1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH R DATED THIS THE20H DAY OF DECEMBER, 2023 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.102152 OF2022(S – RES) BETWEEN: SRI MALLAYYA KORAVANAVAR S/O CHANNABASAPPA AGED ABOUT47YEARS ASSISTANT DIRECTOR OF AGRICULTURE (M AND E) OFFICE OF JOINT DIRECTOR OF AGRICULTURE GADAG – 582 101. ... PETITIONER (BY SRI NITIN RAMESH, ADVOCATE AND SRI LINGESH V.KATTEMANE., ADVOCATE) (VIDEO CONFERENCING) AND:
1. . STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY DEPARTMENT OF AGRICULTURE4H FLOOR, M.S.BUILDING BENGALURU – 560 001. 2 . THE COMMISSIONER OF AGRICULTURE SESHADRI ROAD BENGALURU – 560 001. 3 . KARNATAKA LOKAYUKTA2REPRESENTED BY ITS REGISTRAR M.S.BUILDING BENGALURU – 560 001. ... RESPONDENTS (BY SRI A.T.KATTIMANI, GOVERNMENT ADVOCATE FOR R1 & R2; SRI ANIL KALE, SPL.PP FOR R3) (VIDEO CONFERENCING) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
ORDEROR DIRECTION IN THE NATURE OF CERTIORARI OR SUCH WRIT OR
ORDERTO QUASH THE DEPT.
ORDERNo.EST- 1/ENQUIRIES -3 /31/2021-22 DATED55/2022 PASSED BY THE2D RESPONDENT PRODUCED AT ANNEXURE-C. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON1711.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDERThe petitioner is before this Court calling in question a Government Order dated 09-09-2014 entrusting the inquiry to the 3rd respondent/Lokayukta; order dated 05-05-2022 passed by the 2nd respondent according sanction for his prosecution and has sought for consequential benefits.
2. Heard Sri Nitin Ramesh, learned counsel appearing for the petitioner, Sri A.T. Kattimani, learned Government Advocate 3 appearing for respondents 1 and 2 and Sri Anil Kale, learned Special Public Prosecutor appearing for respondent No.3.
3. Facts, in brief, are as follows:- The petitioner is appointed as an Agriculture Officer in the services of the State Government with effect from 26-10-2002 and posted as Agriculture Officer at Gadag District. When the petitioner continued to work as Agriculture Officer and later as Assistant Director of Agriculture, Gadag certain complaints arose with regard to several lapses in implementation of Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (hereinafter referred to as ‘the Act’ for short) and a Scheme notified there under. The complaints arose on account of the report of Comptroller and Auditor General of India. The complaints resulted in entrusting the matter against several officers to the Lokayukta for conduct of inquiry and investigation with regard to faulty implementation of the Scheme in the State of Karnataka between 2007 and 2014 in terms of a Government order dated 09-09-2014. The allegations were irregularities in bills and wrongful disbursal of payments to people who have never worked. 4
4. The petitioner being the Agriculture Officer was one of the persons against whom allegations were made. The investigation goes on for a period of seven to eight years and when the investigation was complete, the Investigating Agency seeks sanction from the hands of the Competent Authority to prosecute the petitioner. The sanction was accorded on 05-05-2022. It is then the charge sheet is filed before the concerned Court for offences punishable under Section 13(1)(c)(d)(i)(ii)(iii) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (‘the PC Act’ for short), Sections 464, 465, 471, 420, 109, 120-B r/w 34 of the IPC and Section 25 of the Act. It is the claim of the petitioner that it is only when the sanction order came about, he comes to know of the FIR being registered against him and was not questioned during the time of investigation. Based on the said ground and on the ground of delay in according sanction, the petitioner knocks at the doors of this Court in the subject petition.
5. This Court, accepting and entertaining the delay, granted an interim order of stay of further proceedings against the petitioner. During the pendency of these proceedings comes about 5 a Government order dated 28-03-2023. The said Government order withdraws the earlier Government order dated 09-09-2014. It is then, the matter is moved for its disposal on the score that the Government order which withdrew the earlier Government order granting permission even to investigate takes away entire gamut of offences against the petitioner.
6. Sri Nitin Ramesh, learned counsel representing the petitioner would contend that by a Government order dated 09-09-2014 permission was granted to investigate and also initiate departmental inquiry against all the guilty. Pursuant to the Government order several proceedings take place and sanction is also accorded for prosecution on 05-05-2022. He would submit that the subsequent Government order dated 28-03-2023 clearly takes away the effect of Government order dated 09-09-2014. Therefore, the very power that was conferred upon the Lokayukta to initiate departmental inquiry or prosecute is effaced lock stock barrel. He would submit that the petition be allowed and all proceedings be quashed in terms of the Government order. In the event that would not become acceptable to quash the proceedings 6 in its entirety, the learned counsel would submit that sanction is accorded by an incompetent Authority. He would place reliance upon sub-section (2) of Section 19 of the PC Act to contend that only the Authority competent to remove Government servant from service is empowered to grant sanction. He would submit that even on this ground the entire proceedings are vitiated.
7. Per-contra, the learned counsel representing the Lokayukta Sri Anil Kale would put up strenuous and vehement defence to the action of granting sanction and the proceedings taken to its logical conclusion, as in terms of the Government order dated 28-03-2023, according to the learned counsel, it would be retractable only to cases where investigation is pending and not to cases where investigation is concluded and charge sheet is filed. He would submit that sanction is accorded by the competent Authority and this plea, if available, can be raised before the concerned Court at the time when the trial takes place. This Court, exercising its jurisdiction under Article 226 of the Constitution of India, would not interfere with the proceedings, as the allegation of corruption is of a 7 mountainous proportion against several accused and the petitioner is also one among them.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
9. The afore-narrated facts are not in dispute. The petitioner gets embroiled in certain proceedings in the capacity of him being the Agriculture Officer or as Assistant Director of Agriculture. The proceedings are generated on account of a report from the Comptroller and Auditor General of India who had published a report with regard to several lapses in implementation of the Scheme under the Act in several Districts including Gadag District. Gadag District was where the petitioner was one of those allegedly responsible for irregularities in preparation of bills and disbursement of funds. The allegation involves several crores of rupees. The period of faulty implementation is between 2007 and 2014. Based on the said report, a Government order comes to be 8 issued on 09-09-2014 entrusting the matter to the Lokayukta. The Government dated 09-09-2014 reads as follows: “¸ÀPÁðgÀzÀ DzÉñÀ ¸ÀASÉå UÁæC¥À 111 GSÁAiÉÆà 2013 ¨ÉAUÀ¼ÀÆgÀÄ ¢£ÁAPÀ:09- 09-2014 ¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è «ªÀj¹zÀAvÉ, ªÀĺÁvÀä UÁA¢ü gÁ¶ÖçÃAiÀÄ UÁæ«ÄÃt GzÉÆåÃUÀ SÁvÀj – AiÉÆÃd£É PÀ£ÁðlPÀzÀ C£ÀĵÁ×£ÀzÀ §UÉÎ K¦æ¯ï 2007 jAzÀ ªÀiÁZïð 2012gÀ CªÀ¢üAiÀĪÀgÉUÉ C & AG), ¨sÁgÀvÀzÀ ¯ÉPÀÌ ¤AiÀÄAvÀæPÀgÀÄ ªÀÄvÀÄÛ ªÀĺÁ ¯ÉPÀÌ¥Àj±ÉÆÃzÀsPÀgÀÄ ( EªÀgÀÄ §¼Áîj, ©eÁ¥ÀÄgÀ, ZÁªÀÄgÁd£ÀUÀgÀ, aPÀ̧¼Áî¥ÀÄgÀ, UÀzÀUÀ, ºÁ¸À£À, gÁAiÀÄZÀÆgÀÄ ªÀÄvÀÄÛ ²ªÀªÉÆUÀÎ, F JAlÄ f¯ÉèUÀ¼À°è £ÀqɸÀ¯ÁzÀ PÁAiÀÄ𠤪ÀðºÀuÉAiÀÄ ¯ÉPÀÌ ¥Àj±ÉÆÃzsÀ£ÉAiÀÄ 2013£Éà ªÀµÀðzÀ – ªÀgÀ¢ ¸ÀASÉå 7 gÀ°è ¥ÀvÉÛ ªÀiÁqÀ¯ÁVgÀĪÀ ¯ÉÆÃ¥ÀzÉÆõÀUÀ¼À®èzÉà gÁdåzÀ EvÀgÉ G½zÀ f¯ÉèUÀ¼À®Æè ¸ÀA¨sÀ«¹gÀ§ºÀÄzÁzÀ CªÀåªÀºÁgÀ/¯ÉÆÃ¥ÀzÉÆõÀUÀ¼À£ÀÄß F PɼÀUÉ MzÀV¸ÀĪÀ DPÀgÀ ¸ÀÆaUÀ¼À DzsÁgÀzÀ ªÉÄÃ¯É vÀ¤SÉ ªÀiÁr ¸ÀPÁðgÀPÉÌ ªÀgÀ¢ ¸À°è¸À®Ä ¥ÀæPÀgÀtªÀ£ÀÄß PÀ£ÁðlPÀ A) ¯ÉÆÃPÁAiÀÄÄPÀÛ C¢ü¤AiÀĪÀ, 1984gÀ PÀ®A7(2 gÀ£ÀéAiÀÄ PÀ£ÁðlPÀ ¯ÉÆÃPÁAiÀÄÄPÀÛ ¨ÉAUÀ¼ÆÀ gÄÀ EªÀjUÉ ªÀ»¹zÉ. C & AG), 1. ¨sÁgÀvÀzÀ ¯ÉPÀÌ ¤AiÀÄAvÀæPÀgÀÄ ªÀÄvÀÄÛ ªÀĺÁ ¯ÉPÀÌ¥Àj±ÉÆÃzsÀPÀgÀÄ ( gÀªÀgÀ PÁAiÀið¤ªÀðºÀuÁ ªÀgÀ¢AiÀÄ°è PÀAqÀħA¢gÀĪÀAvÉ PÉ®¸ÀUÀ¼À£ÀÄß ¤ªÀð»¸ÀzÉÃ, AiÀiÁªÀÅzÉà ¸ÁªÀÄVæUÀ¼À£ÀÄß ¥ÀÆgÉÊPÉ ªÀiÁqÀzÉà PÉ®ªÉÇAzÀÄ D¸ÀPÀÛ ªÀUÀðUÀ¼ÀÄ ¸Á«gÁgÀÄ PÉÆÃn gÀÆ¥Á¬ÄUÀ¼À SÉÆnÖ ©®èUÀ¼À£ÀÄß ¸ÀȶֹgÀĪÀ §UÉÎ ºÁUÀÆ ¸ÀA§A¢ü¹zÀAvÉ ¨ÁQ G½¢gÀĪÀ ©¯ïUÀ¼À°è £ÉÊd ©®ÄèUÀ¼ÉµÀÄÖ ªÀÄvÀÄÛ SÉÆnÖ ©®ÄèUÀ¼ÉµÀÄÖ?. SÉÆnÖ ©®ÄèUÀ½UÉ dªÁ¨ÁÝgÀgÀÄ AiÀiÁgÀÄ?.
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(Emphasis added)The Government in terms of the afore-quoted order directed the Lokayukta to conduct inquiry and submit a report in terms of Section 7(2A) of the Lokayukta Act, 1984. The reason for directing an enquiry to be conducted is in the preamble. The preamble is that the C & A G of India had raised certain objections with regard to payment of bills under the scheme. The allegation was misappropriation of hundreds of crores by producing fake bills without actually those persons working under the scheme. It is therefore, the aforesaid order was passed. The points of reference were six. The crux of reference was to unearth the truth as to who was responsible for irregular drawing up of bills and faulty disbursement of payments. The allegation was that several crores 10 of rupees have been paid on bills which have been forged or falsely generated. The first reference assumes complete significance as to why inquiry was necessary. The investigation is conducted which leads to filing of final report before the concerned Court.
10. Since the petitioner was a Government servant, sanction in terms of Section 19 of the PC Act was imperative and, therefore, a requisition for sanction was sent to the hands of the competent Authority. Sanction is accorded by an order dated 05-05-2022. Sanction is accorded by the Commissioner of Agriculture, terming himself to be the Competent Authority in the Department of Agriculture. The moment sanction is accorded, the petitioner has knocked at the doors of this Court contending that sanction is not accorded by the competent authority. Therefore, I deem it appropriate to consider the veracity of grant of sanction as is contended by the petitioner. Section 19 of the PC Act reads as follows: “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 11 have been committed by a public servant, except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014) — (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. [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 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 12 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 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),— 13 (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.” (Emphasis supplied) 14 Sub-section (2) of Section 19 mandates that sanction shall be given by that Government or authority which would have been competent to remove the Government servant from his office at the time when the offence was alleged to have been committed. Therefore, sub- section (2) of section 19 of the PC Act mandates that it is the competent authority alone who can accord sanction. Section 19 also mandates that no Court shall take cognizance of offence punishable under Sections 7, 10, 11, 13 and 15 unless sanction is accorded by the competent authority which is empowered to remove from office. Therefore, in terms of Section 19(1)(b) of the Act sanction has to be accorded by the State Government.
11. The petitioner is a servant of the government. The appointing authority to the petitioner is the government and the authority competent to remove the petitioner from service is the State Government. It is trite that for the officers of the Central Government or the State Government as the case would be, it is the only the authority who is competent to remove the government servant from service, is the authority who is empowered to grant 15 sanction for prosecution under Section 19 of the Act. If it were to be an employee of any public enterprise, it would have been the authority to whom the power is delegated that is not the issue in the case at hand. Admitted fact is that, the petitioner is a government servant. Therefore, the State Government ought to have accorded sanction, while the sanction is accorded by the Commissioner in the Department of Agriculture, it therefore, runs foul of Section 19 of the Act itself. The file regarding sanction ought to have been placed before the State Government and the State Government in terms of the Transaction of Business Rules had to accord sanction. The file is not even placed before the government. Therefore, the very prosecution gets cut at its root and any further continuance would vitiate the entire process.
12. Insofar as the contention that sanction is not obtained can be urged at any point in time in a proceeding, as urged by the learned counsel appearing for the respondents, is again unacceptable, in the light of the judgment rendered by the Apex 16 Court in the case of NANJAPPA v. STATE OF KARNATAKA1 wherein the Apex Court has held as follows: “…. …. ….
21. In B. Saha v. M.S. Kochar [(1979) 4 SCC177:
1979. SCC (Cri) 939]. this Court was dealing with the need for a sanction under Section 197 CrPC and the stage at which the question regarding its validity could be raised. This Court held that the question of validity of an order of sanction under Section 197 CrPC could be raised and considered at any stage of proceedings. Reference may also be made to the decision of this Court in K. Kalimuthu v. State [(2005) 4 SCC512:
2005. SCC (Cri) 1291]. where Pasayat, J.
speaking for the Court, held that the question touching the need for a valid sanction under Section 197 CrPC need not be raised as soon as the complaint is lodged but can be agitated at any stage of the proceedings. The following observation in this connection is apposite: (SCC p. 521, para
15) “15. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. Further, in cases where offences under the Act are concerned, the effect of Section 197, dealing with question of prejudice has also to be noted.
22. The legal position regarding the importance of sanction under Section 19 of the Prevention of Corruption Act is thus much too clear to admit equivocation. The statute forbids taking of cognizance by the court against a public servant except with the previous sanction of an authority competent to grant 1 (2015) 14 SCC18617 such sanction in terms of clauses (a), (b) and (c) to Section 19(1). The question regarding validity of such sanction can be raised at any stage of the proceedings. The competence of the court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid the court can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with law. If the trial court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution. …. …. ….
24. In the case at hand, the Special Court not only entertained the contention urged on behalf of the accused about the invalidity of the order of sanction but found that the authority issuing the said order was incompetent to grant sanction. The trial court held that the authority who had issued the sanction was not competent to do so, a fact which has not been disputed before the High Court or before us. The only error which the trial court, in our opinion, committed was that, having held the sanction to be invalid, it should have discharged the accused rather than recording an order of acquittal on the merit of the case. As observed by this Court in Baij Nath Prasad Tripathi case [Baij Nath Prasad Tripathi v. State of Bhopal, AIR1957SC494:
1957. Cri LJ597 , the absence of a sanction order implied that the court was not competent to take cognizance or try the accused. Resultantly, the trial by an incompetent court was bound to be invalid and non est in law. (Emphasis supplied) 18 13. The Apex Court in an another case in STATE OF MIZORAM v. C.SANGNGHINA2 has held as follows: “…. …. ….
12. In Nanjappa case [Nanjappa v. State of Karnataka, (2015) 14 SCC186: (2016) 2 SCC (Cri) 360]. , after referring to a number of judgments, this Court summarised the principles in para 23 as under : (SCC pp. 199-200) “23. Having said that there are two aspects which we must immediately advert to. The first relates to the effect of sub-section (3) to Section 19, which starts with a non obstante clause. Also relevant to the same aspect would be Section 465 CrPC which we have extracted earlier. *** 23.2. A careful reading of sub-section (3) to Section 19 would show that the same interdicts reversal or alteration of any finding, sentence or order passed by a Special Judge, on the ground that the sanction order suffers from an error, omission or irregularity, unless of course the court before whom such finding, sentence or order is challenged in appeal or revision is of the opinion that a failure of justice has occurred by reason of such error, omission or irregularity. Sub-section (3), in other words, simply forbids interference with an order passed by the Special Judge in appeal, confirmation or revisional proceedings on the ground that the sanction is bad save and except, in cases where the appellate or revisional court finds that failure of justice has occurred by such invalidity. What is noteworthy is that sub-section (3) has no application to proceedings before the Special Judge, who is free to pass an order discharging the accused, if he is of the opinion that a valid order 2 (2019) 13 SCC33519 sanctioning prosecution of the accused had not been produced as required under Section 19(1). 23.3. Sub-section (3), in our opinion, postulates a prohibition against a higher court reversing an order passed by the Special Judge on the ground of any defect, omission or irregularity in the order of sanction. It does not forbid a Special Judge from passing an order at whatever stage of the proceedings holding that the prosecution is not maintainable for want of a valid order sanctioning the same. 23.4. The language employed in sub-section (3) is, in our opinion, clear and unambiguous. This is, in our opinion, sufficiently evident even from the language employed in sub-section (4) according to which the appellate or the revisional court shall, while examining whether the error, omission or irregularity in the sanction had occasioned in any failure of justice, have regard to the fact whether the objection could and should have been raised at an early stage. Suffice it to say, that a conjoint reading of Sections 19(3) and (4) leaves no manner of doubt that the said provisions envisage a challenge to the validity of the order of sanction or the validity of the proceedings including finding, sentence or order passed by the Special Judge in appeal or revision before a higher court and not before the Special Judge trying the accused. 23.5. The rationale underlying the provision obviously is that if the trial has proceeded to conclusion and resulted in a finding or sentence, the same should not be lightly interfered with by the appellate or the revisional court simply because there was some omission, error or irregularity in the order sanctioning the prosecution under Section 19(1). Failure of justice is, what the appellate or revisional court would in such cases look for. And while examining whether any such failure had indeed taken place, the court concerned would also keep in mind whether the objection touching the error, omission or irregularity in the sanction could or should have been raised at an earlier stage of the proceedings meaning 20 thereby whether the same could and should have been raised at the trial stage instead of being urged in appeal or revision.
13. In light of the above principles, considering the case in hand, even before commencement of trial, the respondent- accused was discharged due to lack of proper sanction, there was no impediment for filing the fresh/supplementary charge- sheet after obtaining valid sanction. Unless there is failure of justice on account of error, omission or irregularity in grant of sanction for prosecution, the proceedings under the Act could not be vitiated. By filing fresh charge-sheet, no prejudice is caused to the respondent nor would it result in failure of justice to be barred under the principles of “double jeopardy”. …. …. ….
15. The whole basis of Section 300(1) CrPC is that the person who was tried by a competent court, once acquitted or convicted, cannot be tried for the same offence. As discussed earlier, in the case in hand, the respondent-accused has not been tried nor was there a full-fledged trial. On the other hand, the order of discharge dated 12-9-2013 passed by the Special Court was only due to invalidity attached to the prosecution. When the respondent-accused was so discharged due to lack of proper sanction, the principles of “double jeopardy” will not apply. There was no bar for filing fresh/supplementary charge- sheet after obtaining a valid sanction for prosecution. The Special Court once it found that there was no valid sanction, it should have directed the prosecution to do the needful. The Special Court has not given sufficient opportunities to produce valid prosecution sanction from the competent authority. The Special Court erred in refusing to take cognizance of the case even after production of valid prosecution sanction obtained from the competent authority and the High Court was not right in affirming the order of the Special Court. The Special Court and the High Court were not right in holding that the filing of the fresh charge-sheet with proper sanction order for prosecution was barred under the principles of “double jeopardy”. (Emphasis supplied) 21 The afore-quoted judgment followed the judgment in the case of NANJAPPA (supra) to hold that charge cannot be filed without obtaining a valid sanction.
14. In the light of the aforesaid judgments of the Apex Court with regard to competent authority according sanction, the ground of want of sanction by the competent authority as urged by the petitioner deserves to the accepted and held in favour of the petitioner. Since the sanction goes to the root of the matter being contrary to Section 19, the proceedings taken up in the aftermath without a valid sanction are vitiated.
15. Therefore, if the Government is the competent authority to remove the petitioner from service, sanction could not have been accorded by the 2nd respondent styling himself as the competent authority. The 2nd respondent could be the authority to direct conduct of disciplinary proceedings or draw up a charge sheet against the Government servant for conduct of disciplinary proceedings. He is not the authority competent to remove the petitioner from his office. Therefore, under sub-section (2) of 22 Section 19 of the PC Act, the Government alone is the competent authority to grant sanction to prosecute the petitioner, apart from the fact that sanction is accorded after about 8 years from the date of conduct of investigation. The issue of sanction thus cuts at the root of the matter.
16. The other submission is on the strength of Government order issued on the aftermath of filing of the present petition i.e., Government order dated 28-03-2023 which reads as follows: ¸ÀPÁðgÀzÀ DzÉñÀ ¸ÀASÉå:Dgïr¹-EfJ¸ï/171/2021, ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ:28-03-2023. ¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è «ªÀj¹zÀ CA±ÀUÀ¼À »£À߯ÉAiÀÄ°è ªÀĺÁvÀäUÁA¢ü gÁ¶ÖçÃAiÀÄ UÁæ«ÄÃt – GzÉÆåÃUÀ SÁwæ AiÉÆÃd£É PÀ£ÁðlPÀ K¦æ¯ï 2007 jAzÀ ªÀiÁZïð 2012gÀ CªÀ¢üAiÀĪÀgÉV£À PÁAiÀÄð¤ªÀðºÀuÉAiÀÄ §UÉÎ ¨sÁgÀvÀzÀ ¯ÉPÀÌ ¤AiÀÄAvÀæPÀgÀÄ ªÀÄvÀÄÛ ªÀĺÁ ¯ÉPÀÌ ¥Àj±ÉÆÃzsÀPÀgÀ 2013£Éà – ªÀµÀðzÀ ªÀgÀ¢ ¸ÀASÉå 7gÀ°è PÀAqÀÄ §A¢gÀĪÀ CªÀåªÀºÁgÀUÀ¼À PÀÄjvÀÄ vÀ¤SÉ £Àqɹ ªÀgÀ¢ ¤ÃqÀ®Ä PÀ£ÁðlPÀ ¯ÉÆÃPÁAiÀÄÄPÀÛjUÉ ªÀ»¹gÀĪÀ DzÉñÀ ¸ÀASÉå: UÁæC¥À 111 GSÁAiÉÆà 2013 ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ:09.09.2014 gÀ£ÀÄß vÀPÀët¢AzÀ eÁjUÉ §gÀĪÀAvÉ DzÉñÀªÀ£ÀÄß ¸ÀPÁðgÀªÀÅ »AzÀPÉÌ ¥ÀqÉ¢gÀÄvÀÛzÉ. CzÀgÀAvÉ, ¸ÀzÀj DzÉñÀzÀ£ÀéAiÀÄ ¯ÉÆÃPÁAiÀÄÄPÀæ PÀbÉÃjAiÀÄÄ ºÀÆrzÀ / zÁR°¹gÀĪÀ J®è ¥ÀæPÀgÀtUÀ¼À£ÀÄß vÀ¤SɬÄAzÀ »A¥ÀqÉAiÀÄĪÀAvÉ DzÉò¹zÉ.”
(Emphasis added)This Government order withdraws the earlier Government order issued on 09-09-2014. The earlier Government order had several references. After those references for conduct of investigation the 23 Lokayukta had completed the investigation and sought sanction from the hands of the authority. Whether competent or otherwise is what is discussed hereinabove. Nonetheless the charge sheet is filed before the concerned Court. The Government order is clear that in terms of the earlier Government order dated 09-09-2014 all cases which are pending at the stage of investigation are withdrawn.
17. The learned counsel for the 3rd respondent/Lokayukta has produced the note sheet maintained with regard to cases in Districts where charge sheets are filed and investigations are pending. They read as follows: Sl. Police Station Crime No.Remarks No.1 Raichur Lokayukta 6/2014 Police have filed Police Station Charge sheet in Spl.CC No.132/2017. 2 Shivamogga 11/2014 In this case Police Lokayukta Police have filed ‘B’ final Station report and the same is accepted by the Trial court on 14/7/2021 3 Chamarajanagar 9/2014 Police have filed Lokayukta Police Charge sheet in Station Spl.CC No.174/2022 24 4 Vijayapura 9/2014 Police have filed Lokayukta Police Charge sheet in Station Spl.CC No.5/2019 5 Hosapete 7/2014 Police have filed (Ballari) Charge sheet in Lokayukta Police Spl.CC No.5003/2018 Station 6 Gadag Lokayukta 6/2014 Police have made a Police Station request with the Disciplinary Authority to accord prosecution sanction order to submit charge sheet against the erring officials. The same is pending. 7 Hassan 22/2014 In this case Police Lokayukta Police have filed ‘B’ final Station report and the same is accepted by the Trial court on 15/7/2022 8 Chikkaballapur 13/2014 The matter is under Lokayukta Police investigation. Station 81. Apart from the above, after conducting investigation under the provisions of the Karnataka Lokayukta Act, 1984, certain reports have been submitted to the Government for initiating disciplinary action against the erring public servants. In some cases, the Government has entrusted the departmental inquiry to this institution, which are under progress. The details of such reports sent to the Government and the present status of such reports are as follows:- 25 Sl. District Date of Report Remarks/Status of No.sent to Report Government 1 Raichur No.Compt/LOK/BCD The Govt. by order No,.RDP /3084/2014/ARLO-3 28ENQ2019dated dated 1/4/2019 13/5/2019 entrusted inquiry against Sri Sanjeevkumar AE, Panchayath Raj Engineering Department Devadurga and the enquiry in No.LOK/DE/153/2019 is in progress. The Govt. by order No.RDP266GPK2019dated 28/12/2021 entrusted inquiry against Sri Mallappa, Panchayath Development Officer, Ganadala GP to this institution and the inquiry against him is pending in No.UPLOK-2/DE/2/20222. 2 Koppal No.Compt/LOK/BCD The Government by order /3084/2014/ARLO No.RDP120GPK2021dated – 3 Dated 3/9/2021 entrusted inquiry 16/4/2021 against 5 officials and inquiry against them is pending vide No,.LOK/DE/170/2021 in this institution. 3 Bagalkot No.Compt/LOK/BCD Report sent stating that no /3084/2014/ARE- irregularities or illegalities or 19 dated misappropriation of funds 12/12/2022 noticed during the investigation of Sunaga Keluru, & Shoorpali Grama Panchayaths. 4 Bidar No.Compt/LOK/BCD Report sent stating that no /3084/2014/ARE- irregularities or illegalities or 19 dated 5/1/2023 misappropriation of funds 26 noticed during the investigation of Ladha and Auradh Grama Panchayaths. 5 Dakshina No.Compt/LOK/BCD Report sent stating that no Kannada /3084/2014/ARE- irregularities or illegalities or 19 dated misappropriation of funds 16/2/2023 noticed during the investigation of Jokatte, Permude, Ekkuru, Marodi, Belalu, Nada, Mennabettu, Kinnigoli,Malavur, Kemral, Bajpe,Paduperar,Koyyuru, Mittabagilu,Aikala,Surinje, Ulaibettu Grama Panchayaths. 6 Shivamo- No.LOK/BCD/3084/ Report sent to the gga 2014/ARLO-3 dated Government for initiating 2/11/2023 disciplinary proceedings against certain PDOs and Secretary Grade – II. The same is pending consideration by the Government. 7 Chamara- No.LOK/BCD/3084/ Report sent to the ja Nagar 2014/ARLO-3 dated Government for initiating 28/2/2023 appropriate proceedings against certain Ex- presidents of Grama Panchayaths, Junior Engineer and Administrative officer. The same is pending consideration by the Government. 8 Hosapete No.LOK/BCD/3084/ Report sent to the 2014/ARLO-3 dated Government for initiating 28/7/2021 disciplinary proceedings against erring officials. The same is pending 27 consideration by the Government. 9 Bengalu- No.Compt/LOK/BCD Report sent stating that no ru North /3084/2014/ARE- irregularities or illegalities or and 19 dated misappropriation of funds South 12/12/2023 noticed during the Taluks investigation of Doddajala, Sulikeri, H.Gollahalli, Taralu, Kittanahalli Grama Panchayaths. 10 Udupi No.Compt/LOK/BCD Report sent stating that no /3084/2014/ARE- irregularities or illegalities or 19 dated misappropriation of funds 12/12/2023 noticed during the investigation of 52 Grama panchayaths in Udupi District. 11 Bengalu- No.Compt/LOK/BCD Report sent to Government ru Rural /3084/2014/ARLO- for initiating disciplinary 3 dated 15/5/2020 proceedings against Sri K.S.Chandrashekhar, Panchayath Development Officer of Venkatagiri Kote Grama Panchayath, Devanahalli Taluk. The same is pending consideration by the Govt.” In few of the Districts charge sheets are filed and in few cases ‘B’ reports are filed. In the cases of Gadag District, as observed hereinabove, sanction is accorded and in few of the Districts investigation is still pending. In the light of what is indicated hereinabove, it is not that the Lokayukta slews have kept quiet for 28 the last 8 years. In certain cases investigation is still pending and in certain cases charge sheets are filed and trial is on. In cases where trial is on, as observed in the Government order, the proceedings cannot be annulled. It is only in cases where investigation is underway the benefit of the Government would enure to the accused. Therefore, the effect of the Government order, in the considered view of this Court is that, it does not take away every proceeding lock stock and barrel. It, at best, would take away the investigations pending in cases.
18. The issue involved is with regard to several hundreds of crores being misappropriated by public servants in implementation of the Scheme. Fake bills are generated, persons who have never worked have been granted money. What is granted is not the money belonging to the officers, it is public money. Therefore, in cases where trial is on, the trial cannot be disturbed. In cases where investigation is still pending in terms of the Government order, they would cease forthwith. Any other interpretation would be putting a premium on the case of the State, which at one breath projects hundreds of crores to be the misappropriated amount and 29 therefore, investigation would be required against public servants and in the other breath, the orders that are passed earlier for conduct of investigation are blissfully withdrawn. When public money and loot of such public money forms the fulcrum of the allegation, the Government which is the conscious keeper of the people should not indulge in acts of change of breath with the change in Government. If on an allegation based upon certain decision sanction is accorded for prosecution, it cannot be said that change in Government would change the decision, as the allegation remains the same. Therefore, the submission of the learned counsel for the petitioner that the Government order has effaced the entirety of the Government order dated 09-09-2014 is, on the face of it, unacceptable. But, the issue of sanction being accorded by incompetent authority merits acceptance, not for complete obliteration of the crime, but only as a temporary reprieve to the petitioner. The State has to accord sanction bearing in mind the observations made in the course of the order, if it chooses to do so, within two months. 30
19. For the aforesaid reasons, I pass the following:
ORDER(i) Writ Petition is allowed in part. (ii) Order dated 05-05-2022 which accords sanction for prosecution of the petitioner stands obliterated. (iii) The Competent Authority/State Government is reserved liberty to accord sanction for such prosecution bearing in mind the observations made in the course of this order and the time frame mentioned therein. Sd/- JUDGE bkp CT:MJ