Karnataka High Court
Mohammed Reaz @ vs State By Belthangadi Police on 13 November, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
WRIT PETITION NO.36340/2017 (GM - RES)
BETWEEN:
MOHAMMED REAZ @ RIYAZ PARANGIPETE
S/O JEEPU CHAIBAVOO
AGED ABOUT 34 YEARS
R/AT 14-143-1A(2), MADDA HOUSE
NEAR MALLIGE FLAT, PARLIYA B MOODA
BANTWAL - 574 219.
... PETITIONER
(BY SRI. MOHAMMED TAHIR, ADV.,)
AND:
STATE BY BELTHANGADI POLICE
DAKSHINA KANNADA
REPRESENTED BY
STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL OFFICE
HIGH COURT COMPLEX
OPP. VIDHANA SOUDHA
BANGALORE - 560 001.
...RESPONDENT
(BY SRI. S. RACHAIAH, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION
482 OF CR.P.C. PRAYING TO QUASH THE IMPUGNED
SANCTION ORDER DATED 21.01.2017 AT ANNEXURE - E
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AND CONSEQUENTLY ALSO THE PROCEEDINGS
INITIATED AGAINST THE PETITIONER AT ANNEXURE - D
IN C.C.171/2017 ON THE FILE OF HON'BLE PRL. CIVIL
JUDGE AND JMFC, BELTHANGADY DAKSHINA KANNADA
ARISING OUT OF FIR NO.315/2015 OF BELTHANGADY
POLICE STATION FOR THE OFFENCES P/U/S 153(A),
295(A) OF IPC WHEREIN PETITIONER IS ARRAYED AS
ACCUSED.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT PASSED THE
FOLLOWING:-
ORDER
Heard the learned counsel for the petitioner. Perused the records.
2. The petitioner has come up before this Court for quashing of the entire proceedings in C.C.No.171/2017 on the file of the Civil Judge and JMFC, Belthangady at Dakshina kannada arising out of FIR No.315/2015 for the offences punishable under Sections 153(A) and 295 (A) of IPC.
3. The learned counsel for the petitioner seriously contends before this Court that the sanction order passed by the Government for the purpose of 3 prosecuting the accused is not based on the materials and it is very bald in nature. On the basis of that, the Court could not have taken cognizance and issued process by registering a criminal case against the accused / petitioner. Secondly, the learned counsel contends that the sanction order is without considering any factual aspects and it is not in compliance with the recognized principles of law. Therefore on that ground, he sought for quashing of the proceedings. He has read the sanction order and submitted that only on the basis of the letter issued by the police, the Government has issued the sanction order. The learned counsel relied upon the decision of the Apex Court reported in AIR 2014 SC 827 between CBI v. ASHOK KUMAR AGGARWAL.
4. Before adverting to the factual aspects of this matter, it is just and necessary to go through the said decision submitted by the learned counsel. The relevant 4 portions are at paragraph Nos.7 and 8, which reads as under:
"7. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the fact and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the Court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the materials facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection 5 available to the accused against whom the sanction is sought.
It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e., FIR, disclosure statements, recovery, memos, draft charge sheet and other materials on record were 6 placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter-alia on the ground that the order suffers from the vice of total non-application of mind.
8. In view of the above, the legal propositions can be summarized as under:
(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material / document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution 7 independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
(c) The power to grant sanction is to be exercise strictly, keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d) The order of sanction should make it evident that the authority had been aware of all relevant facts / materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."
5. On careful perusal of the above said decision, ultimately, the Court has to look into the sanction order and find out whether it is in compliance with the 8 directions issued by the Apex Court. The Court has held that the Competent Authority is bound to look into to the materials placed before it, before passing the sanction order, and if the Court definitely comes to the conclusion that the sanction order is invalid, then Court can pass appropriate orders. However, if the court has got semblance of doubt, then it has got discretion to take cognizance and provide opportunity to both the parties to lead evidence with regard to the sanction order and find out thereafter, as to whether the sanction order is in accordance with law or not and then pass appropriate orders.
6. Bearing in mind the above said ruling, I proceed to consider the materials in this regard. The factual aspects which emanates from the records are that, the police have laid the charge sheet making allegations that the accused persons have committed offences under Sections 153(A) and 295(A) of IPC. 9 Section 196 of Cr.P.C. of course mandates for consent in writing for initiation of the proceedings by the District Magistrate. The Sub-clause(2) of Section 196 of Cr.P.C. categorically states that:
"(2) No court shall take cognizance of the offence of any criminal conspiracy punishable under Section 120-B of the Indian Penal Code, other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings."
7. On meaningful understanding of the above said provision, it is only on the consent of the District Magistrate, such consent order for initiating proceedings can be issued and that order has to be tested during the course of leading evidence. Sanction order or the consent order are altogether different 10 context which are used in various provisions under Code of Criminal Procedure as well as under the provisions of The Prevention of Corruption Act.
8. Now looking back to the order passed by the Government in granting sanction, of course learned counsel is right in stating that the sanction order does not support with the adequate materials. The sanctioning authorities have to go through the entire materials on record available before issuing the order. However, on going through the letter addressed by the police before passing such orders, it has to be noted that whether the required materials have been sent and looked by the Government. It is a matter of fact that has to be considered by providing opportunity to the parties. Therefore, I am of the opinion that when the sanction order is bald, however, the consenting authorities power is not in dispute. The consent order is to be established by leading appropriate evidence. 11 Therefore, in my opinion, the said procedure has to be followed before the trial Court.
9. At the time of taking cognizance, the Court may not be in a position to decide the case with regard to the order passed by the Government. Even on erroneous grounds, cognizance is taken by the trial Court, it can proceed with the matter, if it has doubt with regard to the sanction order.
10. On careful perusal of the entire materials on record, I am of the opinion that the doubt is created on the Government that how it has granted the order, what are the materials obtained by them, though it can be very well established during the course of evidence by providing the materials as to how the sanction order has been granted by the Government.
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11. Under the above said circumstances, I do not find any strong reasons at this stage to quash the entire proceedings. Hence, I proceed to pass the following:
ORDER The petition is dismissed. However, the petitioner is at liberty to file appropriate application for his discharge on the basis of the said order passed by the Government and the trial Court has to consider the same in accordance with law after providing opportunity to both the parties, if necessary after recording evidence on the point of consent order / sanction order.
Sd/-
JUDGE VMB