Karnataka High Court
Syed Ifthekar Ahmed vs State By Karnataka Lokayuktha on 4 December, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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CRL.P No. 2721 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 2721 OF 2017
BETWEEN:
SYED IFTHEKAR AHMED
S/O LATE SYED SHAFIQ AHMED
AGED ABOUT 56 YEARS,
R/AT NO.88, 2ND CROSS, 3RD STAGE,
J.P. NAGAR, BANGALORE - 560 078.
...PETITIONER
(BY SRI. P.S. RAJAGOPAL, SENIOR COUNSEL FOR
SRI. NAGENDRA NAIK R., ADVOCATE)
AND:
1. STATE BY KARNATAKA LOKAYUKTHA
CITY DIVISION, M.S. BUILDING
BANGALORE
REPRESENTED BY ITS
SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
Digitally signed by B
BANGALORE - 560 001.
K
MAHENDRAKUMAR
Location: HIGH 2. SRI SHANMUGAM
COURT OF
KARNATAKA S/O LATE K. DORAI SWAMY,
AGED ABOUT 52 YEARS,
R/AT OLD NO.10, NEW NO.06,
4TH CROSS, 'B' MAIN,
MUNESHWARA BLOCK, PALACE GUTTALLI,
BANGALORE - 560 003.
...RESPONDENTS
(BY SRI. VENKATESH S. ARBATTI, ADVOCATE FOR R1;
R2 SERVED - UNREPRESENTED)
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NC: 2024:KHC:50007
CRL.P No. 2721 of 2017
THIS CRL.P IS FILED U/S. 482 CR.P.C PRAYING TO
QUASH THE ORDER DATED 24.01.2017 IN SPL.C.C.NO.59/2013
ON THE FILE OF LXXVI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE FOR PREVENTION
OF CORRUPTION ACT, BENGALURU AND TO DISCHARGE
THE ACCUSED IN SPL.C.C.NO.59/2013 ON THE FILE OF THE
LXXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE FOR PREVENTION OF CORRUPTION ACT
AND ETC.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
ORAL ORDER
The petitioner challenges the order dated 24.01.2017 passed by the learned LXXVI Additional Sessions Judge in Special C.C. No. 59/2013, wherein the petitioner's request for discharge from the offences punishable under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act was rejected.
2. The respondent-Lokayukta registered a case against the petitioner in Crime No. 1/2012, alleging that when the complainant went to the office of the KIADB to inquire about a pending work, one Mr. Paramesh confirmed the pendency of the work and directed him to meet one Javaregowda. The petitioner, who was working as a Development Officer and Executive Engineer in the KIADB, allegedly demanded a sum of Rs. 1 lakh as gratification. The -3- NC: 2024:KHC:50007 CRL.P No. 2721 of 2017 complainant, unwilling to pay the demanded amount, approached the Lokayukta Police. The complainant was provided with a voice recorder to record his conversation with the accused. Subsequently, the complainant went to the office of the accused, recorded the conversation, and after verification, the Police laid a trap and arrested the accused, initiating an investigation. The Lokayukta Police then requested the competent authority to grant sanction under Section 19 of the Prevention of Corruption Act.
3. The Board of Directors of the KIADB, which is the competent authority to remove the petitioner from service, after recording the reasons, resolved on 7.11.2012 to grant sanction to prosecute the petitioner.
4. Following the decision of the Board of Directors, the Chief Executive Officer-cum-Executive Member of the Board passed the order dated 18.01.2013, granting permission to prosecute the petitioner for the aforementioned offences. Based on the final report submitted by the respondent-Lokayukta and the sanction to prosecute granted by the competent authority, the learned Sessions Judge took cognizance of the offences vide order dated 19.03.2013. Thereafter, the impugned order dated 24.01.2017 was passed, dismissing the application for discharge and framing charges as stated in paragraph 1 above.
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5. Sri P.S. Rajagopal, learned senior counsel representing the petitioner, argues that the decision taken by the Board to grant sanction to prosecute, and the subsequent order passed by the Chief Executive Officer, do not satisfy the requirements of Section 19 of the P.C. Act. He contends that the decision of the sanctioning authority to grant sanction is made without application of mind, as no reasons were assigned for granting sanction. Additionally, the CEO and Executive Member, instead of merely communicating the Board's decision, recorded reasons contrary to those given by the Board and passed an order granting sanction to prosecute, which is impermissible and lacks legal authority.
6. In support, reliance is placed on the following decisions:
1) K. VEERASWAMI v. UNION OF INDIA (1991) 3 SCC 655
2) STATE OF U.P v. MAHARAJA DHARMANDER PRASAD SINGH (1989) 2 SCC 505
3) ANIRUDHSINHJI KARANSINHJI JADEJA V. STATE OF GUJARAT (1995) 5 SCC 302
4) MANSUKHLAL VITHALDAS CHUHAN v. STATE OF GUJARAT (1997) 7 SCC 622
5) KANCHAN KUMAR v. STATE OF BIHAR (2022) 9 SCC 577 -5- NC: 2024:KHC:50007 CRL.P No. 2721 of 2017
6) P. MANJUNATH v. STATE BY LOKAYUKTA POLICE, Writ Petition No.10027 of 2022 decided on 16.11.2022
7) STATE OF KARNATAKA & ORS v ARJUNDAS & ORS, Writ Appeal No.2193 of 2003 (GM-KLA) and connected matters
7. In response, the learned counsel for the respondent-Lokayukta argues that the Board of Directors, after considering all the charge material, resolved to grant sanction to prosecute. Therefore, the decision of the Board to grant sanction was made with due application of mind, after satisfying itself that there is credible evidence against the petitioner to prosecute him for the alleged offences. The Chief Executive Officer and the Executive Member granted sanction to prosecute the petitioner after considering the decision of the Board, as well as the charge sheet material. Hence, the grant of sanction to prosecute is in conformity with Section 19 of the P.C. Act and does not warrant any interference.
8. He further argued that a mere irregularity, error, or omission in the process of according sanction does not affect its validity unless it has resulted in a failure of justice. Furthermore, even if the order passed by the CEO is considered to be without jurisdiction, it has not resulted in a failure of justice.
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9. In support, reliance is place on the following decisions:
1) Sri Ranganath v The State of Karnataka in Crl.R.P.No.200071/2014 dated 25.02.2015
2) Dhaneshwar narain Saxena v/s Delhi Administration -AIR 1962 SC 195 (Para-4)
3) Neeraj Dutta v. State (Govt. of NCT of Delhi) -
Crl.A.No.166/2009 dated 15.12.2022
4) Dr. H.C. Sathyan v. The State of Karnataka Crl.P.No.899/2017 dated 15.06.2017
5) Dr. H.C. Sathyan v. The State of Karnataka - Order dated 01.12.2017 in Special Leave Appeal (Criminal) No.9158/2017
6) Bachhittar Singh v. State of Punjab and Another AIR 1963 SC 395 (paras 8-10)
7) M. Balakrishna Reddy v. Director, CBI - 2008 (4) SCC 409
8) Mahadevo and Others v. Savon Devi and Others - Civil Appeal No.5876/2022 dated 30.08.2022 (paras 14, 15 &
16)
9) State of Karnataka v. T. Nanjappa - AIR 2015 SC 3060 (Paras 11, 16 &
10) State by Police Inspector v. T. Venkatesh Murthy - AIR 2004 SC 5117
11) State of M.P. v. Virendra Kumar Tripathi - (2009) 15 SCC 533 (Full Bench) (Para 6) -7- NC: 2024:KHC:50007 CRL.P No. 2721 of 2017
12) State of M.P. v. Shri Ram Singh - AIR 2000 SC 870 (Paras 9 & 10)
13) State of Bihar v. Raj Mangal Ram - AIR 2014 SC 1674
14) State of Maharashtra v. Mahesh G. Jain (2013) 8 SCC 119
15) C.S. Krishnamurthy v. State of Karnataka (2005) 4 SCC 81 (Para 9)
10. After examining the rival contentions of the parties and the documents, the sole point that arises for consideration is:
"Whether the order passed by the sanctioning authority meets the requirements of Section 19 of the P.C. Act?"
11. The proceedings of the Board of Directors of KIADB in its 320th meeting dated 7.11.2012, the following aspects were considered:
"1. The Lokayuktha police sought prosecuting Sri. Syed Iftekar Ahmed for the offence under section 7,13(1)(d) R/W 13(2) of the P.C. Act in crime No.1/2012 on the ground that the accused demanded and accepted illegal gratification to show official favour to the complainant. The trap was laid on 06/01/2012 but the record disclosed that accused and other officers had cleared the file on 10.10.2011, and recommendation was made to entrust the work to the applicant Sri.D.G.Shekar, on 29/10/2011 itself, the record also discloses that on 25/11/2011 itself Sri. Parmesh, AE, collected the file after it was signed by the CDO and CE.
2. It is pertinent to mention that the complainant has no locus standi with regard to file in question and he is not a licenced -8- NC: 2024:KHC:50007 CRL.P No. 2721 of 2017 Government Contractor, but he claimed that he was dealing on behalf of his brother D.G.Shekar who is said to be the contractor.
3. The manner in which investigation has been carried clearly goes to show that material facts have been suppressed and the records which clearly in favour of defence has been suppressed with the sole intention to prosecute the accused. This is where the role of sanctioning authority comes in to play by exercising the power vested under section 19 of P.C.Act-1988, by rejecting, sanction and safeguarding the interest of public servant Syed Iftekar Ahmed. Since no grounds at all is made out to grant sanction more so for the offence under section 7,13(1)(d) R/w 13(2) P.C.Act 1988.
4. In view of the decision of the Apex Court in Ameer Jaan's cases since no official work of the complainant is a defacto complainant, and he has absolutely no locus standi, since he is not an affected party and the sanctioning authority under the facts of the case is the best person to say that this is a fit case where the public servant concerned should receive the protection under the P.C.Act by refusing to accord sanction for the prosecution of accused.
5.The statement of the complainant instead of corroborating the allegation made in the complainant completely contradicts the contents of the complaint and creates grave suspicion about the complainants complicity and the motive for falsely implicating the public servant for no fault of his.
6.The Hon'ble Supreme Court with monotonous regularity has held that, the demand and acceptance of money for doing a official favour in discharge of official duty is sin quo non (condition precedent) and mere recovery of money is not sufficient the Hon'ble Apex Court had clearly pointed out when demand is not proved the entire prosecution case, so for has section 7 and 13(1)(d) of the P.C.Act is concerned would fall to the groud.
7.There is no explanation forth coming in the case of prosecution has to how any why? Money was paid when the official act for which it is alleged to have been paid had already been done prior to payment of money, there was no motive at all on the part of the officer Syed Iftekar Ahmed, either to demand or -9- NC: 2024:KHC:50007 CRL.P No. 2721 of 2017 accept any money since the work in question had been done to knowledge of the complainant much prior to the date of complaint.
8. There is absolutely no whisper in the air accusing the accused Syed Iftekar Ahmed of any mal-practice or wrong act with regard to file in question and there is no evidence at all with regard to any demand having been made at the time of acceptance of money. Demand being absent it cuts at the very root of the prosecution case, there by rendering the entire case of prosecution groundless.
9. What the sanctioning authority has to see with regard to peculiar fact and circumstance the case is that when the essential ingredients of demand, official favour pendency of the work of complainant, statement of the complainant is not only self contradictory it is contradicted by both oral and documentary evidence, from the material collected by the prosecution and the records would demonstratabaly reveal that this is not a fit case to accord sanction to prosecute D.O and E.E Syed Iftekar Ahmed.
10. Viewed from any angle in the absence of essential ingredients to constitute the offence and the records would point out that the accused person has been implicated falsely by the prosecution as per their own records in view of absence of official work, demand and total lack of motive on part of the accused and motive to implicate the accused by the complainant is litliarge on the face of the record, and making the case ground less, hence question of according sanction to prosecute factually and legally does not arise."
12. The Board, after considering the aforesaid aspects, resolved to grant sanction to prosecute. Subsequently, the CEO and Executive Member, following the decision of the Board of Directors and after considering the charge sheet material, concluded that the petitioner had demanded gratification. The Board, being satisfied that the
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NC: 2024:KHC:50007 CRL.P No. 2721 of 2017 petitioner had committed the aforesaid offences, granted sanction to prosecute.
13. The competent authority to remove the petitioner from service is the Board, and the CEO and Executive Member, as members of the Board, are vested with the authority to communicate the decisions of the Board. The Board observed the following:
• The accused had cleared the file on 10.10.2011, and the trap was laid on 06.01.2012. As of the date of the trap, no work was pending, and the complainant collected the file on 25.11.2011 after it was signed by the CEO and Executive Member of the Board.
• Furthermore, the complainant had no locus standi to file the complaint, as there was no official work pending in respect of his affairs on the file of the petitioner. The work allegedly pending was in relation to his brother.
• The essential ingredients of the demand--official favour in relation to the pendency of work--are conspicuously absent. The statement of the complainant, upon perusal of oral and documentary evidence, is self-contradictory. Hence, the question of granting sanction to prosecute, both factually and legally, does not arise.
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14. The Board, after recording these findings, resolved to grant sanction to prosecute, despite concluding that there was no prima facie evidence of any illegality against the petitioner. This is contrary to the well-established principles of law enunciated by the Courts regarding the grant of sanction to prosecute under Section 19 of the PC Act.
15. In the case of Mansukhlal Vithaldas Chauhan v. State of Gujarat AIR 1997 SC 3400, the Hon'ble Supreme Court had opined on the issue of grant of sanction, as hereunder:
"17. Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions. (See Mohd. Iqbal Ahmed v. State of A.P. [(1979) 4 SCC 172 : 1979 SCC (Cri) 926 : AIR 1979 SC 677] ) Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty.
18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. (See also Jaswant Singh v. State of Punjab [AIR 1958 SC 124 : 1958 SCR 762] and State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 : 1991 Cri LJ 1438)).
19. Since the validity of "sanction" depends on the applicability of mind by the sanctioning authority to the facts
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NC: 2024:KHC:50007 CRL.P No. 2721 of 2017 of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction"
was taken away and it was compelled to act mechanically to sanction the prosecution."
16. Furthermore, the Hon'ble Supreme Court in the case of Vijay Rajmohan -vs- Central Bureau of Investigation (Anti Corruption Branch) (2023) 1 SCC 329 at para 18.1 has held as follows:
"18.1. Section 197 Cr.PC provides a mandatory requirement of sanction for the prosecution of Judges, magistrates, and public servants. While interpreting this provision, this Court has identified two principles, which are that, (a) there must be relevant materials placed before the sanctioning authority before it takes a decision; and (b) the decision of the sanctioning authority must itself indicate that it had applied its mind before granting sanction. It is in this context that the judgment of this Court in Mansukhlal must be understood [Section 197 CrPC]."
17. It is needless to mention that Section 197 of the CrPC is pari materia with Section 19 of the PC Act. Therefore, when a bare perusal of the findings of the Board it can be referred that no prima facie case was made out by the Board,
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NC: 2024:KHC:50007 CRL.P No. 2721 of 2017 and yet, contrary to those findings, the Board has resolved to grant sanction under Section 19 of the PC Act, it is clearly a case of non-application of mind by the sanctioning authority. As such, the grant of sanction is per se vitiated.
18. Furthermore, the argument of the learned counsel for Lokayukta that work was pending as of the date of filing of the complaint cannot be considered, as the Board, in its wisdom, after considering all the materials in the charge sheet, has concluded that no work was pending at the time the complaint was lodged.
19. It is also pertinent to observe that the Chief Executive Officer and the Executive Member of the Board are only authorized to authenticate the decision of the Board and cannot substitute the reasons assigned by the Board in the communication of the decision to grant sanction.
20. The learned counsel for the Lokayuktha draws the attention of this Court to the decisions rendered by the coordinate Bench of this Court at Kalaburagi, in the case of Ranganath v. The State of Karnataka, Crl. RP. No. 200071/2014, dated 25.02.2015, wherein it was observed that an objection to the validity of the investigation must be raised before the chargesheet is filed or cognizance is taken. It was further observed that Courts should be cautious before concluding that investigative proceedings are vitiated, unless there is grave suspicion or proof of prejudice to the accused,
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NC: 2024:KHC:50007 CRL.P No. 2721 of 2017 which would result in the miscarriage of justice due to irregularity or illegality.
21. In the instant case, the Board has concluded that no work pertaining to the complainant was pending before the petitioner as of the date of the filing of the complaint. Furthermore, the petitioner challenges the order dated 24.01.2017 on the grounds that the sanction to prosecute was granted without the application of mind by the Board. Therefore, the case law cited above is inapplicable to the facts of this case, where material defects and incurable irregularities exist in the proceedings that led to the passing of the impugned order.
22.The learned counsel also relies on the decision of the coordinate Bench of this Court in the case of Dr. H.C. Sathyan v. State of Karnataka in Crl. P. No. 899/2017, dated 15.06.2017, where the sanction order referenced the specific allegations against the accused and the materials furnished by the investigating agency. Upon obtaining the opinion of the Lokayukta, the concerned Minister in the State Government, in consultation with the Principal Secretary and Deputy Secretary, approved the file note put up by the Desk Officer. The Court held that an overall reading of the order disclosed the application of mind to the relevant material on record and that the sanction order satisfied all legal requirements, including legality, competency, and application
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NC: 2024:KHC:50007 CRL.P No. 2721 of 2017 of mind. It was further concluded that the mere omission of some specific words would not invalidate such an order of sanction.
23. In the present case, the petitioners challenge the sanction order passed by the Board on 07.11.2012, arguing that it is unsubstantiated in light of the Board's own findings. They also contend that the order dated 18.01.2013 passed by the Chief Executive Officer, which substituted its own reasons in place of those of the Board, is improper. It is settled law that reasons must reveal a rational nexus between the materials considered and the conclusion reached by the competent authority.
24.Therefore, if the decision of the Board to grant sanction under Section 19 of the PC Act, as reflected in the order dated 07.11.2012, cannot be substantiated by the reasons contained therein, any further substitution or supplementation of the reasons by the Chief Executive Officer undermines the legality of the order. Thus, the case law cited above does not apply to the present case.
25. In conclusion, the order passed by the Chief Executive Officer, substituting the reasons of the Board in conveying the decision to grant sanction under Section 19 of the PC Act, is not merely an irregularity or curable defect, but constitutes a gross illegality. Accordingly, the order dated 07.11.2012 granting sanction to prosecute is vitiated.
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NC: 2024:KHC:50007 CRL.P No. 2721 of 2017 Consequently, the order of the learned Sessions Judge taking cognizance of the charges, and the impugned order dated 24.01.2017, dismissing the petitioner's application for discharge, are non est in law.
Accordingly, I order the following:
ORDER i. The instant petition is allowed.
ii. The impugned proceedings on the file of learned LXXVI Additional Sessions Judge in Special C.C. No. 59/2013 stand quashed.
Sd/-
(HEMANT CHANDANGOUDAR) JUDGE BKM