IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.946 OF 2019 BETWEEN:
State of Karnataka Represented by Special Public Prosecutor Anti-Corruption Bureau No:49, Khanija Bhavan, Race Course Road, Bengaluru – 01.
(By Sri.Jagadeesha.B.N, Spl.P.P) AND:
K.Shankaramurthy, S/o Kariyappa, Aged about 58 years, A.E.E, BESCOM Vigilance, Chitradurga, A native of Malligere Village, Channagiri Taluk, Davanagere District, Now r/o 4th cross, J.C.R Extension, Chitradurga – 577501.
(By Sri.C.G.Sundar, Advocate – absent) ...Petitioner ...Respondent This Criminal Revision Petition is filed under Section 397 read with 401 of Cr.P.C., praying to set aside the order dated 10.12.2018, in Spl.C(PCA)No.4/2018 (Annexure-A) passed by the Court of Prl. District and Sessions Judge, Chitradurga.
This Criminal Revision Petition coming on for Admission, this day, the Court made the following:
ORDER This petition has been filed by the State challenging the legality and correctness of the order passed by Prl. District and Sessions Judge, Chitradurga in Spl.C.(PCA) No.4/2018 dated 10.12.2018, whereunder the application filed under Sections 227 and 239 of Cr.P.C was allowed in part and accused has been discharged for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as ‘PC Act’ for short).
2. I have heard the learned Special Public Prosecutor Sri.Jagadeesha.B.N for the petitioner. Respondent and his counsel remained absent. There is no representation.
3. The factual matrix of the case is that accused visited land owned by the complainant and at that time the accused raised objection regarding electricity connection of 2 bore wells. The electricity connection was up to 5 HP, although he has obtained the connection only to the extent of 2 HP and the accused demanded a bribe of Rs.20,000/- for each installation and he compromised and settled for Rs.15,000/- per installation. The complainant made a complaint and on the basis of the complaint, a trap has been laid as against the respondent/accused. Thereafter, after investigation, charge sheet has been filed. The respondent/accused filed application contending that Sanction Order was accorded by the Sanctioning Authority by virtue of regulation of 14(a) and (f) of KPTCL Employees (Classification, Disciplinary Control and Appeal) Regulation, 1987 is not valid. The said Regulation was neither placed before the Legislature nor gazetted as mandated by Section 79 of the Electricity Supply Act, 1948. By accepting the said contention, the trial Court allowed the application and discharged the accused. Challenging the same, the State is before this Court.
4. It is the submission of the learned counsel for the petitioner that the trial Court has wholly misdirected itself regarding the provisions of the Electricity Laws and has wrongly discharged the accused. Only on wrong premise that the said notification has not been gazetted and not placed before the legislation and now the Electricity Supply Act, 1948 is not in force, the Court below has discharged the accused.
5. It is his further submission that as per Section 19(1)(c) of the PC Act, the person who is competent to remove the employee is also having the authority to issue sanction. It is his further submission that in the instant case, the Director (A & HR) is the authority, who is having the power of appointment and power to remove the Assistant Executive Engineer. Then in that light also, the view taken by the Court below is not correct. It is his further submission that there is a distinction between absence of sanction and the invalidity of account of non application of mind. In the absence of sanction, it can be agitated at the threshold but, the invalidity of the sanction is to be raised during the trial. Without looking into the said proposition, the trial Court has passed the impugned order.
6. In order to substantiate the said fact, he relied upon the decision in the case of Central Bureau Of Investigation (CBI) etc., V/S Pramila Virendra Kumar Agarwal And Another reported in 2019 SCC OnLine SC 1265. It is his further submission that in order to discharge the accused what is the hardship or inconvenience, which is going to cause in the absence of sanction has to be specifically pleaded. In the absence of that, the discharge made by the Court below is not sustainable in law. In order to substantiate his contention, he relied upon the decision in the case of State of Madhya Pradesh v/s Virender Kumar Tripathi reported in (2009) 15 SCC 533. It is his further submission that he is not disputing that the said authorities, who have been given with the delegation of power, has to be notified as contemplated under the law and the same has been also upheld in the decision by this Court in Crl.P.No.7157/2016. But, however, it is his submission that even in the absence of such notification, as per Section 19(1)(c) of the PC Act, the removal authority can issue the sanction order. This aspect has not been properly looked into by the Court below. On these grounds, he prayed to allow the petition and to set aside the impugned order.
7. I have carefully and cautiously gone through the records secured in this behalf. The application which has been filed it contains that regulation was not placed before the legislature and it was also not gazetted. Hence, the regulation is not valid as per Section 79 of the Electricity Supply Act.
8. Insofar as the said aspect is concerned, the learned counsel for the petitioner has not disputed. It is his specific contention that as per Section 19(1)(c) of the PC Act, the person who can remove the employee is authorized to issue the sanction. For the purpose of brevity, I quote Section 19(1) of the PC Act which reads as under:
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 have been committed by a public servant, except with the previous sanction,-
(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 9. On close reading of Section 19, it indicates that no Court shall take cognizance of an offence except with the previous sanction that no proceedings can be initiated against the public servant. But as per Section 19(1)(c) of the PC Act in case of any other person of the authority competent to remove him from his office is also competent person to issue a sanction. The trial Court has not kept the said aspect of the law and has wrongly discharged the accused. Even it has been observed by the Hon’ble Apex Court that two aspects have to be considered at the time of considering the discharge application. If the application is that, the sanction which has been issued is invalid on account of non application of mind, then the same can be raised during the course of trial but in the absence of sanction, it goes to the root of the matter and it has to be held at an initial stage at the time of taking cognizance. This proposition of law has been held in the case of Central Bureau of Investigation quoted supra at paragraph No.13 that it has been observed as under:
13. Further the issue relating to validity of the sanction for prosecution could have been considered only during trial since essentially the conclusion reached by the High Court is with regard to the defective sanction since according to the High Court, the procedure of providing opportunity for explanation was not followed which will result in the sanction being defective. In that regard, the decision in the case of Dinesh Kumar vs. Chairman, Airport Authority of India, (2012) 1 SCC 532 relied upon by the learned Additional Solicitor General would be relevant since it is held therein that there is a distinction between the absence of sanction and the alleged invalidity on account of non- application of mind. The absence of sanction no doubt can be agitated at the threshold but the invalidity of the sanction is to be raised during the trial. In the instant facts, admittedly there is a sanction though the accused seek to pick holes in the manner the sanction has been granted and to claim that the same is defective which is a matter to be considered in the trial.
10. Even the said aspect has not been properly considered and appreciated by the trial Court. Even in the application or any other material, what is the injustice or prejudice, which is going to cause is also not been pleaded. When the accused/respondent has been involved in a serious offence like taking bribe for doing his service, then under such circumstances, the Court below ought to have applied its mind and it ought to have properly appreciated the things. Without looking into the provision of Section 19(1)(c) of the PC Act, it has come to the wrong conclusion and wrongly discharged the accused and even it is mandated by the Hon’ble Apex Court in the case of State of Madhya Pradesh quoted supra at paragraph 10, it has been observed as under:
10. In the instant case there was not even a whisper or pleading about any failure of justice. The stage when this failure is to be established is yet to be reached since the case is at the stage of framing of charge whether or not failure has in fact been occasioned was to be determined once the trial commenced and evidence was led. In this connection the decisions of this Court in State v. T.Venkatesh Murthy and in Parkash Singh Badal v. State of Punjab need to be noted. That being so the High Court’s view quashing the proceedings cannot be sustained and the State’s appeal deserves to be allowed which we direct.
11. When the accused/respondent has failed to establish the fact what is the prejudice or injustice which is going to be caused if the said application has not been entertained, in that light also, the order of the trial Court is liable to be set aside. Keeping in view the above said facts and circumstances, I am of the considered opinion that the petitioner - State has made out a case to set aside the impugned order.
12. Accordingly, petition is allowed and the order dated 10.12.2018 passed by the Prl. District and Sessions Judge, Chitradurga in Spl.C (PCA) No.4/2018 is set aside and matter is remitted back to the Court below to proceed in accordance with law.
Sd/- JUDGE NS