Valluri Venkata Krishnaiah, vs The State Of Andhra Pradesh,
2022 Latest Caselaw 6955 AP

    THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

               WRIT PETITION No.6018 of 2021


ORDER:

The case of the petitioner is as follows:

2. The petitioner had filed the complaint against the

4th respondent on the ground that the 4th respondent sought a

bribe of Rs.20,000/- to see that no action was taken against

the petitioner while he was working as the Chief Executive of

large Size Cooperative Society, Pedapadu, West Godavari

District. A trap is said to have been conducted against the 4th

respondent, on the basis of the complaint given by the

petitioner and Crime No.12/RCT-EWG/2014 dated

02.08.2014 was also registered under Section 7 of the

Prevention of Corruption Act 1988. After the successful trap of

the 4th respondent, further investigation was taken up and

sanctioning prosecution of the 4th respondent was also sought.

At that stage, the case which had been filed before the A.C.B

Court at Vijayawada had been transferred to the A.C.B Court,

Rajamahendravaram and G.O.Ms.No.9 Agriculture and

Cooperation (VIG.II) Department, dated 01.02.2017 was

issued, sanctioning prosecution of the 4th respondent under

various provisions of the Prevention of Corruption Act, 1988.

Thereafter, cognizance of the case was taken and numbered as

C.C.No.116 of 2018.

3. It is further stated that even before sanction had

been granted on 01.02.2017, the Vigilance Commissioner by

his letter dated 24.06.2016 had informed the Special Chief

Secretary to the Government that the matter had been

reexamined, on account of various representations of the 4th

respondent and an opinion had formed that the pre-

ponderance of evidence would not stand judicial scrutiny and

therefore, it would be appropriate to initiate departmental

proceedings, against the 4th respondent instead of

prosecution.

4. While the case was pending before the Special

Court, the 4th respondent is said to have submitted a

representation on 19.06.2019 to withdraw the prosecution. On

this basis, G.O.Ms.No.54 Agricultural and Cooperation (Vig-II)

Department dated 14.04.2020 had been issued by the

Government directing the Director General of A.C.B. to issue

necessary instructions to the Public Prosecutor to withdraw

the prosecution, against the 4th respondent. The petitioner

being aggrieved by the said G.O.Ms.No.54 dated 14.04.2020,

has approached this Court, by way of the present writ petition

contending that the Government having accorded permission

for prosecution of the 4th respondent cannot resile from that

decision and direct withdrawal of the case against the 4th

respondent.

5. The 4th respondent has filed a counter affidavit in

which it is stated that the Vigilance Commissioner, at the very

inception of the case, had issued a Memo dated 20.09.2016,

calling for departmental action under Rule 20 of the

A.P.C.S.(CC&A) Rules 1991 inspite of which the trial Court

passed an order dated 29.08.2016 insisting that the

prosecution should obtain sanction from the Government to

prosecute the 4th respondent and the same had been

challenged in W.P.No.3761 of 2017. Even while, the challenge

to the orders of the trial Court were pending, the Government

had issued G.O.Ms.No.9 Agricultural and Cooperation (VIG-II)

Department, dated 01.02.2017 granting sanction for

prosecution, contrary to the earlier Memo of 20.09.2016. The

4th respondent contends that the validity of G.O.Ms.No.9 dated

01.02.2017 has also been challenged by the 4th respondent in

W.P.No.4668 of 2017 and the same is still pending before this

Court. It is further stated that this Court had also granted

interim suspension of G.O.Ms.No.9, dated 01.02.2017 by

order dated 10.02.2017 in W.P.M.P.No.5661 of 2017.

6. Sri P.Gangaiah Naidu learned Senior Counsel,

appearing for the 4th respondent would submit that in view of

Memo bearing No.6719/Vig.II(2)/2014 dated 20.09.2016, the

Government ought not to have issued G.O.Ms.No.9 dated

01.02.2017 and that the Government had corrected this

mistake, by issuing G.O.Ms.No.54 Agricultural and

Cooperation (Vig-II) Department dated 14.04.2020 directing

the withdrawal of the prosecution of the 4th respondent. He

relies upon the Judgment of the Hon'ble Supreme Court in

Mansukhlal Vithaldas Chauhan vs. State of Gujarat1 to

contend that the Court while exercising a jurisdiction under

Article 226 of the Constitution should not replace the opinion

of the authority with the opinion of the Court and the scope of

(1997) 7 SCC 622: (1997) SCC (Cri) 1120

the writ petition would be restricted to examining whether the

decision has been taken in a proper manner or not. He further

relied on this judgment to contend that sanction for

prosecution granted, without application of mind, by the

sanctioning authority, even if it is in pursuance of a direction

of the Court, would have to be set aside unless it is shown

that the said order has been passed in an appropriate manner

after application of mind.

7. Sri P.Gangaiah Naidu, the learned Senior Counsel

would submit that the Memo dated 20.09.2016 very clearly set

out the lacuna in the case against the 4th respondent and the

said report clearly required prosecution to be dropped and

initiation of departmental action against the 4th respondent.

In the circumstances, the issuance of G.O.Ms.No.9 dated

01.02.2017 is a clear case of non application of mind and an

order passed due to pressure exerted by the trial Court. He

would further submit that this mistake had been corrected by

G.O.Ms.No.54 dated 14.04.2020 and as such, the said order

does not require interference.

8. Sri P.R.K.Amarendra Kumar, learned counsel for

the petitioner would submit that the Government did not have

the authority to review G.O.Ms.No.9 dated 01.02.2017 or

withdraw from prosecution after grant of sanction. He relies

upon a judgment of the erstwhile High Court of Andhra

Pradesh in the case of M.Veeraiah Chowdary vs. The State

of A.P and Ors.,2 and an unreported judgment of a learned

2003(1) ALD Cri 421:2003 CriLJ 1896

Single Judge of the erstwhile High Court of Judicature at

Hyderabad for the State of Telangana and the State of Andhra

Pradesh dated 05.02.2015 in the case of Simon vs. The State

of A.P. (Criminal Revision Case No.452 of 2008) to contend

that the State does not have the power to withdraw from the

prosecution after sanction of prosecution had been given.

9. The case of the petitioner is that once sanction of

prosecution had been granted, by way of G.O.Ms.No.9 dated

01.02.2017, the State did not have any power to review or

withdraw the said G.O by way of another G.O. Consequently,

G.O.Ms.No.54 dated 14.04.2020 is without authority of law

and in violation of the decision of the erstwhile High Court of

Judicature at Hyderabad for the State of Telangana and the

State of Andhra Pradesh.

10. On the other hand, the contention of the 4th

respondent is that the first decision taken in the matter was

the opinion by the Vigilance Commissioner, by way of a Memo

dated 20.09.2016 holding that the prosecution of the 4th

respondent under the provisions of the Prevention of

Corruption Act would fail on account of the Pre-ponderance of

evidence and it would be more appropriate to initiate

departmental action against the 4th respondent. This initial

opinion could not have been changed, on account of pressure

exerted by the trial Court and consequently, G.O.Ms.No.9

dated 01.02.2017 itself is bad. The correction of this error by

issuing G.O.Ms.No.54 dated 14.04.2020 cannot be faulted.

11. A learned Single Judge of the erstwhile High Court

of Andhra Pradesh in M.Veeraiah Chowdary vs. The State of

A.P and Ors., while considering a similar case had held that

once sanction of prosecution had been granted, the

Government would not have power or jurisdiction to issue

orders withdrawing permission accorded under Section 19(1)

of the Prevention of the Corruption Act. The learned Single

Judge also took the view that the authority to decide whether

the prosecution should withdraw from the case would vest

with the public prosecutor and as such, the Government

cannot take any such decision. This Judgment was followed

by another learned Single Judge of the erstwhile High Court of

Judicature at Hyderabad for the State of Telangana and the

State of Andhra Pradesh in similar circumstance. The learned

Judge, following the earlier decision cited above, had taken the

view that once a sanction is accorded to prosecute a public

servant, the same cannot be withdrawn by exercising powers

under either Section 19 of the Prevention of Corruption Act or

under Section 21 of the Andhra Pradesh General Clauses Act

or Section 15 of the Andhra Pradesh General Clauses Act. In

view of the authoritative pronouncements of the two learned

Single Judges, this Court is bound by this proposition of law

and must accordingly hold that G.O.Ms.No.54 dated

14.04.2020 would have to fail and the writ petition would have

to be allowed accordingly.

12. Before parting with the case, this Court would also

place on record that this Judgment is on the basis of the

Judgments of the two learned Single Judges and the issues

raised by the 4th respondent in W.P.Nos.4668 of 2017 and

W.P.No.3761 of 2017 are not being considered by this Court

and it would be open to the 4th respondent to raise and press

the issues raised by him in the above two writ petitions

without reference to this case.

13. Accordingly, this writ petition is allowed. There

shall be no order as to costs.

[

Miscellaneous petitions, pending if any, shall stand

closed.

___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 14.09.2022 RJS

THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

WRIT PETITION No.6018 of 2021

Date : 14.09.2022

RJS