B. Kalimulla vs The State Of Andhra Pradesh
2021 Latest Caselaw 3700 AP

       IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

     HON'BLE Mr. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                &
             HON'BLE Mr. JUSTICE NINALA JAYASURYA

                       WRIT APPEAL No.203 of 2020

                         (Through Video-Conferencing)

B. Kalimulla, S/o. late B. Nabi Sab, age 58 years,
Dy. Executive Engineer, O/o. Chief Engineer
(Projects) Kadapa                                                 ... Appellant

                                        Versus

The State of Andhra Pradesh, represented by its
Principal Secretary, Irrigation and Command Area
Development (Ser.VI) Department, Secretariat
Building, Hyderabad, now at Velagapudi, Guntur
District, and another                                          ... Respondents


Counsel for the appellant           :       Mr. K. Rathanga Pani Reddy

Counsel for respondent No.2         :       Mr. S.M. Subhani


Date of hearing                     :       07.09.2021

Date of judgment                    :       23.09.2021


                                  JUDGMENT

(Arup Kumar Goswami, CJ)

This appeal is directed against an order dated 20.02.2020 passed by

the learned single Judge in W.P.No.16176 of 2014, whereby the writ petition

challenging G.O.Ms.No.30, Irrigation & Command Area Development

(IW: Services VI 1) Department dated 29.05.2014, ordering for prosecution

of the petitioner (appellant herein) was dismissed.

2. Heard Mr. K. Rathanga Pani Reddy, learned counsel for the appellant

and Mr. S.M. Subhani, learned standing counsel for Anti Corruption Bureau,

appearing for respondent No.2.

3. Appellant in the present appeal shall be referred to as the petitioner.

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4. The case of the petitioner, in short, as presented in the writ affidavit

is that the petitioner joined as Assistant Executive Engineer on 10.11.1987

and was subsequently promoted as Deputy Executive Engineer in HLC

Localization Sub-Division, Garladinne, Anantapur Division on 08.12.2007.

While serving as such, respondent No.2, i.e. the Director General, Anti

Corruption Bureau, registered a case in Cr.No.3/RCA-ATP/2010 under

Section 13(2) read with 13(1)(e) of Prevention of Corruption Act, 1988 (for

short, "the Act of 1988") alleging that petitioner is in possession of assets

disproportionate to the known sources of income. Respondent No.2 had

served a notice dated 21.01.2011 calling for explanation. The petitioner had

submitted explanation controverting the alleged assessment of

disproportionate assets to the tune of Rs.73,09,792/- and contending that

value of assets possessed by him and his family members are to the tune of

Rs.46,88,762/-, which is well within the income from legitimate/licit and

declared sources against the likely savings i.e. Rs.69,74,538/- and,

accordingly, prayed for dropping further action.

5. Respondent No.2, by letter dated 20.03.2013, recommended

prosecuting the petitioner under Sections 13(2) read with 13(1)(e) of the Act

of 1988. However, the Principal Secretary to Government, Irrigation and

Command Area Development (Ser.VI) Department, i.e. respondent No.1

issued memo dated 07.12.2013, stating that it was decided to conduct a

departmental enquiry into the charges instead of prosecution. Subsequently,

on that very date, by G.O.Rt.No.1171 dated 07.12.2013, it was proposed to

hold an enquiry against the petitioner in terms of Rule 20 of Andhra Pradesh

Civil Services (CC&A) Rules, 1991 (for short, "the Rules"). A copy of the

articles of charges, statement of imputations of misconduct or misbehaviour

in support of each article of charge, list of witnesses by whom the articles of 3 HCJ & NJS,J W.A.No.203 of 2020

charges are proposed to be proved and a list of documents in support of

charges proposed to be sustained, were enclosed at Annexures I, II, II & IV

respectively.

6. The two charges framed are as follows:

"Charge-I: He neither obtained prior permission from

the competent authority nor intimated to the

competent authority in respect of the purchase of the

Movable and Immovable assets purchased in his name

and in the name of his family members as mentioned in

Annexure - I.

Charge-II: He did not submit Annual Property Returns

to the competent authority during his service i.e., from

10.11.1987 to 09.04.2010."

7. It is stated that by the above-mentioned acts, the petitioner exhibited

lack of integrity, devotion to duty and conduct unbecoming of a Government

servant and thereby contravened Rules 3 (1), (2) and 9(1), (2) & (7) of

A.P.C.S. (Conduct) Rules, 1964."

8. Subsequently, respondent No.1, by G.O.Ms.No.30 Irrigation &

Command Area Development (IW: Services VI 1) Department dated

29.05.2014, in exercise of powers conferred under clause (b) of sub-section

1 of Section 19 of the Act of 1988, accorded sanction for the prosecution of

the petitioner for the offences punishable under Section 13(2) read with

Section 13(1)(e) of the Act of 1988 and for any other cognate offences

punishable under any other provisions of law. Challenging the aforesaid

G.O., the writ petition came to be filed.

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9. The learned single Judge recorded a finding that the decision in the

case of Sri K. Srinivasulu v. the Government of A.P., rep. by its

Principal Secretary, Home (SC.A) Dept., reported in 2010 (3) ALD

452, squarely applies to the facts of the case. Reliance was also placed on

the decisions in K. Rama Krishna Raju v. Government of Andhra

Pradesh, reported in 2012 (2) ALD 425, State of Maharashtra

through Central Bureau of Investigation v. Mahesh G. Jain, reported

in (2013) 8 SCC 119 and Sri Bhavana Rishi Co-op. House Building

Society, R.R. District v. Information Commission, Hyderabad,

reported in 2010 (3) ALD 465. It was held that merely because a memo

was issued earlier recommending disciplinary action, it cannot lead to an

inescapable conclusion that the sanction of prosecution cannot be granted

later and that even if there was no sufficient material firstly, the law permits

the State to re-look into the issue of sanction of prosecution. Holding as

aforesaid, the writ petition was dismissed.

10. Mr. K. Rathanga Pani Reddy, learned counsel for the petitioner

submits that being satisfied with the stand taken by the petitioner, decision

was taken not to prosecute the petitioner, but to conduct only disciplinary

enquiry and, therefore, in the absence of there being any fresh material to

come to a conclusion that prosecution should be commenced, the

subsequent order dated 29.05.2014 recommending prosecution cannot be

countenanced in law. It is submitted that the learned single Judge failed to

consider the matter in its correct perspective and the learned single Judge

wrongly placed reliance on the judgments as noticed, in coming to the

eventual conclusion. He has also submitted that while passing the order

dated 29.05.2014, decision taken earlier by memo dated 07.12.2013 to

conduct only departmental enquiry instead of prosecution was overlooked 5 HCJ & NJS,J W.A.No.203 of 2020

and, therefore, the same, ex facie, demonstrates non-application of mind.

He relies on the decisions of the Hon'ble Supreme Court in State of Punjab

and another v. Mohammed Iqbal Bhattii, reported in (2009) 17 SCC

92 and State of Himachal Pradesh v. Nishant Sareen, reported in

(2010) 14 SCC 527.

11. Mr. S.M. Subhani, learned standing counsel for respondent No.2, relies

on the reasonings assigned by the learned single Judge and submits that no

case is made out for interference with the order of the learned single Judge.

12. We have considered the submissions of the learned counsel for the

parties and perused the materials on record.

13. At the very outset, it will be appropriate to extract the memo dated

07.12.2013, which reads as under:

"The attention of the Director General, Anti-Corruption

Bureau, Hyderabad is invited to the reference cited,

wherein he has recommended for prosecuting the

Accused Officer Sri B. Kalimullah, Deputy Executive

Engineer in a competent Court of Law under Sections 13

(2) read with 13 (1) (e) of Prevention of Corruption Act,

1988.

After careful examination of the matter, and after duly

considering the totality of the facts and circumstances

of the matter, it has been decided to conduct a

Departmental Enquiry into the charges instead of

Prosecution.

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                                                                  W.A.No.203 of 2020




            The      Director   General,      Anti-Corruption      Bureau,

Hyderabad is, therefore, requested to furnish the draft

Articles of Charges on the allegation of acquisition of

disproportionate assets against Sri B. Kalimullah,

formerly Deputy Executive Engineer, H.L.C. Localization

Sub-Division, Garladinne, Anantapur District urgently for

initiating departmental action against Sri B. Kalimullah,

Deputy Executive Engineer in disproportionate assets

case."

14. It will also be appropriate to extract relevant portion of G.O.Ms.No.30

dated 29.05.2014, which reads as under:

"3. And whereas, for the purpose of investigation, the

check period of the Government Servant was taken

from 10.11.1987 i.e. the date on which the Accused

Officer joined into Government service till 09.04.2010

i.e. the date on which searches were conducted;

4. And whereas, it is alleged that the said Sri B.

Kalimullah, Incharge Deputy Executive Engineer, HLC

Localization Sub-Division, Garladinne, Anantapur

District, during the above said check period, acquired

Assets in his name and in the names of his family

members to the extent of Rs.87,26,357-00. The income

of the said Sri B. Kalimullah from all the known sources

during the above check period is estimated to be

Rs.47,44,935-00. The total expenditure of Sri B.

Kalimullah during the above check period is worked out

to Rs.33,28,370-00. The likely savings of Sri B.

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                                                      W.A.No.203 of 2020

Kalimullah during the check period of was Rs.14,16,565-

00 (i.e., Total income of Rs.47,44,935-00 Minus Total

expenditure of Rs.33,28,370-00. As such, Sri B.

Kalimullah is found to be in possession of

Disproportionate) Assets worth Rs.73,09,793/- (Total

Assets of Rs.87,26,357-00) minus likely savings of

Rs.14,16,565-00 which he acquired by corrupt and

dubious methods;

5. And whereas, the aforesaid acts of Sri B. Kalimullah,

Incharge Deputy Executive Engineer, HLC Localization

Sub-Division, Garladinne, Anantapur District constitute

the offences punishable under Section 13(2) r/w section

13(1)(e) of the Prevention of Corruption Act, 1988

(Central Act 49 of 1988);

6. And whereas, the Government of Andhra Pradesh

being the competent authority to remove him from

service after fully and carefully examining the material

viz., copy of F.I.R., copies of statements of witnesses,

copies of documents and other placed before them in

respect of the above said allegation and having regard

to the facts and circumstances of the case, consider

that the said Sri B. Kalimullah, Incharge Deputy

Executive Engineer, HLC Localization Sub-Division,

Garladinne, Anantapur District should be prosecuted in a

court of law for the said offence;

"7. Now, therefore, in exercise of the powers conferred

under clause (b) of sub-section (1) of Section 19 of the 8 HCJ & NJS,J W.A.No.203 of 2020

Prevention of Corruption Act, 1988 (Central Act 49 of

1988), the Government of Andhra Pradesh hereby

accord sanction for the prosecution of the said Sri B.

Kalimullah, Incharge Deputy Executive Engineer, HLC

Localization Sub-Division, Garladinne, Anantapur District

for the said offences punishable under Section 13(2)

read with section 13(1)(e) of Prevention of Corruption

Act, 1988 (Central Act 49 of 1988) and for any other

cognate offences punishable under any other provisions

of law for the time being in force in respect of the

aforesaid acts and for taking cognizance of the said

offence by the court of competent jurisdiction."

15. A perusal of the memo dated 07.12.2013 goes to show that though it

is stated therein that after careful examination of the matter and after duly

considering the totality of the facts and circumstances of the matter, it was

decided to conduct a departmental enquiry into the charges instead of

prosecution, no reasoning was assigned as to why it was decided to conduct

only a departmental enquiry instead of prosecution.

16. In Mohd. Iqbal Bhattii (supra), the Hon'ble Supreme Court had an

occasion to consider the question whether the State has any power to review

in the matter of grant of sanction in terms of Section 197 of the Code of

Criminal Procedure, 1973. It was observed at paragraphs 6 and 7 as follows:

"6. Although the State in the matter of grant or refusal

to grant sanction exercises statutory jurisdiction, the

same, however, would not mean that power once

exercised cannot be exercised once again. For

exercising its jurisdiction at a subsequent stage, express 9 HCJ & NJS,J W.A.No.203 of 2020

power of review in the State may not be necessary as

even such a power is administrative in character. It is,

however, beyond any cavil that while passing an order

for grant of sanction, serious application of mind on the

part of the authority concerned is imperative. The

legality and/or validity of the order granting sanction

would be subject to review by the criminal courts. An

order refusing to grant sanction may attract judicial

review by the superior courts.

7. Validity of an order of sanction would depend upon

application of mind on the part of the authority

concerned and the material placed before it. All such

material facts and material evidence must be considered

by it. The sanctioning authority must apply its mind on

such material facts and evidence collected during the

investigation. Even such application of mind does not

appear from the order of sanction, extrinsic evidence

may be placed before the court in that behalf. While

granting sanction, the authority cannot take into

consideration an irrelevant fact nor can it pass an order

on extraneous consideration not germane for passing a

statutory order. It is also well settled that the superior

courts cannot direct the sanctioning authority either to

grant sanction or not to do so. The source of power of

an authority passing an order of sanction must also be

considered. (See Mansukhlal Vithaldas Chauhan v. State

of Gujarat [(1997) 7 SCC 622 : 1997 SCC (L&S) 1784 :

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                                                                   W.A.No.203 of 2020

1997 SCC (Cri) 1120] .) The authority concerned cannot

also pass an order of sanction subject to ratification of a

higher authority. [See State v. Dr. R.C. Anand [(2004) 4

SCC 615 : 2004 SCC (Cri) 1380] .]"

17. A perusal of the above would go to show that although the State in

the matter of grant of or refusal to grant sanction exercises statutory

jurisdiction, the same, however, would not mean that power once exercised

cannot be exercised once again. It is also manifest that while passing an

order for grant of sanction, serious application of mind on the part of the

authority concerned is imperative. The sanctioning authority must apply its

mind on all material facts and material evidence collected during the

investigation.

18. In paragraph 12 of Nishant Sareen (supra), the Hon'ble Supreme

Court has observed as follows:

"It is true that the Government in the matter of grant or

refusal to grant sanction exercises statutory power and that

would not mean that power once exercised cannot be

exercised again or at a subsequent stage in the absence of

express power of review in no circumstance whatsoever. The

power of review, however, is not unbridled or unrestricted. It

seems to us a sound principle to follow that once the statutory

power under Section 19 of the 1988 Act or Section 197 of the

Code has been exercised by the Government or the competent

authority, as the case may be, it is not permissible for the

sanctioning authority to review or reconsider the matter on the

same materials again. It is so because unrestricted power of

review may not bring finality to such exercise and on change 11 HCJ & NJS,J W.A.No.203 of 2020

of the Government or change of the person authorised to

exercise power of sanction, the matter concerning sanction

may be reopened by such authority for the reasons best

known to it and a different order may be passed. The opinion

on the same materials, thus, may keep on changing and there

may not be any end to such statutory exercise."

19. In Nishant Sareen (supra), it was observed by the Hon'ble Supreme

Court that the Government in the matter of grant of or refusal to grant

sanction exercises statutory power and that would not mean that power once

exercised cannot be exercised again or at a subsequent stage in the absence

of express power of review in no circumstance whatsoever. It was, however,

held that the power of review is not unbridled. It is further held that once

statutory power under Section 19 of the Act of 1988 or Section 197 of the

Code of Criminal Procedure, 1973 is exercised by the Government or by the

competent authority, it is not permissible for the sanctioning authority to

review or reconsider the matter on the same materials again, as unrestricted

power of review may not bring finalty to such exercise and on change of the

Government or change of the person authorised to exercise power of

sanction, the matter concerning sanction may be reopened by such authority

for the reasons best known to him and a different order may be passed. It

was accordingly observed that a change of opinion, per se, on the same

materials cannot be a ground for reviewing or reconsidering the earlier order

refusing to grant sanction. However, in case where fresh materials have

been collected by the investigating agency subsequent to the earlier order

and placed before the sanctioning authority and on that basis, the matter is

reconsidered by the sanctioning authority and in the light of the fresh 12 HCJ & NJS,J W.A.No.203 of 2020

materials an opinion is formed that sanction to prosecute the public servant

may be granted, there may not be any impediment to adopt such course.

20. In Romesh Lal Jain v. Naginder Singh Rana and others,

reported in (2006) 1 SCC 294, it was held by the Hon'ble Supreme Court

as follows:

"14... an order granting or refusing sanction must be

preceded by application of mind on the part of the

appropriate authority. If the complainant or the accused

can demonstrate such an order granting or refusing

sanction to be suffering from non-application of mind, the

same may be called in question before a competent court

of law."

21. In Sri K. Srinivasulu (supra), a Division Bench of this Court had

held that the order of sanction must, ex facie, disclose that the sanctioning

authority had considered the evidence and other materials placed before it.

While the order of sanction need not contain detailed reasons, basic facts

that constitute the offence must be apparent on the order. In the said case,

G.O.Ms.No.25 dated 15.01.2009 did not even state that sanction was being

refused and all that the G.O. recorded is that the Government had decided

to initiate a departmental enquiry against the 4th respondent. The

contention advanced on behalf of the State that as Central Government had

directed disciplinary proceedings to be initiated against the officer, it must

be inferred that the Government had rejected the request of the Anti-

Corruption Bureau for grant of sanction, was repelled by holding that there

must be a clear recital in the order that sanction for prosecution under the

Act of 1988 is being accorded or refused. It was also held that in the 13 HCJ & NJS,J W.A.No.203 of 2020

absence of any explicit statement of refusal, the impugned order suffered

from non-application of mind.

22. In K. Rama Krishna Raju (supra), a learned single Judge of this

Court had observed that according or refusing to accord sanction for

prosecution is not an empty formality and requires application of mind. In

that case, it was held that the mere fact that the matter had been referred to

the Tribunal for Disciplinary Proceedings does not, by itself, necessitate the

inference that the competent authority had, impliedly, refused to accord

sanction for prosecuting the petitioner before the competent Criminal Court

and that in the absence of any order being passed earlier refusing to accord

sanction for prosecution, it cannot be said that the order according sanction

under the impugned G.O., amounted to a review.

23. In Mahesh G. Jain (supra), the Hon'ble Supreme Court had observed

that the sanction order may expressly show that the sanctioning authority

has perused the material placed before him and after consideration of the

circumstance, has granted sanction of prosecution and that the prosecution

may also prove by adducing evidence that the material was placed before

the sanctioning authority and a satisfaction was arrived at upon perusal of

the materials before him.

24. The memo dated 07.12.2013 is a cryptic order and abruptly a

conclusion was drawn to conduct departmental enquiry into the charges

instead of prosecution. It will be a futile exercise if an order granting

sanction or refusing sanction is passed in a routine manner. The order

granting sanction must be demonstrative of the fact that there was proper

application of mind on the part of the sanctioning authority. That the

competent authority did not apply its mind is evident from the fact that the

aforesaid order did not state that sanction was refused. The memo dated 14 HCJ & NJS,J W.A.No.203 of 2020

07.12.2013 does not indicate what materials have been examined and it

merely records that totality of the facts and circumstances were considered.

It cannot be construed that by memo dated 07.12.2013 sanction was

refused. On the other hand, the order dated 29.05.2014, as noticed earlier,

demonstrates that there is application of mind to the relevant facts and

materials on record and on being satisfied, it was decided to exercise powers

under clause (b) of sub-section 1 of Section 19 of the Act of 1988 to accord

sanction for the prosecution of the petitioner for the offences punishable

under Section 13(2) read with Section 13(1)(e) of the Act of 1988. In the

facts and circumstances of the case, we are of the considered opinion that

the order dated 29.05.2014 is not an order passed reviewing the memo

dated 07.12.2013.

25. In view of the above discussions, we are of the opinion that no case is

made out to interfere with the order of the learned single Judge and,

accordingly, the appeal is dismissed. No order as to costs. Pending

miscellaneous applications, if any, shall stand closed.

ARUP KUMAR GOSWAMI, CJ                               NINALA JAYASURYA, J

MRR