Sri Chinthalapalli Patta Govinda ... vs Secretary, Planning Iii Dept., ...
2022 Latest Caselaw 2540 AP

          THE HON'BLE Dr. JUSTICE K. MANMADHA RAO

                   WRIT PETITION No.21570 of 2017

ORDER:

This Writ Petition is filed under Article 226 of the Constitution

of India, seeking the following relief:

".....to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus, declaring the impugned action of the 1st respondent in issuing the G.O.Ms .No.6, dated: 26.04.2017, wherein sanction was accorded to prosecute the petitioner for the offences punishable under Section 13(2) r/w Section 13(1)(e) of the Prevention of Corruption Act,1988, as illegal ,arbitrary, discriminatory, unwarranted ,contrary to the service law principles , and in clear violation of Articles 14,16 and 21 of the Constitution of India and consequently quash all the proceedings pursuant to the impugned G.O.Ms .No.6, Dt.26-04-2017 , and issue any other orders which the Hon'ble Court may deem fit and proper in the circumstances of the case and in the interests of Justice."

2. The claim of the petitioner is that he joined as Assistant

Statistical Officer in Andhra Pradesh Economic and Statistical

Services on 28.02.1994 and worked at Penagaluru, railway Koduru

and Obulavaripally Mandals of YSR Kadapa District till 15.06.2011.

It is stated that a case was registered against him by the Joint

Director, Anti-Corruption Bureau (ACB), Hyderabad vide Crime No.

10/RCA-TCT/2011 on the allegation that the petitioner had acquired

and possessed assets disproportionate to his known sources of

income. Thereafter the investigation officer had confirmed that the

petitioner has acquired an inordinate assets by corrupt and illegal

means which is a travesty of investigation. The 1st respondent merely

basing on a gross misinformation and without narrating any

substantial grounds, issued the impugned G.O.Ms .No.6, Dated

26.04.2017. Hence, the present writ petition.

3. Counter affidavit is filed by the respondents denying all the

allegations made in the petition and contended that the statement of

the petitioner blaming the department on source report and

registering the crime against him is not correct because the "Source

Report" is the lookafter of the ACB Department and also the entire

exercise in registering the crime against the petitioner also done by

the ACB department. However, this department has admitted that

the post of ASO is non focal post with extensive nature of tour in

discharging the duties attached to the post, but a conclusion cannot

be drawn in his favour invariably. Further with regard to the enquiry

report, an assumption might be drawn by the Enquiry Officer that the

worth of his assets grown by leaps and bounds because of land boom

and rapid increase in the market prices in real estate, which cannot

stand before the law, since the petitioner has failed to submit a clear

cut accounts statement of his financial transactions rather than in a

gross manner. It is also stated that as per the recommendations of

the Director General, ACB and as well as Vigilance Commission the

above G.O.Ms.No.6 dated 26.4.2017 was issued by the Government in

Planning Department and as per the said G.O. the Planning

Department have accorded permission to DG, ACB, A.P. to prosecute

the petitioner. It is mainly stated that the petitioner has not made the

DG, ACB, AP as the respondent though the lead role is from the ACB

department. Hence, prayed to dismiss the writ petition.

4. Reply affidavit is filed by the petitioner while reiterating the

contents urged in the counter and contended that the ACB authorities

failed to take into consideration the enquiry report and his detailed

explanation with regard to acquisition of assets but recommended for

prosecution under Prevention of Corruption Act unmindfully and in a

casual manner. It is further stated that the Act of sanction is not an

ideal formality or an acrimonious exercise but a solemn and

sacrosanct act. It is a weapon to ensure discouragement of frivolous

and vexatious prosecution and it is a safe guard for the innocent

public servant. The sanction authority shall exercise its discretion by

applying its mind and not in a pedantic manner. It is an obligation

for the Government to consider all the material at the time of grant of

sanction and non-consideration would make the order of sanction

redundant. It is submitted that in the instant case report of

departmental enquiry was submitted on 22.6.2016 but without

looking into the said report, the ACB submitted final report on

20.7.2016 and the Government issued order of sanction vide

G.O.Ms.No.6, dated 26.4.2017 without application of mind. It is

submitted that the non-consideration of such a vital report would

render the very order of sanction is illegal. The alleged misconduct

would not attract prosecution under Prevention of Corruption Act.

Therefore, according sanction vide G.O.Ms.No.6 is illegal and liable to

be set aside.

5. Heard Mr. P. Gangaiah Naidu, learned Senior Counsel

representing Mrs. Bhanu Priaya. G, learned counsel, appearing for

the petitioner; learned Government Pleader for Services-I and learned

Government Pleader for Finance & Planning appearing for the

respondents.

6. On hearing submissions, this Court is observed that in

similar circumstances this Court in a case of Ch. Ramarao Vs. State

of A.P.1, wherein it was held that "such non consideration and

issuance of order of sanction cannot and for judicial scrutiny."

7. As contended by the learned counsel that the order of

sanction passed by the State Government is highly illegal, arbitrary,

unreasonable and null and void and is a result of total non-

application of mind. It is further contended that the impugned order

is opposed to the very spirit and object of the provisions of the Act. It

is nextly argued that having called for the report from the Chief

Engineer and the Superintending Engineer, the Government is not

justified in not considering the report of Superintending Engineer. It

is also argued that except relying upon the ACB report, the State

Government did not independently consider the issue in the light of

the material including the report of the Superintending Engineer.

Placed reliance on the judgment of Hon'ble Apex Court in Mansukhlal

Vithaldas Chauhan Vs. State of Gujarat and the judgment of this

Court in Sri K.Srinivasulu V. Government of Andhra Pradesh and

others2 .

8. On analyzing the material available on record, this Court

observed that it is a matter of common knowledge that a mere

allegation and accusation of corruption cripples the morale of the

individual and undoubtedly undermines the reputation in the society.

The prosecution under the provisions of Prevention of Corruption Act,

1988 is an extreme action which badly and severely affects and

disturbs the social life of an individual. Unless the Government

comes to a conclusion that there is a substantial material to launch

prosecution, the permission for prosecution cannot be accorded in a

routine, unreasonable and arbitrary manner.

2016 (1) ALD Crl. 125

2010 (3) ALD 452(DB)

9. In the instant case, except the report of the ACB, the State

Government did not independently consider the issue nor considered

any other material including the report of the Superintending

Engineer. A perusal of the impugned order vividly shows that there is

absolutely no application of mind at all. The grant of sanction is not a

mere formality and there is a solemn and sacred duty cast upon the

sanctioning authority to exercise this power with great care, caution

and circumspection and it cannot be lost sight of that this

discretionary power given to the State is a safeguard for innocent

employees and is a sword in the hands of the sanctioning authorities

to prevent frivolous complaints. The attempt of the respondents

justifying the impugned action by way of filing counter cannot be

permitted in view of the law laid down in the judgment of the Hon'ble

Apex Court in the case of Mohinder Singh Gill and Another Vs. The

Chief Election Commissioner, New Delhi and others3, wherein it

was held that when a statutory functionary makes an order based on

certain grounds, its validity must be judged by the reasons so

mentioned and cannot be supplemented by fresh reasons in the

shape of affidavit or otherwise. The Apex Court further held that

otherwise, an order bad in the beginning may, by the time it comes to

Court on account of a challenge, gets validated by additional grounds

later brought out.

10. In a case of this Court reported in Ch. Rama Rao v. The

State of Andhra Pradesh and others4, wherein, at paras 10 and 11,

it was held that:

"10. The prevention of Corruption Act, 1988 which repealed the Prevention of Corruption Act, 1947 and the Criminal Law Amendment Act,

1978 SCR (3) 272

2016 (1) ALD (Crl.) 125

1952 received the assent of the President on 09.09.1988 and was published in the Gazette of India on 10.09.1988. Chapter V of the said legislation deals with sanction for prosecution. The provision of law which is germane and relevant for the purpose of adjudicating the issue in the present writ petition is Section 19 of the Act, which reads as infra:

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.

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

(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, 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 inter-locutory order passed in 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 in stance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.

11. In the instant case, the State Government accorded sanction for prosecution by virtue of G.O.Ms.No.275 dated 29-9-2007 under Section 19 of the Act. In the instant writ petition, it is the case of the petitioner that the impugned order is neither sustainable nor tenable and the failure to consider the material available including the report of the Superintending Engineer is fatal. It is also the contention of the learned Senior Counsel that failure to assign reasons for according sanction for prosecution which is sine qui non for application of mind is fatal to the impugned order. These aspects are required to be evaluated and examined in the light of the judgments cited by the learned Senior Counsel.

11. In a case of Hon'ble Supreme Court reported in L.

Chandra Kumar Versus Union of India and others5, wherein it

was held that:

"In view of the reasoning adopted by us, we hold that Clause 2(d) of

Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the

jurisdiction of the High Courts and the Supreme Court under Articles

226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the

Act and the "exclusion of jurisdiction" clauses in all other legislations

enacted under the aegis of Articles 323A and 323-B would, to the same

extent, be unconstitutional. The jurisdiction conferred upon the High Courts

under Articles 226/227 and upon the Supreme Court under Article 32 of

the Constitution is part of the inviolable basic structure of our Constitution.

While this jurisdiction cannot be ousted, other courts and Tribunals may

(1997) 3 Surpeem Court Cases 261

perform a supplemental role in discharging the powers conferred by

Articles 226/227 and 32 of the Constitution. The Tribunals created under

Article 323-A and Article 323B of the Constitution are possessed of the

competence to test the constitutional validity of statutory provisions and

rules. All decisions of these Tribunals will, however, be subject to scrutiny

before a Division Bench of the High Court within whose jurisdiction the

concerned Tribunal falls. The Tribunals will, nevertheless, continue to act

like Courts of first instance in respect of the areas of law for which they

have been constituted. It will not, therefore, be open for litigants to directly

approach the High Courts even in cases where they question the vires of

statutory legislations (except where the legislation which creates the

particular Tribunal is challenged) by overlooking the jurisdiction of the

concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is

to be interpreted in the manner we have indicated."

12. In view of the foregoing discussion, upon considering the

submissions made by both the learned counsels and the principles

laid down by the Hon'ble Supreme Court and this Court, this Wirt

Petition is allowed, setting aside G.O.Ms.No.6, dated 26.04.2017.

However, it is open for the respondents herein, if so advised, to pass

appropriate orders afresh, in accordance with law and in the light of

the observations made supra. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall

also stand closed.

                                         ___________________________________
                                         DR.JUSTICE K. MANMADHA RAO
Date:    -06-2022.

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      THE HON'BLE Dr.JUSTICE K. MANMADHA RAO




           WRIT PETITION No.21570 of 2017

                   Date: .06.2022.




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