IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION NO.245/2019 C/W CRIMINAL REVISION PETITION NO.356/2019 CRIMINAL REVISION PETITION NO.279/2019 IN CRIMINAL REVISION PETITION NO.245/2019: BETWEEN:
Sri B.P. Naveen S/o late Puttaswamy Gowda Aged about 40 years Occupation: Contractor R/at No.2351/A, 2nd Cross 2nd Stage, No.34, Vijayanagar, Bengaluru-560 040. …Petitioner (By Sri P Prasanna Kumar, Advocate for Smt Rashmi Jadhav, Advocate) AND:
The State of Karnataka by Lokayukta Police City Division, Bengaluru, Represented by its Special Public Prosecutor Karnataka High Court Building Bengaluru-560 001. …Respondent (By Sri B.S.Prasad, Special Public Prosecutor) This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the order dated 13.06.2018, passed by the LXXVI Additional City Civil and Sessions Judge and Special Judge, Mayo Hall Unit, Bengaluru in Spl.C.No.334/2010.
IN CRIMINAL REVISION PETITION NO.356/2019: BETWEEN:
Mr. B.P.Manje Gowda S/o late Puttaswamy Gowda Aged about 56 years Occ: Former Senior Motor Vehicle Inspector Regional Transport Office, Vijayapura, Residing at No.2351/A, 2nd Main 2nd Stage, No.34, Vijayanagar, Bengaluru-560 040. …Petitioner (By Sri P Prasanna Kumar, Advocate for Smt. Rashmi Jadhav, Advocate) AND:
The State of Karnataka by Lokayukta Police City Division, Bengaluru, Represented by its Special Public Prosecutor High Court of Karnataka Bengaluru-560 001. …Respondent (By Sri B S Prasad, Special Public Prosecutor) This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the impugned order dated 20.08.2018, passed by the learned LXXVI Additional City Civil and Sessions Judge and Special Judge, Bengaluru City in Spl.C.No.334/2010, thereby rejecting the application filed by the petitioner seeking discharge of the offence punishable under Section 13(1) (e) r/w Section 13(2) of Prevention of Corruption Act, 1988.
IN CRIMINAL REVISION PETITION NO.279/2019: BETWEEN:
Smt M.B.Rukmini W/o B.P.Manjegowda Aged about 54 years Occupation: Business R/at No.2351/A, 2nd Cross 2nd Stage, No.34, Vijayanagar, Bengaluru-560 040. …Petitioner (By Sri P Prasanna Kumar, Advocate for Smt Rashmi Jadhav, Advocate) AND:
The State of Karnataka by Lokayukta Police City Division, Bengaluru, Represented by its Special Public Prosecutor High Court of Karnataka Bengaluru-560 001. …Respondent (By Sri B.S.Prasad, Special Public Prosecutor) This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the order dated 13.06.2018, passed by the LXXVI Additional City Civil and Sessions Judge and Special Judge, Mayo Hall Unit, Bengaluru in Spl.C.No.334/2010, thereby rejecting the application filed by the petitioner seeking discharge of the offence punishable under Section 13(1)(e) of Prevention of Corruption Act.
These Criminal Revision Petitions having been heard and reserved on 25.11.2019 coming on for pronouncement of Orders this day, the Court made the following:-
O R D E R Criminal Revision Petition No.245/2019 has been filed by accused No.2, Criminal Revision Petition No.356/2019 has been filed by accused No.1 and Criminal Revision Petition No.279/2019 has been filed by accused No.3, challenging the order passed by LXXVI Additional City Civil and Sessions Judge and Special Judge, Mayo Hall Unit, Bengaluru in Special Case No.334/2010 dated 13.6.2018 and 20.8.2018, whereunder applications filed by the petitioners-accused Nos.2 and 3 and accused No.1 respectively, came to be dismissed.
2. I have heard Sri P.Prasanna Kumar, learned Advocate appearing for Smt. Rashmi Jadhav, for petitioners and Sri.B.S.Prasad, Special Public Prosecutor for respondent-Lokayuktha.
3. The brief facts of the case are that, on the basis of a source report submitted by the Superintendent of Police, Lokayuktha, Bengaluru Division, a case was registered in Crime No.28/2007 against accused No.1 for the offence punishable under Section 13(1)(e) r/w Section 13(2) of the Prevention of Corruption Act on the allegation that petitioner-accused No.1 has amassed wealth disproportionate to known sources of income to the tune of Rs.4,12,17,952/- about 435.80% by inflating the price of assets and expenditure and by reducing the income received by accused No.1. After investigation, charge sheet has been filed against the petitioners herein.
4. It is the contention of the learned counsel for the petitioners-accused that the impugned order of the trial Court is contrary to facts, law and material placed on record, which has resulted into miscarriage of justice. The sanction issued by the Desk Officer of Transport Department is not in accordance with law. He has not applied his mind and is not competent to issue the said sanction order. It is his further submission that all the relevant materials have to be apprised and facts must reveal that he has applied his mind and has appreciated the materials relevant for the purpose of issuance of sanction. It is his contention that in the sanction order issued by the Desk Officer, no such material has been placed. In order to substantiate his contention, the learned counsel has relied upon the decision in the case of P.L.Tatwal Vs. State of Madhya Pradesh reported in (2014) 11 SCC 431.
He has submitted that the provisions of Section 13(1)(e) of the Prevention of Corruption Act are not attracted to accused Nos.2 and 3. The calculation has been done with double counting. If the said double counting is eliminated, case of prosecution will not sustain. It is his further submission that the validity of sanction could be raised at any time and if the Court considers that the sanction is not in accordance with law, it has to discharge the accused for the alleged offences. In order to substantiate the said contention, he relied upon the decision in the case of Nanjappa Vs. State of Karnataka reported in (2015)14 SCC 186. He has submitted that the income of accused No.2 and 3 has not been properly and correctly assessed and no break up has been given. As such, the charge sheet filed is a defective one. The trial Court, without considering the said fact, has come to a wrong conclusion in dismissing the applications. On these grounds, he has prayed to allow the petitions and to set aside the impugned order and discharge these petitioners-accused Nos.1 to 3.
5. Per-contra, learned Special Public Prosecutor has vehemently argued that the Desk Officer has put up the file through Under Secretary and Secretary and subsequently, the same has been got approved by the concerned Minister and the Governor. The sanction order has been issued in the name of the Governor. The Karnataka Government (Transaction of Business) Rules, 1977 empowers the official to issue orders in the name of the Governor. The concerned Minister has applied his mind to the factual matrix and thereafter, approved for issuance of sanction order and in pursuance to the same, the Desk Officer has issued the sanction order. There is no illegality or irregularity in issuance of said sanction order.
To substantiate the said contention, he relied upon the decision of Co-ordinate Bench of this Court in the case of Dr.H.C.Sathyan Vs. The State of Karnataka rendered in Crl.P.No.899/2017 by order dated 15.6.2017.
Further, he also relied upon one more decision of the Co-ordinate Bench in the case of Sri Theerthira N Appachu @ Titira N Appachu Vs. State of Karnataka, Represented by Police Inspector, Karnataka Lokayukta reported in ILR 2018 KAR 4459 and submitted that in the case of person who is employed in connection with the affairs of a State and is not removable from his office or with the sanction of the State Government, then the State Government through the concerned Minister can issue sanction order.
It is his further submission that voluminous documents have been produced by the prosecution along with the charge sheet, which clearly goes to show that accused No.3 is not having any source of income, even then, she has transacted in crores of rupees and in this regard, no proper declaration or explanation has been given by accused No.3. Accused No.2 has contended that he is doing contract work, but he has not produced any material about his source of income. As such, they have been arraigned as accused on the ground that they have conspired with accused No.1 for holding illegal amount amassed by accused No.1.
He has further submitted that the contentions which have been raised by the learned counsel for the petitioners- accused are matter of evidence. Without adducing evidence, it is very difficult for the Court to come to the conclusion that breakup has not been given and double calculation has been made.
It is his submission that accused are entitled for discharge only when all the materials produced by them before the Court are accepted without rebuttal and no case has been made out against them. In the instant case, ample material has been produced to show that accused No.1 has amassed benami wealth in the names of accused Nos.2 and 3. On these grounds, he prayed to dismiss the petitions.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
7. Grant of sanction under Section 19 of the Prevention of Corruption Act is must in order to bring home the guilt of accused No.1 who was working as Senior Motor Vehicle Inspector in Road Transport Department. It is alleged by the prosecution that accused No.1 while working in that capacity has amassed wealth disproportionate to the known sources of income. It is the contention of the learned Special Public Prosecutor that the Sanction Order dated 21.9.2010 has been issued by the Desk Officer in the name of the Governor. There is no dispute with regard to settled position of law that sanction has to be challenged at an earliest stage. Even if it is not challenged, it can be raised at any earliest stage. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Nanjappa Vs. State of Karnataka referred to supra. In the case on hand, charges have not yet been framed. As such, the said aspect has been raised at an earliest point of time and much discussion is not required on this issue.
8. On going through the arguments advanced by the learned counsel for the petitioners, it is seen that the competency of the authority to remove the petitioner from his post and the approval made by the concerned Minister and the Governor is not seriously challenged. Therefore, the fact that Government is the competent authority to issue sanction order is not in dispute. It is the specific contention of the learned counsel for the petitioners that the sanction order does not reveal application of mind. The Sanctioning Authority has to be apprised of all the relevant materials, on the basis of which, the authority has to take a conscious decision as to whether the offence alleged is attracted under the relevant provisions. In this regard, he has relied upon the decision in the case of P.L.Tatwal quoted supra wherein at paragraph No.12 of the said judgment, it has been observed as under:
“12. The grant of sanction is only an administrative function. It is intended to protect public servants against frivolous and vexatious litigation. It also ensures that a dishonest officer is brought before law and is tried in accordance with law. Thus, it is a serious exercise of power by the competent authority. It has to be apprised of all the relevant materials, and on such materials, the authority has to take a conscious decision as to whether the facts would reveal the commission of an offence under the relevant provisions. No doubt, an elaborate discussion in that regard in the order is not necessary.
But decision-making on relevant materials should be reflected in the order and if not, it should be capable of proof before the court.”
9. In order to establish the fact that the concerned authorities have applied their mind, the Desk Officer came to be examined as P.W.1. In his evidence, he has clearly deposed that the concerned Minister after application of mind has issued the Sanction Order, though, during cross- examination he has contended that he is not having any personal knowledge with regard to application of mind by the concerned authority. But when he himself has deposed that the Hon’ble Minister, after thoroughly going through the file has accorded the sanction, based on which, he executed the Sanction Order, it indicates that the concerned Minister of Transport Department, after application of mind and going through the records has approved and Desk Officer has issued the said order in the name of Governor. The trial Court after proper enquiry as to whether all the relevant materials were placed before the competent authority and after verification and application of mind, the said authority has issued the sanction and the same has been approved by the Governor, has dismissed the applications filed by the petitioners.
10. It is the contention of the learned Special Public Prosecutor appearing for respondent that the Desk Officer has issued the Sanction Order in pursuance to the Karnataka Government (Transanction of Business) Rules, 1977. I have carefully and cautiously gone through the said Rules. It indicates that whenever any order has to be issued in the name of the Government, it should be in the name of the Governor under Article 166 of the Constitution of India. It does not mean to say that all orders of the Government shall be perused and issued by the Governor. In the said Rules there are 3 schedules. First schedule contains certain Rules, specifically categorizing the subjects which are required to be placed before the cabinet for decision. Second schedule refers to the subject matters, which are to be placed before the Chief Minister and third schedule refers to the subject matters which are to be submitted to the Governor for decision. As per the said Rules, the Secretary of a particular department submits the files for orders to the Minister-in-charge or to the Minister of the State or the Deputy Minister of the concerned Department and the same would be approved.
11. Admittedly, in the instant case, petitioner was working as a Senior Motor Vehicle Inspector in the Transport Department. The Transport Minister is the top most authority competent to accord sanction and he has accorded sanction. When all the procedures have been followed as contemplated under the law, it can be presumed that the concerned Minister has gone through the material collected during the course of investigation and thereafter, issued the Sanction Order. A mere error, omission or irregularity in sanction is not considered to be fatal unless, it has resulted in a failure of justice and does not go to the root of jurisdiction. This proposition of law has bee laid down by the Hon’ble Apex Court in the case of Vinod Kumar Garg Vs. State (Government of National Capital Territory of Delhi) reported in Crl.A.No.1781/2009.
12. If there is no pleading as to the injustice caused due to error or irregularity in grant of sanction, the Court will not incline to interfere with such orders. This proposition of law has been laid down by the Hon’ble Apex Court in the case of State of Bihar Vs. Rajmangal Ram reported in AIR 2014 SC 1674.
13. Further, if the sanction order speaks for itself, then there is no need to lead evidence and if it does not, it should be proved by leading evidence to the effect that all the papers have been placed before the Sanctioning Authority for due application of mind and thereafter, issued the sanction. This proposition of law has also been laid down in the case of C.S.Krishnamurthy Vs. State of Karnataka reported in 2005(4) SCC 81.
14. In the instant case, P.W.1-Desk Officer has been examined and the order was passed in discharge of duties through a procedure as laid down in the Karnataka Government (Transaction of Business) Rules, 1977. There is a presumption with regard to application of mind, unless it is shown otherwise by the accused person.
15. In each of the paragraphs of the Sanction Order it has been specifically mentioned as to what are the documents and articles seized by drawing mahazar and produced by the authorities and the total value of disproportionate amount accused No.1 was possessing and only thereafter, the sanction order has been issued.
16. Looking from all the angles, it cannot be held that the Sanctioning Authority has not applied its mind and only through an internal arrangement it has been processed and the sanction has been issued. If no procedure is followed, then it is only an irregularity. But, it is not the case of the accused that no such procedure has been adopted. In that light, the contention taken up by the learned counsel for the petitioners does not survive for consideration and the same is liable to be rejected.
17. The next contention taken up by the learned counsel appearing for the petitioners insofar as accused Nos.2 and 3 are concerned is, there is double counting of the amount standing in the name of accused Nos.2 and 3 and correct breakup has not been furnished.
18. While considering the question of framing charge, the Court has got undoubted power to sift and weigh the evidence for a limited purpose of finding out as to whether there is a prima-facie case made out against the accused or not. If there is mere suspicion, the Court is justified in discharging the accused. But if there is grave suspicion as against accused persons and if it has not been properly explained, the Court would be justified in framing the charge and to proceed with the trial. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Union of India Vs. Prafulla Kumar Samal and Another reported in (1979)3 SCC 4 wherein at paragraph No.10 of the said decision, it has been observed as under :
“10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”
19. Keeping in view the principle laid down in the above said decision if the factual matrix is looked into, it indicates that accused No.1 has amassed wealth in the name of his wife and brother and the said amounts are disproportionate to his known sources of income. It is the contention of the learned counsel for the petitioners- accused that accused No.3 - wife of accused No.1 is also having separate source of income and she is an income tax assessee and accused No.2 is the brother of accused No.1 and he is doing contract work and out of his earnings, he has kept the amount in his account. However, in order to substantiate the said fact no substantive material has been produced. In the absence of the same, at this juncture, it cannot be held that the said amount is that of accused Nos.2 and 3.
20. Accused persons have also been charge sheeted for the offence under Section 120B of IPC and also under Section 109 of IPC for abetment. Under such circumstances, at this premature stage, it cannot be held that there is only suspicion and discharge the petitioners- accused. Matter requires consideration. The trial Court after considering the material on record has come to a right conclusion in dismissing the applications filed by the petitioners. There are no good grounds to interfere with the order of the trial Court and the same deserves to be confirmed.
21. Petitions being devoid of merit, are liable to be dismissed and accordingly, dismissed.
In view of dismissal of the petitions, I.As filed for stay do not survive for consideration. Hence, they are dismissed.
Sd/- JUDGE bkp