Muvva Ramalingam, vs The Director General,
2023 Latest Caselaw 641 AP

            HONOURABLE SRI JUSTICE M. GANGA RAO

                      Review I.A.No.1 of 2020
                                 in
                       W.P.No.46248 of 2016
                      (Order dated 25.10.2019)

ORDER:

1. The petitioner filed this Interlocutory Application under Order 47

Rule 1 of C.P.C. seeking review of the order dated 25.10.2019 passed in

W.P.No.46248 of 2016, wherein and whereby this Court dismissed the

writ petition filed by the petitioner seeking a writ of mandamus

declaring G.O.Ms.No.9, Education [(SE:Vig.I(1)] Department, dated

16.04.2014 issued by the 3rd respondent i.e., the State of Andhra

Pradesh represented by its Principal Secretary, Education Department

sanctioning prosecution of the petitioner by exercising power conferred

by Clause (b) of sub-section (1) of Section 19 of the Prevention of

Corruption Act, 1988 (for short „the Act‟) for the offence punishable

under Sections 7 & 13 (2) read with Section 13 (1)(d) of the Act and for

any other cognate offence under the provisions of law for the time being

in force.

2. The brief facts of the case are that when the petitioner was

working as a District Educational Officer in Guntur District during the

year 2007, one Mr. Chandra Sekhar Reddy, the Correspondent of

Aravinda High School, Kunchavapalli Village made a complaint to the

Anti Corruption Bureau against the petitioner stating that he demanded

Rs. 50,000/-(Rupees fifty thousand) for forwarding supplementary

Nominal Rolls of one candidate and for doing official favour to process

and to recommend for the up-gradation of VI to X Class. Pursuant there

to, Crime No. 12/TCT-ACB-VJA/2007 was registered against the

petitioner under Section 7 of the Act by the ACB. Thereafter, the 2nd

respondent ACB officials laid a trap successfully on 13.11.2007. The

2nd respondent moved the Government for sanction for prosecution of

the petitioner for the offence under Section 7 & 13 (2) read with Section

13(1)(d) of the Act. The Government ordered the District Secretary to

submit a Final report on 12.01.2009. The Government vide Memo No.

18195/SE-Vig.1(1)/2007-7, dated 25.03.2011, after carefully

considering the totality of the facts and circumstances, decided that

initiation of departmental enquiry is sufficient to probe the matter in

detail instead of prosecution in a Court of law and also passed orders

on 28.05.2011. Thereafter, on 25.08.2011 the 2nd respondent had

furnished Articles of charges in respect of trap case. The request of the

2nd respondent for sanction of prosecution of petitioner under Section

19 was not accorded by the Government in various proceedings:

1. Rc.No.219/RCT-VGT/2007-S.17, dated 28.09.2010;

2. Rc.No.219/RCT-VGT/2007-S.17, dated 29.09.2010;

3. Rc.No.219/RCT-VGT/2007-S.17, dated __.12.2010;

4. Rc.No.219/RCT-VGT/2007-S.17, dated 28.01.2011;

5. Rc.No.219/RCT-VGT/2007-S.17, dated 07.05.2011; and

6. Rc.No.219/RCT-VGT/2007-S.17, dated 18.06.2011.

Instead of prosecution, the Government preferred the

departmental enquiry. The 2nd respondent‟s request for closure of the

case before the Special Court was dismissed in RCs.No.2 of 2012. On

persuasion of the 2nd respondent, the Government issued impugned

G.O.Ms.No.9, dated 16.04.2014 granting sanction for prosecution of the

petitioner under Section 19 of the Act, the same was modified on some

technical defects and issued another G.O.Ms.No.14, dated 06.05.2014,

according sanction to prosecute the petitioner for the offence under

Section 7 & 13 (2) read with Section 13(1)(d) of the Act for taking

cognizance of the said offence by the Court of competent jurisdiction.

Thereafter, the charge sheet was filed on 05.06.2014. The Special

Judge for SPE and ACB Cases, Vijayawada had taken the case on file

and numbered the same as C.C.No.11 of 2014. Thereafter, the

petitioner filed Crl.P.No.5459 of 2014 for quashing the G.O.Ms.No.9,

dated 16.04.2014 under Section 482 of Code of Criminal Procedure. The

same was disposed of giving liberty to the petitioner to move appropriate

petition in view of filing of the charge sheet and taking cognizance of the

same by the Court. Hence, filed this writ petition to issue a writ of

mandamus declaring the impugned G.O.Ms.No.9, dated 16.04.2014

issued by the 3rd respondent as illegal and consequently set aside the

same on the ground that the Government has no authority to review its

earlier orders and to grant sanction for prosecution through

G.O.Ms.Nos.9 and 14 issued on 16.04.2014 and 06.05.2014

respectively.

3. The grounds which led to filing of the present review application

are as under:-

(i) The first ground is that the Memo No.18195/SE-Vig.I(1)/

2007-7, dated 25.03.2011 was issued only after considering the

facts and circumstances of the case and instead of prosecuting

the case in the court of law, the Government had decided to

conduct Departmental Enquiry, which was within the powers of

the Government.

(ii) The second ground is that the Anti Corruption Bureau

requested for closure of the case, which was filed only upon

refusal by the Government for prosecuting the accused and

therefore, the Court below had no jurisdiction to direct the

Government to prosecute the petitioner‟s case in the Court.

(iii) The third ground is that the agency requested for

reconsideration of the decision taken earlier i.e., on 28.09.2010,

29.09.2010, 12.10.2010 and 28.01.2011, after considering the

final report of the agency which was refused by the Government

and reiterated its earlier order. The Agency subsequently filed

R.C.S.No.2/2013 for closure of case as required sanction was not

granted. Therefore, the Court below should have closed the case

and ought not to have given further directions.

(iv) The fourth ground is that later to the orders dated

25.09.2013 of Special Judge for SPE & ACB Cases at Vijayawada,

a request was made for sanction afresh and for decision without

jurisdiction. Any decision by incompetent authority is

unauthorized and illegal and non est.

(v) The fifth ground is that the ACB‟s proposals were

examined and reasons were recorded for not granting sanction for

prosecution as per the instructions and the same could not have

been reviewed and the order dated 25.10.2019 is non est in law,

which the Hon‟ble Court ought to have considered.

(vi) The last ground is that the law laid down in The State of

Himachal Pradesh Vs. Nishant Sareen [(2010) 14 SCC 527],

wherein it was held by the Hon‟ble Apex Court that the

Government can only exercise power of review once that too on

fresh materials and cannot review the power of sanction

otherwise. If the Agency had legitimate grievance about order

refusing sanction when the Government proposed departmental

action, the investigation agency did not challenge the orders dated

28.09.2010, 29.09.2010, 12.10.2010, 28.01.2011, 25.03.2011,

07.05.2011 and 18.06.2011, and therefore, they now cannot ask

to review the earlier order. The reasoning of the Court in

dismissing the Writ Petition No.46248 of 2016 is contrary to law

laid down by the Hon‟ble Apex Court and needs to be reviewed in

view of law laid down in a case of State of Punjab and another

Vs. Mohammed Iqbal Bhatti [(2009) 17 SCC 92] and in State

of Himachal Pradesh Vs. Nishant Sareen [2010 (14) SCC

527].

4. Heard Sri W.B.Srinivas, Senior Counsel appearing for Sri

P. Srinivasulu, advocate on record for the petitioner, Ms. A. Gayathri

Reddy, learned counsel for the respondents 1 and 2 and the learned

Government Pleader for Education.

5. Sri W.B. Srinivasulu, learned Senior Counsel, while reiterating

the grounds of review petition, would contend that the 3rd respondent

Government while initiating departmental enquiry through

G.O.Rt.No.517, dated 04.09.2010, dropped the prosecution on

25.03.2011. Hence, the prosecuting agency filed RCs.No.2/2013 for

closure of the case as the sanction order was not issued by the

competent authority. The special Court for SPE & ACB cases dismissed

the said petition on 25.09.2013 and directed the agency to make a

request to the competent authority and also suggested the competent

authority to examine the ACB‟s request for sanction afresh and take a

decision based on the material by the agency. Accordingly, the 3rd

respondent-Government issued impugned G.O.Ms.No.9, dated

16.04.2014 granting sanction of prosecution and trial, but as there

were some technical defects in the said G.O., the authority issued

G.O.Ms.No.14, dated 05.05.2014 and a charge sheet was also filed in

the case and the same was numbered as C.C.No.11 of 2014 by the

Special Court. The 3rd respondent - Sanctioning Authority, without

application of mind in issuing the impugned sanction order by

reviewing the earlier order for which the sanction authority has no

power under the provisions of Section 19 of the Act, without there being

any fresh material placed by the prosecution agency for sanction, is

illegal. In support of his contentions, he placed reliance on the

judgment of Hon‟ble Supreme Court in the case of State of Himachal

Pradesh Vs. Nishant Sareen [2010 (14) SCC 527] and State of

Punjab and another Vs. Mohammed Iqbal Bhatti [(2009) 17 SCC

92].

6. The sanction is barred by limitation, according to the provisions

of the Section 19 of the Act, the sanction is required to be granted

within 60 days from the date of registering the crime, hence the

sanction of prosecution by impugned order is bad in law, it could not be

construed as a valid sanction. The said ground is not specifically

pleaded and argued. He has taken this Court to the various orders

passed by the 3rd respondent in refusing to sanction prosecution and

record available before this Court and said order cannot be equated to

that of the order passed under Section 19 of the Act. In the absence of

any material, sanction of prosecution under Section 19 of the Act is

illegal. This Court, without considering the said aspects of the case,

dismissed the writ petition and hence, the same is liable to be set aside

by allowing the review application.

7. Learned Government Pleader for Education has taken this Court

through the provisions of Section 114 and Order 47 Rule 1 of C.P.C.

and states that there is no error apparent on the face of the record to

review the order passed by this Court. The review petition is devoid of

any merits and is liable to be dismissed.

8. It is profitable to extract the provisions of Section 114 and Order

47 Rule 1 of C.P.C., which reads as follows:-

"114. Review

Subject as aforesaid, any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a court of small causes, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit."

"ORDER XLVII - REVIEW

Application for review of judgment

(1) Any person considering himself aggrieved,

(a) by a decree or order from which an appeal is allowed, but from which appeal has been preferred.

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made

against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

[Explanation The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.]"

9. The review petition can be allowed in a few circumstances as

enumerated under the provisions stated above. In the review

application, no circumstances as envisaged under the provisions of

Order 47 Rule 1 of C.P.C. are brought to the notice of this Court except

contending that the 3rd respondent - Sanctioning Authority has no

power to review the earlier orders passed, rejecting the prosecution

without there being any fresh material to review and pass impugned

sanction orders and that sanction is passed beyond the limitation

period. This Court, having considered all the aspects elaborately,

adverting to the said contentions and placing reliance on the judgments

of this Court in the case of K.Rama Krishna Raju Vs. Government of

Andhra Pradesh and others [2011 CJ (AP) 643] and K. Srinivasulu

S/o Sri K. Subba Reddy Vs. Government of Andhra Pradesh [2010

CJ (AP) 550], passed the judgment under review. Hence, this Court felt

that there is no error apparent on the face of the record to exercise

power of review by Order 47 Rule 1 of C.P.C. Therefore, the contention

of the review petitioner is hereby rejected.

10. It is well settled that the review proceedings are not by way of an

appeal and have to be strictly confined to the scope and ambit of Order

47 Rule 1 of C.P.C. The Hon‟ble Supreme Court, in the case of Meera

Bhanja Vs. Nirmala Kumari Choudhury, dated 16.11.1994 [1994

LawSuit (SC) 1039], held thus:

"It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 of C.P.C. In connection with the limitation of the powers of the Court under Order 47, Rule 1 of C.P.C., while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047, speaking through Chinnappa Reddy, J. has made the following pertinent observations (para 3):

"It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of Plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error

apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."

"Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably the two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137, wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:

"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ.""

11. The grounds raised in the review application are good grounds for

the appeal but not grounds for review under Order 41 Rule 1 read with

Section 114 of C.P.C. In view of the above discussion, this Court finds

that the review application is devoid of any merits and is liable to be

dismissed.

12. Accordingly, the review I.A.No.1 of 2020 in W.P.No.46248 of 2016

is dismissed. There shall be no order as to costs.

Consequently, miscellaneous petitions pending, if any, shall also

stand closed.

_________________________ JUSTICE M. GANGA RAO

Date : 07-02-2023 GSP

HONOURABLE SRI JUSTICE M. GANGA RAO

REVIEW I.A.No.1 of 2020 IN WRIT PETITION No.46248 of 2016

07-02-2023

GSP