vithaldas Chauhan Vs. State of Gujrat7 and Central Bureau of Investigation Vs. Ashok Kumar Aggarwal8 .
10. This Court in terms of the order dated 17.08.2022 directed the Chief Secretary to file an affidavit disclosing the stand of the Government on the contention urged by the Lokayukta.
11. Accordingly, the Principal Secretary of the Department of Public Works has filed an elaborate affidavit, which summed up, indicates that after Lokayukta made a request for sanction, the entire papers were placed before the DPAR, which was the competent authority to grant sanction. The respondent No.2 submitted representations dated 08.12.2009 and 30.12.2009 requesting the Secretary, DPAR to reject the request. This 6 (2007) 11 SCC 273 7 (1997) 7 SCC 622 8 (2014) 14 SCC 295 18 was followed by another representation dated 06.02.2010 enclosing certain documents. Later, the DPAR wrote to the Lokayukta for its opinions/comments on the documents furnished by the respondent No.2. Following this, the ADGP, Lokayukta reiterated his findings and sought for sanction to prosecute the respondent No.2. Later a Government Order was issued constituting a Committee under the Chairmanship of the Additional Chief Secretary and the request of the Lokayukta was placed before the Committee, which after considering the materials held that the respondent No.2 had 42.07% assets disproportionate to his income. The file was then placed before the Chief Minister on 13.08.2012, who ordered that the sanction sought for by the Lokayukta be given and this was re- iterated on 03.10.2012. Following this, on 18.10.2012, the Chief Minister made a note regarding the representation of the respondent No.2 on 10.10.2012. The file was then sent to the Committee for re-examination. The Committee met on 23.01.2013 and after examining the records again recommended grant of permission to prosecute the 19 respondent No.2 and the file was ordered to be placed before the Cabinet on 11.03.2013. Later on 16.03.2013, the Cabinet took up the request of the Lokayukta and rejected it, which was not communicated due to the election code of conduct. The case was again taken up on 28.01.2014 and the request of the Lokayukta was rejected. He stated that the DPAR is the competent authority to consider request for grant of sanction to prosecute the respondent No.2 under Section 19 of the P.C. Act, 1988.
12. I have considered the submissions of the learned Senior counsel representing the petitioner in W.P.No.8220/2013 and learned counsel for the petitioner in W.P.No.6822/2015 as well as the learned State Public Prosecutor along with learned High Court Government Pleader for the State.
13. In so far as W.P.No.8220/2013 is concerned, a reading of the provisions of the P.C. Act, 1988, leaves no doubt that an offence punishable under the P.C. Act, 1988 20 has to be investigated by a police officer not below the rank of a Deputy Superintendent of Police (Dy.SP). In so far as an offence punishable under Section 13 of the P.C. Act, 1988, the Superintendent of Police has to authorise a police officer not below the rank of Deputy Superintendent of Police to investigate the offence. In the instant case, based on a source report, a First Information report was registered and the Superintendent of Police authorised the Deputy Superintendent of Police to conduct an investigation. Therefore, the contention of the petitioner that the investigation was done by the police inspector is without any basis and is liable to be rejected.
14. In the instant case, indisputably, there were two officers in the rank of Chief Engineer, one was the petitioner Mr. G. Guruprasad, at Irrigation Department, Bijapur and the other was his name sake Mr. B. Guruprasad at BMRCL. In the source report, it was mentioned as G.Guruprasad "a native of Mamballi village, Yalandur Taluk, Chamarajnagar District. That he joined 21 service as an Assistant Engineer in PWD and was promoted as Assistant Executive Engineer during 1992 and Executive Engineer during 1999 and Superintendent Engineer during 2003 and as Chief Engineer in 2007" which indisputably corresponded to the petitioner, though his official designation was wrongly shown as Chief Engineer, BMRCL. The source report also was in respect of the properties held by the petitioner. The Superintendent of Police authorised the Dy.SP to investigate the offence allegedly committed by the petitioner punishable under Section 13 of the P.C. Act, 1988. A warrant was issued against the petitioner to search the house of the petitioner which was searched and a search report was prepared. Therefore, a mere wrong description of the official designation of the petitioner cannot result in setting at naught the investigation itself, having regard to the fact that the search warrant has yielded incriminating materials against the petitioner. Consequently, the petition filed by the petitioner (G. Guruprasad) is devoid of merit and deserves to be dismissed.
22
15. Now turning to the question whether the competent authority was justified in rejecting the request of the Lokayukta for a sanction under Section 19 of the P.C. Act, 1988 to prosecute the petitioner, which is the subject matter in W.P.No.6822/2015, it is appropriate to first refer to the said provision of law, which is extracted below:-
"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 23 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 24 obtain the sanction for prosecution against the public servant for further proceeding:
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 25 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.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--26
(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 27 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."
16. A reading of the above indicates that in cases, where the request for sanction is made not by a police officer or an officer of an investigating agency, the State Government may issue a notice to the delinquent Government Servant to show cause why sanction should not be granted to prosecute him for the offences punishable under the Act,1988. However, when a request is made by an investigating agency for grant of sanction, the competent authority cannot sit in judgment over the 28 correctness of such request but has to act administratively, and after applying its mind, grant or refuse to grant the sanction (refer Superintendent of Police vs. Deepak Chowdhary and others9). Therefore, when a request for sanction is made by a police officer or an officer of an investigating agency, the question of complying the principles of natural justice, does not arise. The judgments relied upon by the learned counsel for the respondent No.2, all deal with the above position of law and as such are unnecessary to deal with each one of them.
17. Having said so, the police officer or the investigating agency is bound to place on record all the materials gathered in the investigation before the competent authority, so as to enable it to take a decision whether to grant or refuse sanction to prosecute the Government Servant. The competent authority cannot sit in judgment over the request made by the investigation agency, but yet is entitled to peruse the material placed by the investigating agency and take a conscious call whether 9 AIR 1996 SC 186 29 the Government Servant should be prosecuted or not, as the word "sanction" itself inheres due application of mind by the competent authority.
18. In the case on hand, the investigation agency namely, the petitioner in W.P.No.6822/2015 had placed all the materials gathered in the investigation before the competent authority and had arrived at the conclusion that the delinquent Government Servant held assets disproportionate to his known source of income. The investigating agency had given a detailed statement of the properties that the Government Servant and his family members possessed. It had considered all the explanation offered raised by the delinquent Government Servant during the course of investigation.
19. The investigating officer found from Annexures 1 to 23 furnished by the respondent No.2 that the house at Koramangala stood in the name of a lady named Lalitha and that he had taken it on long lease from her and that the lease amount was paid by his father-in-law. He also 30 claimed in his statement made to the Lokayukta that since the conduct of Smt.Lalitha was undesirable, he demanded back the lease amount for which, she executed a GPA and informed him that the lease amount would be repaid after the house is sold. Later, on 27-08-2003, the respondent No.2 sought permission to sell this house for Rs.18,50,000-00 and the State Government granted permission on 18.12.2003. However, when the house was raided by the Lokayukta, the respondent No.2 was found to be in possession of the house and after five months, authorised a person named Deepak Kini to sell it to Subash Bora. The respondent No.2 despite being called upon to present Smt. Lalitha and Deepak Kini failed to produce them and failed to furnish their addresses. The statement of Subash Bora did not tally with the claim made by the respondent No.2 that his wife received Rs.18,50,000-00. Therefore, for these and other reasons, the Lokayukta held that this property was held benami by the respondent No.2. Apart from this, gold ornaments weighing 897 grams, diamond earrings, silver box and silver articles 31 weighing 17 kilograms and 117 grams were recovered. In respect of the house of the respondent No.2 at Jayanagar, the Lokayukta felt that the assertions made by the respondent No.2 that his mother-in-law had paid Rs.8,00,000-00 was not mentioned in the income tax returns or in the statement of assets and liabilities. It also held that the claim of respondent No.2 that his brother had paid a sum of Rs.5,00,000-00 was not believable as his brother was a resident of Trinidad and the respondent No.2 failed to produce him or his passport before the Lokayukta to accept that his brother had come to India during the relevant time. Likewise, the claim of respondent No.2 that his other brother had paid a sum of Rs.3,00,000-00 was not justified as his brother was also a Government Servant and he had not made any declaration of the same in his statement of assets and liabilities or in his income tax returns. The Lokayukta considered each and every declaration made by the Government Servant and allowed certain amounts as income of the respondent No.2 and disallowed some, which has resulted in 116.09% assets 32 more than his known source of income. Though the competent authority did not issue any show cause notice, the respondent No.2 unilaterally represented before the competent authority requesting the authority to accept his justification for the excess income and the properties. The competent authority entertained an affidavit filed by the mother-in-law of the respondent No.2 that she had paid a sum of Rs.8,00,000-00 to the respondent No.2 for the purchase of the house at Jayanagar. Similarly, it accepted the claim of respondent No.2 that a sum of Rs.8,00,000-00 was received from Mr.B.K.Prakash for purchasing the house at Jayanagar. However, the respondent No.2 did not make any declaration of this in his income tax returns or in his assets and liabilities statement. Similarly, the competent authority accepted the claim that the brothers of the respondent No.2 had paid money to enable him to purchase the house at Jayanagar, though no proof thereof was produced.
33
20. It is rather shocking how the competent authority could disbelieve the findings of the investigating agency and sit in appeal over it and entertain affidavits in support of the defence of the respondent No.2, which were disallowed by the investigating officer. The claims made by the respondent No.2 were all defences that he could raise before the Court to establish his innocence. (Refer State of M.P vs Dr Krishna Chandra Saksena10). If the competent authority felt that the investigating agency had not looked into any material, it could have directed the investigating agency to look into it and submit a fresh request. However, it could not itself decide the correctness of the report of the investigating officer (Refer Indu Bhusan Chatterjee vs State of West Bengal11), for, an order granting sanction is merely administrative in nature and not quasi judicial warranting the compliance of the principles of natural justice and to hear the government servant concerned. In this regard, it is apposite to refer 10 1996 (11) SC 439 11 AIR 1958 SC 148 34 the judgment of the Hon'ble Apex Court in the case of Superintendent of Police vs Deepak Chowdhary and others12. The validity of the sanction could be questioned before the Court trying the offence and it is for the investigating agency to establish that the defence raised by the Government Servant was considered by it and adequate materials were placed before the competent authority (refer CBI vs Ashok Kumar Aggarwal13).
21. It is appalling that a request for sanction made in the year 2009 was kept under wraps even after the Chief Minister consented to grant the sanction on 13.08.2012, which was reiterated on 03.10.2012. Later, the respondent No.2 submitted a representation and the Chief Minster made a note thereon, following which, the file was then sent to a Committee headed by Additional Chief Secretary for re-examination. The Committee met on 23.01.2013 and after examining the records again recommended grant of permission to prosecute the 12 AIR 1996 SC 186 13 (2014) 14 SCC 295 35 respondent No.2 and the file was ordered to be placed before the Cabinet on 11.03.2013. Contrarily on 16.03.2013, the Cabinet took up the request of the Lokayukta police and rejected it in terms of the impugned order.
22. The fact that the impugned order was passed after five years and just before the respondent No.2 retired from service makes it more than evident that he used his clout, as a Chief Engineer, and managed to obtain a favourable order at the hands of the competent authority. This Court is not oblivious of the devious methods indulged in by Government Servants at every stage to stifle the prosecution. Therefore, this Court holds that there was adequate material justifying grant of sanction to prosecute the petitioner.
23. Now coming to the most important question that the Lokayukta was not aggrieved by the refusal to grant sanction and therefore, it did not have the locus standi to challenge it, the learned counsel for respondent 36 No.2 relied upon a judgment of a Co-ordinate Bench of this Court in Karnataka Lokayukta Police vs State by Secretary Department of Personnel and Administrative Reforms and others14, where my esteemed Brother considered the aforesaid question and held that the Karnataka Lokayukta Police has no locus standi to challenge an order of the State Government refusing to grant sanction to prosecute a Government Servant. While answering the said issue, my learned Brother rejected the contention of the Lokayukta that the Hon'ble Apex Court in State of Punjab vs Mohammed Iqbal Bhatti15, had recognised the right of an investigating agency to challenge the refusal to grant sanction in view of the observation contained therein namely, "An order refusing to grant sanction may attract judicial review by the superior courts". My learned Brother held that the issue in Bhatti's case (supra) was not whether Lokayukta could challenge an order passed by the 14 (2022) 3 Kant LJ 75 (W.P.No.48249/2018) 15 (2009) 17 SCC 92 37 State Government refusing consent under Section 19 of the P.C. Act, 1988 and therefore, the judgment in Bhatti's case (supra) was not an authority for the seminal question.
24. With all due respect to the erudition of my learned Brother and without meaning any disrespect to his reasoning, I am veering off the beaten track to take a different view.
25. The menace of corruption has eaten into the vitals of public life and was underscored by the Hon'ble Apex Court in Dr.Subramanian Swamy vs Director, Central Bureau of Investigation & Another16 in the following words, "Corruption corrodes the moral fabric of the society and corruption by public servants not only leads to corrosion of the moral fabric of the society but also harmful to the national economy and national interest, as the persons occupying high posts in the Government by misusing their power due to corruption can cause considerable 16 (2014) 8 SCC 682 38 damage to the national economy, national interest and image of the country".
It was further held, "Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the Prevention of Corruption Act, 1988".
26. The Lokayukta, is a statutory independent body constituted for the purpose of improving the standards of public administration, by looking into complaints against administrative actions, including cases of corruption, favouritism and official indiscipline in the administration machinery. The Lokayukta has powers of enquiry into complaints against Government Servants and also to recommend action to be taken by the concerned Government under Section 12 of the Karnataka Lokayukta Act, 1984 (henceforth referred to as the "Act, 1984" in short). It also has power under Section 14 of the Act, 1984 to investigate into complaints and prosecute any Government Servant, who has committed any criminal 39 offence and if sanction to prosecute such a Government Servant is required, notwithstanding anything contained in any law, such sanction is deemed to be sanctioned by the competent authority. The P.C. Act, 1988 is a subsequent enactment which mandates that sanction has to be obtained before prosecuting a government servant, which is in stark contrast with the power of the Lokayuktha under Section 14 of the Act,1984. This Court has not dealt with the question whether the provisions of the Act, 1984 is repugnant to the provisions of Act, 1988. Be that as it may, the words "save as otherwise provided in the Lokpal and Lokayuktas Act, 2013" in Section 19 of the P.C. Act, 1988, would have some relevance to save both the provisions by applying the doctrine of pith and substance.
27. In addition to the powers under the Act, 1984, the Government of Karnataka issued a notification dated 06.02.1991 under Section 17 of the P.C. Act, 1988 investing Police Officers of the Karnataka Lokayukta with the power to investigate offences under the P.C. Act, 1988 40 and for this purpose issued a notification dated 06.02.1991 under Section 2(s) of the Code of Criminal Procedure. Following this, subsequent notifications dated 02.11.1992, 08.05.2002 and 05.12.2002 were issued, by which the powers of investigation of offences under the P.C. Act, 1988 were invested in the police officers of Lokayukta, subject however to the overall control and supervision of the Lokayukta or Upa-Lokayukta as the case may be. However, any prosecution of a Government Servant by the concerned police officer was to be only after obtaining consent from the competent authority under Section 19 of the P.C. Act, 1988.
28. The moot question is when such a request if rejected by the competent authority, can the Lokayukta challenge it before this Court.
29. It is relevant to note that until the powers under Section 17 of the P.C. Act, 1988 were conferred upon the police officers of the Lokayukta and until it was declared as a police station under Section 2 (s) of Code of 41 Criminal Procedure, investigation was done by an officer of the State not below the rank of a Dy.SP and prosecution could be initiated after obtaining sanction under Section 19 of the P.C. Act, 1988. If the request of such investigating officer for sanction to prosecution is refused by the State, he being a subordinate of the State cannot invariably challenge the action of his master. The situation might be different, when the Lokayukta police, being an independent statutory body and not answerable to the State challenges an order refusing to grant sanction. The consequential question would be whether the Lokayukta police has any institutional locus to challenge the order of the competent authority refusing sanction under Section 19 of the P.C. Act, 1988. The Lokayukta may not be affected or interested in the outcome of an investigation or a prosecution and in that sense, it may not be an aggrieved person, but its creation by a statute is for an avowed purpose to stem corruption in governance and therefore, to hold that the Lokayukta has no locus standi to challenge an order passed by the competent authority 42 would be de-clawing the Lokayukta police of its powers and leaving a window for the Government Servants to exploit. While saying so, I am conscious that a Judge should decide the case as the law stands and not what the law should be. The Hon'ble Apex Court in State of Himachal Pradesh vs Nishant Sareen17 held "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."
30. The Hon'ble Apex Court in Dr. Subramaniam Swamy vs Dr. Manmohan Singh and another18 held "The procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption" 17
(2010) 14 SCC 527 18 (2012) 3 SCC 64 43
31. A somewhat analogous situation arose before the Division Bench of this Court in the case of The Registrar, Karnataka Lokayukta vs Dr.Dakshayini.K and others (W.P.No.58804/2016) while dealing with a petition filed by the Lokayukta challenging an Order passed by the Administrative Tribunal setting aside an Order passed by the State Government entrusting the enquiry to the Lokayukta. The Division Bench of this Court held that Lokayukta is not a person aggrieved by the order passed by the Administrative Tribunal, as it was the order of the State Government that was set aside. In The Lokayukta and another vs Sri. Prakash T.V. and others19, a Division Bench of this Court of which, I was a member held that the Lokayukta has the locus standi to challenge the Order passed by the Administrative Tribunal. This Court distinguished the judgment in Dr.Dhakshayini on facts and held, 19 ILR 2021 KAR 4117 44 "Therefore the Lokayuktha being a statutory body constituted to curb the menace, has an institutional interest and as well as the locus" .
32. This Court is not oblivious of the changing trends of locus standi, particularly in the light of deteriorating economic / cultural / social / political / administrative scene in the country. The Hon'ble Apex Court held in Fertilizer Corporation Kamgar Union (Regd), Sindri and others vs Union of India and others20, "But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Article 226 or under Article 32 of the Constitution".
33. The central theme of the P.C. Act, 1988 is to prevent corruption at all levels and the Lokayukta being set up by a statute to stem corruption at all levels cannot 20 AIR 1981 SC 344 45 be held to have no institutional locus standi to challenge the orders passed by the competent authority refusing sanction under Section 19 of the P.C. Act, 1988. An extension of the institutional locus of the Lokayukta would only sub-serve the purpose of the Act of 1984 and the P.C. Act, 1988 and a deprivation of such locus can be regressive. However, since my view is not in sync with the view expressed by my learned Brother in W.P.No.48249/2018 (supra), it is appropriate that the file be placed before Hon'ble The Chief Justice for suitable action.
34. In view of the aforesaid discussion, W.P.No.8220/2013 lacks merit and is dismissed.
35. The file in W.P.No.6822/2015 is ordered to be delinked from W.P.No.8220/2013 and placed before Hon'ble The Chief Justice requesting His Lordship to consider referring the following question for determination by a larger bench:-
46
"Whether the Lokayukta has any institutional locus-standi to challenge an order passed by the competent authority refusing to grant sanction under Section 19 of the Prevention of Corruption Act, 1988 to prosecute a Government Servant?"
36. Office is directed to place a copy of this order in W.P.No.6822/2015.
37. List W.P.No.6822/2015 after the aforesaid question is answered by the appropriate Bench.
Sd/-
JUDGE RSP/PMR