IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA WRIT PETITION NO.65162 OF 2016 (GM-RES) BETWEEN:
H T VASANTHA S/O THEERTHAGOWDA H M AGED ABOUT 33 YEARS PRESENTLY WORKING AS PSI AT SURYANAGAR R/O C. 722 MIG SURYANAGAR PHASE I CHANDAPURA ANEKAL TALUK-560092 ... PETITIONER (BY SRI: A.L. PREMA KUMAR, ADVOCATE) AND:
1. THE STATE OF KARNATAKA BY ITS KARNATAKA LOKAYUKTHA POLICE POLICE DIVISION TUMKUR DISTRICT TUMKUR-572101 REP BY ITS POLICE INSPECTOR 2. THE ADDITIONAL DIRECTOR OF GENERAL OF POLICE LOKAYUKTHA M.S.BUILDING AMBEDKAR VEEDI BENGALURU-560 001 3. THE INSPECTOR GENERAL OF POLICE CENTRAL RANGE MILLER ROAD BENGALURU-560052 4. T.SURESH S/O THIMMEGOWD AGED ABOUT 42 YEARS NO.98, IF NAGAR, HEGNALLI PEENYA 2ND STAGE BENGALURU-560091 (DELETED AS PER ORDER V/O/D 11.2.2019) ... RESPONDENTS (BY SRI: I.S.PRAMOD CHANDRA, SPP-II FOR R3 SRI: VENKATESH S. ARABATTI, SPL.PP FOR R1 AND R2 VIDE ORDER DATED 11.02.2019 R4 IS DELETED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 R/W SECTION 482 OF THE CODE CRIMINAL PROCEDURE PRAYING TO QUASH THE ORDER DTD.10.8.2016 PASSED BY THE R-3 VIDE ANNEX-F. QUASH ALL FURTHER PROCEEDINGS PURSUANT TO ORDER DTD.10.8.2016 IN SPL.CC.NO.306/2016 PENDING ON THE FILE OF THE II ADDL. DISTRICT JUDGE & SESSION JUDGE TUMKUR VIDE ANNEX-F.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner was working as Sub Inspector of Police at C.S.Pura Police Station, Tumakuru District. It is alleged that the petitioner demanded Rs.50,000/- for release of a vehicle which was scaled down to Rs.15,000/-. On 29.05.2010, a trap was arranged. During the trap, accused No.3 was apprehended while receiving bribe on behalf of the petitioner. Hence, a case was registered against the petitioner for the offences punishable under sections 7, 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 (“PC Act” for short). On submission of charge-sheet, learned Special Judge took cognizance of the offences and issued summons to the petitioner. At that stage, petitioner has approached this court by filing the above petition seeking to quash the proceedings against him in Spl.C.C.No.306/2016 for the above offences.
2. Heard learned counsel for the petitioner, learned counsel for the respondent Nos.1 and 2 and learned SPP-II for respondent No.3.
3. Even though large number of contentions are urged in the petition, learned counsel for the petitioner has confined his submission to the issue of sanction. By referring to the material produced in the petition, learned counsel has pointed out that at the first instance, the Investigating Officer sought sanction for the prosecution of the petitioner by producing all the relevant material collected during the investigation. On considering the said material, by order dated 02.05.2016, the Sanctioning Authority namely the Inspector General of Police, Central Range, Bengaluru refused sanction for prosecution of the petitioner. However, subsequently, the Investigating Officer made a fresh requisition before the subsequent Sanctioning Authority seeking reconsideration of the earlier order. Considering the said request and by taking into consideration the material produced in proof of the accusations levelled against the petitioner, by order dated 10.08.2016, the then Inspector General of Police namely the Sanctioning Authority granted sanction for prosecution of the petitioner for the above offences.
4. Placing reliance on the decision of this Court in Shri.L.MEGHA NAIK vs. STATE OF KARNATAKA, by its Principal Secretary to Government in ILR 2015 Karnataka 2053 which is followed by this court in Crl.P.No.7186/2018 dated 24.01.2019, learned counsel would submit that in the absence of any express power of review, it was not permissible for the Sanctioning Authority to review or reconsider the matter on the same material again. Hence, prosecution of the petitioner based on the subsequent sanction is illegal and therefore, the proceedings in question are liable to be quashed.
5. Disputing the submissions, learned counsel for the respondent however would submit that the petitioner is not entitled for any relief at the hands of this court for the reason that the petitioner has suppressed material facts relating to the controversy in question. By referring to the material on record, learned counsel has pointed out that even though the petitioner was aware of the submission of the charge-sheet before the Special Court, the petitioner at the first instance approached this court by filing a Criminal Petition No.6586/2016 suppressing the fact that charge-sheet was filed against him for the above offences. In the said petition, petitioner sought to quash the FIR even though charge-sheet was laid against him as on the date of filing Criminal Petition No.6586/2016. Further the petitioner did not disclose the pendency of this criminal petition in the instant petition. Since interim relief was not granted to the petitioner, he has preferred the instant writ petition by suppressing the filing of criminal petition for the similar relief. Therefore, solely on this ground, the petition is liable to be dismissed.
6. With regard to the merits of the case, learned counsel for the respondent would submit that the order passed by the Sanctioning Authority dated 10.08.2016 clearly reveals that the said order is passed on the basis of the additional information and clarification furnished by the Investigating Agency. Therefore, the decisions relied on by the learned counsel for the petitioner are not applicable to the facts of the case. There is no clear pleading as to the nature of the material considered by the Sanctioning Authority. Further, by virtue of section 19(3)(a) of PC Act, no finding, sentence or order passed by a Special Judge could 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. In the instant case, petitioner has not pleaded any circumstances amounting to failure of justice. Placing reliance on the observations of the Hon’ble Supreme Court in STATE OF MADHYA PRADESH vs. VIRENDRA KUMAR TRIPATHI in Crl.A.No.843/2009 learned counsel has emphasized that the stage of consideration of failure of justice would arise only at the stage of commencement of evidence. In the instant case, evidence has not commenced. Therefore there is no material for the court to determine the aspect relating to failure of justice and hence on this ground also, petition is liable to be rejected.
7. Considered the rival submissions and perused the material on record.
8. It is not in dispute that at the first instance, sanction was refused by the Sanctioning Authority vide order dated 02.05.2016 in proceedings No.DE/44/Pence/2015.OB.No. 126/2016. A perusal of the said order reveals that all the material collected during the investigation were placed for consideration of the Sanctioning Authority. Particulars of the material placed before the Sanctioning Authority is detailed in the Sanction Order. In all 270 pages of material consisting of investigation report, panchanamas and the statement of the witnesses were produced for consideration of the Sanctioning Authority and considering the said material, the then Sanctioning Authority was of the opinion that the prosecution failed to make out a case for prosecution of the petitioner for the offences under sections 7, 13(1)(d) and 13(2) of PC Act and accordingly, sanction for prosecution of the accused was refused. The subsequent order dated 10.08.2016 passed by the Sanctioning Authority reveals that the very same material was placed for consideration of the Sanctioning Authority for the second time. Even in this order, the particulars of the said materials are detailed with reference to serial number and pagination and in all 270 pages of material consisting of the very same investigation report, panchanamas and statement of witnesses were placed before the Sanctioning Authority.
9. From a reading of both the reports, it is clear that very same materials were placed before the Sanctioning Authority on two occasions. At the first instance, Sanctioning Authority was of the opinion that the said material was not sufficient to make out a case for prosecution of the petitioner whereas in the second Sanction Order, the Sanctioning Authority has reviewed its own order and taken a contrary view and accorded sanction for prosecution of the petitioner.
10. Though learned counsel for the respondent has contended that under reference No.5, additional material was placed for consideration of the Sanctioning Authority, yet on going through the said reference No.5, it is seen that the same relates to the requisition made by Investigating Agency and is not an additional material which has gone into the process of decision making by the Sanctioning Authority. Therefore, from the above orders, it is clear that sanction is accorded for prosecution of petitioner based on the very same material which was considered and negatived by the Sanctioning Authority at the first instance. In similar circumstances, the Hon’ble Supreme Court in STATE OF HIMACHAL PRADESH vs. NISHANT SAREEN (2010) 14 SCC 527 has held that in the absence of express power of review, it is not permissible for the Sanctioning Authority to review or reconsider the matter on the same materials again. The said ratio squarely applies to the facts of this case. Therefore, in the light of the above factual situation and in the light of the law laid down by the Hon’ble Supreme Court, it has to be held that the sanction accorded by the Inspector General of Police – respondent No.3 for prosecution of the petitioner for the offences punishable under sections 7, 13(1)(d) and 13(2) of PC Act is invalid and without authority of law and therefore, cannot be sustained. Consequently the trial court is denuded of jurisdiction to proceed with the trial.
For the above reasons, the petition is allowed. The proceedings pending against the petitioner in Special C.C.No.306/2016 on the file of the II Additional District & Sessions Judge, Tumakuru for the offences under sections 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 is quashed for defective sanction. Liberty is reserved to respondent Nos.1 and 2 to challenge the order dated 02.05.2016 refusing sanction for prosecution of the petitioner and thereafter proceed in accordance with law.
Bss Sd/- JUDGE