Sri B Shivashankar vs The State By Karnataka Lokayuktha ...
2022 Latest Caselaw 2612 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 17TH DAY OF FEBRUARY, 2022

                          BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

           WRIT PETITION No.43262 OF 2017 (GM-RES)


BETWEEN:

SRI B.SHIVASHANKAR
S/O T.K.BASAVARAJU
AGED ABOUT 57 YEARS
PERMANENTLY RESIDING AT NO.200
4TH CROSS, 1ST STAGE
GANGOTHRI LAYOUT
MYSURU - 570 009.
                                               ... PETITIONER
(BY SRI M.S.BHAGWAT, ADVOCATE (VIDEO
    CONFERENCING))

AND:

THE STATE BY KARNATAKA
LOKAYUKTHA POLICE
REPRESENTED BY ITS
DEPUTY SUPERINTENDENT OF POLICE
BENGALURU CITY DIVISION
BENGALURU - 560 001.
                                             ... RESPONDENT

(BY SRI VENKATESH S.ARABATTI, SPL.PP, ADVOCATE
    (PHYSICAL HEARING))

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE
OF CRIMINAL PROCEURE, 1973 PRAYING TO CALL FOR RECORDS
                                2



IN SPECIAL C.C.NO.28/2012 PENDING ON THE FILE OF THE XXIII
ADDITINAL CITY CIVIL AND SPECIAL JUDGE FOR PREVENTION OF
CORRUPTION     ACT,   BENGALURU    [CCH-24]; QUASH    ALL
PROCEEDINGS IN SPECIAL C.C.NO.28/2012 PENDING ON THE FILE
OF THE XXIII ADDITIONAL CITY CIVIL AND SPECIAL JUDGE FOR
PREVENSTION OF CORRUPTION ACT, BANGALORE [CCH-24]
[ANNEXURE-A] INCLUDING THE CHARGE SHEET DTD:03.01.2012
[ANNEXURE-B] AND ORDER DTD:31.07.2017 [ANNEXUER-Q].


     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE
THE FOLLOWING :-


                             ORDER

The petitioner is before this Court calling in question the

proceedings in Special C.C.No.28 of 2012 pending before the

XXIII Additional City Civil and Special Judge for Prevention of

Corruption Act at Bangalore.

2. Brief facts leading to the filing of the present petition, as

borne out from the pleadings, are as follows:-

The petitioner was appointed as Assistant Executive

Engineer in the Department of Public Works, Government of

Karnataka, by way of direct recruitment in the year 1991 and at

the relevant point of time, was working as Chief Engineer and

was posted to work as Engineer Member and Chief Engineer of

the Bangalore Development Authority, Bangalore in the year

2008. On 06-11-2008 at 10.15 a.m. the Lokayukta Police,

received an information that the petitioner was to receive huge

bribe in the official guest house at R.M.V.Extension, Bangalore

and accordingly, conducted a search at 3.35 p.m. which resulted

in an allegation that Rs.20/- lakhs was recovered in the said

Guest House. Based upon the said incident, police registered a

FIR at about 7.40 p.m. for offences punishable under Sections 7,

13(1)(d) read with Section 13(2) of the Prevention of Corruption

Act, 1988 ('the Act' for short). Simultaneously, search was

conducted at the residential house of the petitioner in

accordance with the procedure. Search was further conducted in

all the properties belonging to the petitioner and his wife.

3. The Police based upon the aforesaid search conducted,

drew up three seizure mahazars. The Investigating Officer was

the Deputy Superintendent of Police, Karnataka Lokayukta. It

was declared that the petitioner was in possession of income

disproportionate to his known sources to the tune of 216%. The

police in the aforesaid case filed a charge sheet in Special

C.C.No.197 of 2010 against the petitioner for offences

punishable under Sections 7, 13(1)(d) of the Act. A second

charge sheet was also filed by the police alleging that the

petitioner now possesses disproportionate assets to the tune of

305.33%. The offence alleged there was punishable under

Section 13(1)(e) read with Section 13(2) of the Act. The charge

sheet results in Special C.C.No.28 of 2012. Therefore, the case

at hand revolves around two charge sheets one filed in Special

C.C.No.197 of 2010 alleging offences punishable under Sections

7, 13(1)(d) of the Act and the other charge sheet in Special

C.C.No.28 of 2012 for offences punishable under Section 13(1)(e)

read with Section 13(2) of the Act.

4. On filing of the charge sheet, the petitioner approached

this Court in Criminal Petition No.2111 of 2013. This Court by

its order dated 02-12-2013 directed the petitioner to file a

discharge application under Section 227 of the Code of Criminal

Procedure. Therefore, the petitioner withdrew the criminal

petition with liberty to file discharge application in Special

C.C.No.28 of 2012. Exercising the liberty granted by this Court,

the petitioner files discharge application in Special C.C.No.28 of

2012. The Court hearing discharge application rejects the said

application by order dated 31-07-2017 this has driven the

petitioner to this Court.

5. The impugned order of rejection of discharge application

concerns the proceedings in Special C.C.No.28 of 2012. Insofar

as Special C.C.No.197 of 2010, the petitioner had approached

this Court in Criminal Petition No.2112 of 2013 seeking to

quash the proceedings in Special C.C.No.197 of 2010. This

Court by an order dated 13-08-2013 allowed the criminal

petition and quashed the proceedings in Special C.C.No.197 of

2010 following the earlier judgment of this Court in the case of

L.SHANKARA MURTHY AND OTHERS v. STATE BY

LOKAYUKTA POLICE reported in 2012 (5) KAR.L.J. 545. As

stated hereinabove, Special C.C.No.197 of 2010 concerns offence

punishable under Section 13(1)(d) of the Act. That is quashed by

this Court by the aforesaid order. The discharge application was

filed by the petitioner on the ground that the offence punishable

under Section 13(1)(d) of the Act having been quashed, the

present offence under Section 13(1)(e) would be rendered

unsustainable. The Court hearing the petition did not accede to

it on the ground that there were independent material available

for prosecuting the petitioner for the offence punishable under

Section 13(1)(e) of the Act. It is that order that is called in

question in the present petition.

6. Heard Sri.M.S.Bhagwat, learned counsel appearing for

the petitioner and Sri.Venkatesh.S.Arabatti, learned Special

Public Prosecutor appearing for the respondent.

7. The learned counsel appearing for the petitioner

Sri.M.S.Bhagwat would contend that the proceedings arising out

of the offence punishable under Section 13(1)(d) of the Act

having been quashed by this Court, the same material cannot be

used for offence punishable under Section 13(1)(e) of the Act.

This action has vitiated the proceedings. Above all, the primary

contention of the learned counsel is that there is no sanction

accorded by the Competent Authority. Petitioner is in the cadre

of a Chief Engineer and for the cadre of Chief Engineer, the

learned counsel would submit, the Competent Authority to

accord sanction is the Cabinet and the file was never placed

before the Cabinet is an undisputed position and this would

vitiate the entire proceedings is the emphatic submission of the

learned counsel appearing for petitioner.

8. On the other hand, the learned Special Public

Prosecutor appearing for the respondent/Karnataka Lokayukta

would submit that the material that was investigated for offence

punishable under Section 13(1)(d) of the Act was not the only

material relied on by the prosecution, it was only inter alia and

there is independent material to proceed against the petitioner

under Section 13(1)(e) of the Act and therefore, this is not a

stage at which this Court should interfere in these proceedings.

Insofar as it pertains to grant of sanction by an incompetent

Authority, the learned counsel would submit that the plea of

sanction can be taken up at any point and can be considered by

the Court while passing the final order as well and would place

reliance on the latest order passed by the Apex Court in the case

of MAJOR M.C.ASHISH CHINAPPA v. CENTRAL BUREAU OF

INVESTIGATION in SLP(Crl).2576/2019.

9. I have given my anxious consideration to the

submissions made by the respective learned counsel and have

perused the material on record. In furtherance whereof, the

following points arise for my consideration:

(i) Whether sanction accorded by the incompetent

Authority would vitiate the entire proceedings?

(ii) Whether material collected during the

investigation for offence punishable under Section 13(1)(d)

of the Act could have been used in the peculiar facts of this

case for offences punishable under Section 13(1)(e) of the

Act?

10. I now deem it appropriate to consider the aforesaid

points in their seriatim.

Point No.(i):

11. The petitioner is in the cadre of Chief Engineer. The

State Government is the Competent Authority to remove the

petitioner from service. Therefore, the State Government

becomes the Competent Authority to grant sanction as

contemplated under Section 19 of the Act. Section 19 of the Act

reads as follows:

"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 save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014) --

(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.

(2) 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 (2 of 1974),--

(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 or 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 interlocutory

order passed in any 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 instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."

(Emphasis supplied)

Section 19 mandates that no Court shall take cognizance of

offence punishable under Sections 7, 10, 11, 13 and 15 unless

sanction is accorded by the Competent Authority which is

empowered to remove from office. Therefore, in terms of Section

19(1)(b) of the Act to prosecute the petitioner sanction has to be

accorded by the State Government.

12. In terms of Article 162 of the Constitution of India, the

orders and other instruments made and executed in the name of

the Governor shall be authenticated in a manner specified under

the Karnataka Government (Transaction of Business) Rules,

1977 ('the Transaction of Business Rules' for short). Therefore,

the consideration of Transaction of Business Rules in the case at

hand becomes imperative. Rule 12 of the Transaction of

Business Rules reads as follows:-

"12. There shall be a Committee of the Council of Ministers to be called the Cabinet which shall consist of the Cabinet Ministers except when the Council of Ministers meets on any occasion, all matters referred to in the First Schedule shall ordinarily be considered at a meeting of the Cabinet:-

Provided that ,-

(i) When at a meeting of the Cabinet a subject with which any Minister of State not attached to a Cabinet Minister is considered the said Minister of State shall be entitled to attend the meeting at the time at which such subject is discussed and take part in the discussions; and

(ii) a Minister of State not attached to a Cabinet Minister shall be entitled to attend a meeting of the Cabinet at any time and take part in the discussions on

any subject when requested to do so by the Chief Minister.

Provided further that a Minister of State attached to a Cabinet Minister or a Deputy Minister may attend a meeting of the Cabinet when requested to do so by the Chief Minister, either when a subject with which he is concerned is under discussion or otherwise."

In terms of Rule 12, the Authority competent to accord sanction

to the cadre of the petitioner is the Government through its

Cabinet. The purport of Rule 19 is also the same. Therefore, in

the light of the aforesaid provisions, it is germane to notice

whether sanction that is accorded in the case at hand is by the

Competent Authority.

13. It is an admitted fact that sanction has not been

accorded by the Cabinet. The file with regard to sanction for

prosecution of the petitioner was admittedly not placed before

the Cabinet. Therefore, the violation is at the threshold where

sanction is not accorded by the Competent Authority.

14. Following of Transaction of Business Rules is held to

be of paramount importance by the Apex Court in the case of

MRF LIMITED v. MANOHAR PARRIKAR AND OTHERS1 wherein

the Apex Court holds as follows:--

"92. As observed by us earlier, these observations apply equally to the case on hand and in light of this view, we have no difficulty in holding that the Business Rules framed under the provisions of Article 166(3) of the Constitution are mandatory and must be strictly adhered to. Any decision by the Government in breach of these Rules will be a nullity in the eye of the law. It is in this legal background that the issues raised before us have to be dealt with."

Earlier to the said judgment the Apex Court in the case of

COMMON CAUSE v. UNION OF INDIA AND OTHERS2 while

considering the matter of placing the file before the Cabinet has

held as follows:

"18. The executive power of the Union is vested in the President under Article 53 of the Constitution. The extent of the executive power is indicated in Article 73. The next article, namely, Article 74 provides for a Council of Ministers to aid and advise the President.

Article 75(3) speaks of the collective responsibility of the Cabinet which provides that the Cabinet shall be responsible to Parliament. Article 77 provides for the conduct of business of the Government of India and

(2010)11 SCC 374

(1999)6 SCC 667

clause (3) thereof empowers the President to make rules for the convenient transaction of its business and for allocation amongst Ministers of the said business. It is in exercise of this power that rules for allocation of business have been framed under which various divisions of work to different Ministries have been indicated. Distribution of petroleum products, including petroleum outlets, is also one of the subjects which has been allocated to the Ministry of Petroleum.

19. The functions of the Government are carried out in the name of the President by Ministers appointed by him on the advice of the Prime Minister. The Executive consists of:

(a) Prime Minister and Ministers who are members of the Cabinet;

(b) Ministers who are not of Cabinet rank;

(c) The Civil Service.

20. Since the functions of the Government are carried on by the Executive in the name of the President on the advice of Ministers, they (Ministers) alone are answerable to Parliament. The Civil Service as such has no constitutional personality or responsibility separate from the duly-constituted Government.

21. Articles 77(1) and (2) provide that whatever executive action is taken by the Government of India, the same shall be expressed to have been taken in the name of the President.

22. Executive power is not defined in the Constitution. Article 73 relating to the Union of India and Article 163 relating to the State deal primarily with the extent of executive power. In Rai Sahib Ram Jawaya Kapur v. State of Punjab [AIR 1955 SC 549 :

(1955) 2 SCR 225] the then Chief Justice Mukherjea pointed out:

"It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away."

23. This judgment also deals with the concept of Cabinet, the Council of Ministers, its collective responsibility and how the Executive functions subject to the control of the legislature. It is laid down that although the President is the head of the Executive, he acts on the aid and advice of the Council of Ministers, headed by the Prime Minister, who are all members of the legislature and since the President has to act upon the advice of the Council of Ministers, the legislature indirectly controls the functioning of the Executive. The relevant portions are extracted below:

"Our Constitution, though federal in its structure, is modelled on the British parliamentary system where the Executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State.

*** In India, as in England, the Executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature? Under Article 53(1) ..., the executive power of the Union is vested in the President but under Article 75 there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The President has thus been made a formal or constitutional head of the Executive and the real

executive powers are vested in the Ministers or the Cabinet.

The same provisions obtain in regard to the Government of States; the Governor ... occupies the position of the head of the Executive in the State but it is virtually the Council of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the Council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, 'a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part'.

The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them."

24. .... .... ....

25. It was also pointed out in this case that the words "business of the Government of India" and "the business of the Government of the State", as used in Articles 77(3) and 166(3), include "all executive business". Seervai in his treatise Constitutional Law of India, Silver Jubilee Edn., Fourth Edn., on p. 2037 has, after a critical analysis of the judgment, extracted the following principles on the "business of the Government of India and allocation of business among Ministers":

"(i) The expressions 'business of the Government of India' and 'the business of

the Government of the State' in Articles 77(3) and 166(3) include 'all executive business'.

(j) 'Where the Constitution required the satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor as the case may be ... the satisfaction required by the Constitution is not the personal satisfaction of the President or the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government. ... It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions....' Articles 77(3) and 166(3) provide that the President or the Governor shall make rules for the more convenient transaction of the business of Government and the allocation of functions among Ministers. Rules of business and the allocation of functions to Ministers indicate that the satisfaction of the Minister or the officer is the satisfaction of the President or the Governor.

(k) Rules of business and allocation of business among Ministers are relatable to Articles 53 and 154 which provide that executive power shall be exercised by the President and by the Governor either directly or through subordinate officers. The provisions made in Articles 74 and 163 for a Council of Ministers to aid and advise the President and the Governor 'are sources of the rules of business'.

(l) Where the functions entrusted to a Minister are performed by an officer

employed in the Minister's department, there is in law no delegation to that officer because the act or decision of the officer is that of the Minister: Halsbury, Vol. 1, 4th Edn., para 748."

26. In view of the discussion held above, it will be seen that though an order is issued in the name of the President, it does not become an order of the President passed by him personally, but remains, basically and essentially, the order of the Minister on whose advice the President had acted and passed that order. Moreover, as required by Article 77(1), all executive actions of the Government of India have to be expressed in the name of the President; but this would not make that order an order passed by the President personally. That being so, the order carries with it no immunity. Being essentially an order of the Government of India, passed in exercise of its executive functions, it would be amenable to judicial scrutiny and, therefore, can constitute a valid basis for exercise of power of judicial review by this Court. The authenticity, validity and correctness of such an order can be examined by this Court in spite of the order having been expressed in the name of the President. The immunity available to the President under Article 361 of the Constitution cannot be extended to the orders passed in the name of the President under Article 77(1) or Article 77(2) of the Constitution.

(Emphasis supplied)

Since the file was never placed before the Cabinet, the initiation

and the continuance of prosecution gets vitiated.

15. Insofar as the contention with regard to issue of

sanction and that it can be urged at any point in time in a

proceeding, as contended by the learned counsel for the

prosecution is again unacceptable in the light of the judgment

rendered by the Apex Court in the case of NANJAPPA v. STATE

OF KARNATAKA3 wherein the Apex Court has held as follows:

" 21. In B. Saha v. M.S. Kochar [(1979) 4 SCC 177 : 1979 SCC (Cri) 939] this Court was dealing with the need for a sanction under Section 197 CrPC and the stage at which the question regarding its validity could be raised. This Court held that the question of validity of an order of sanction under Section 197 CrPC could be raised and considered at any stage of proceedings. Reference may also be made to the decision of this Court in K. Kalimuthu v. State [(2005) 4 SCC 512 : 2005 SCC (Cri) 1291] where Pasayat, J. speaking for the Court, held that the question touching the need for a valid sanction under Section 197 CrPC need not be raised as soon as the complaint is lodged but can be agitated at any stage of the proceedings. The following observation in this connection is apposite: (SCC p. 521, para 15)

"15. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. Further, in cases where offences under the Act are concerned, the effect of Section 197, dealing with question of prejudice has also to be noted."

(2015)14 SCC 186

22. The legal position regarding the importance of sanction under Section 19 of the Prevention of Corruption Act is thus much too clear to admit equivocation. The statute forbids taking of cognizance by the court against a public servant except with the previous sanction of an authority competent to grant such sanction in terms of clauses (a), (b) and (c) to Section 19(1). The question regarding validity of such sanction can be raised at any stage of the proceedings. The competence of the court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid the court can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with law. If the trial court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution.

24. In the case at hand, the Special Court not only entertained the contention urged on behalf of the accused about the invalidity of the order of sanction but found that the authority issuing the said order was incompetent to grant sanction. The trial court held that the authority who had issued the sanction was not competent to do so, a fact which has not been disputed before the High Court or before us. The only error which the trial court, in our opinion, committed was that, having held the sanction to be invalid, it should have discharged the accused rather than recording an order of acquittal on the merit of the case. As observed by this Court in Baij Nath Prasad Tripathi case [Baij Nath Prasad Tripathi v. State of Bhopal, AIR 1957 SC 494 : 1957 Cri LJ 597] , the absence of a sanction order implied that the court was not competent to take cognizance or try the accused. Resultantly, the trial by an incompetent court was bound to be invalid and non est in law.

Later, the Apex Court following NANJAPPA (supra), in the case

of STATE OF MIZORAM v. C.SANGNGHINA4 has held as follows:

"12. In Nanjappa case [Nanjappa v. State of Karnataka, (2015) 14 SCC 186 : (2016) 2 SCC (Cri) 360] , after referring to a number of judgments, this Court summarised the principles in para 23 as under : (SCC pp. 199-200)

"23. Having said that there are two aspects which we must immediately advert to. The first relates to the effect of sub-section (3) to Section 19, which starts with a non obstante clause. Also relevant to the same aspect would be Section 465 CrPC which we have extracted earlier.

***

23.2. A careful reading of sub-section (3) to Section 19 would show that the same interdicts reversal or alteration of any finding, sentence or order passed by a Special Judge, on the ground that the sanction order suffers from an error, omission or irregularity, unless of course the court before whom such finding, sentence or order is challenged in appeal or revision is of the opinion that a failure of justice has occurred by reason of such error, omission or irregularity. Sub-section (3), in other words, simply forbids interference with an order passed by the Special Judge in appeal, confirmation or revisional proceedings on the ground that the sanction is bad save and except, in cases where the appellate or revisional court finds that failure of justice has occurred by such invalidity. What is noteworthy is that sub-section (3) has no application to proceedings before the Special Judge, who is free to pass an order discharging the accused, if he is of

(2019) 13 SCC 335

the opinion that a valid order sanctioning prosecution of the accused had not been produced as required under Section 19(1).

23.3. Sub-section (3), in our opinion, postulates a prohibition against a higher court reversing an order passed by the Special Judge on the ground of any defect, omission or irregularity in the order of sanction. It does not forbid a Special Judge from passing an order at whatever stage of the proceedings holding that the prosecution is not maintainable for want of a valid order sanctioning the same.

23.4. The language employed in sub-section (3) is, in our opinion, clear and unambiguous. This is, in our opinion, sufficiently evident even from the language employed in sub-section (4) according to which the appellate or the revisional court shall, while examining whether the error, omission or irregularity in the sanction had occasioned in any failure of justice, have regard to the fact whether the objection could and should have been raised at an early stage. Suffice it to say, that a conjoint reading of Sections 19(3) and (4) leaves no manner of doubt that the said provisions envisage a challenge to the validity of the order of sanction or the validity of the proceedings including finding, sentence or order passed by the Special Judge in appeal or revision before a higher court and not before the Special Judge trying the accused.

23.5. The rationale underlying the provision obviously is that if the trial has proceeded to conclusion and resulted in a finding or sentence, the same should not be lightly interfered with by the appellate or the revisional court simply because there was some omission, error or irregularity in the order sanctioning the prosecution under Section 19(1). Failure of justice is, what the appellate or

revisional court would in such cases look for. And while examining whether any such failure had indeed taken place, the court concerned would also keep in mind whether the objection touching the error, omission or irregularity in the sanction could or should have been raised at an earlier stage of the proceedings meaning thereby whether the same could and should have been raised at the trial stage instead of being urged in appeal or revision."

13. In light of the above principles, considering the case in hand, even before commencement of trial, the respondent-accused was discharged due to lack of proper sanction, there was no impediment for filing the fresh/supplementary charge-sheet after obtaining valid sanction. Unless there is failure of justice on account of error, omission or irregularity in grant of sanction for prosecution, the proceedings under the Act could not be vitiated. By filing fresh charge-sheet, no prejudice is caused to the respondent nor would it result in failure of justice to be barred under the principles of "double jeopardy".

... ... ...

15. The whole basis of Section 300(1) CrPC is that the person who was tried by a competent court, once acquitted or convicted, cannot be tried for the same offence. As discussed earlier, in the case in hand, the respondent- accused has not been tried nor was there a full-fledged trial. On the other hand, the order of discharge dated 12-9- 2013 passed by the Special Court was only due to invalidity attached to the prosecution. When the respondent-accused was so discharged due to lack of proper sanction, the principles of "double jeopardy" will not apply. There was no bar for filing fresh/supplementary charge-sheet after obtaining a valid sanction for prosecution. The Special Court once it found that there was no valid sanction, it should have directed the prosecution to do the needful. The Special Court has not given sufficient

opportunities to produce valid prosecution sanction from the competent authority. The Special Court erred in refusing to take cognizance of the case even after production of valid prosecution sanction obtained from the competent authority and the High Court was not right in affirming the order of the Special Court. The Special Court and the High Court were not right in holding that the filing of the fresh charge-sheet with proper sanction order for prosecution was barred under the principles of "double jeopardy".

16. In the light of the aforesaid judgments of the Apex

Court with regard to Competent Authority according sanction

and the ground of want of sanction by the Competent Authority

as urged by the petitioner deserves to the accepted. Therefore,

the subject point that arose for consideration is held in favour of

the petitioner.

Point No.(ii):

17. The second issue that falls for consideration is with

regard to using of material that was investigated and collected

for the offence punishable under Section 13(1)(d) of the Act, for

the offence punishable under Section 13(1)(e) of the Act is

concerned, it is necessary to notice both the provisions. Section

13 of the Act reads as follows:

"13. Criminal misconduct by a public servant.--(1) A public servant is said to commit the offence of criminal misconduct,--

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he,--

           (i)    by corrupt or illegal means, obtains for
                     himself or for any other person any
                     valuable     thing   or    pecuniary
                     advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for

any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 3 [four years] but which may extend to ten years and shall also be liable to fine."

(Emphasis supplied)

Section 13(1)(d) deals with a public servant committing offence

of criminal misconduct by corrupt or illegal means, obtains for

himself or any other person pecuniary advantage abusing his

position as a public service while holding office as such. Section

13(1)(e) deals with public servant committing an offence of

criminal misconduct if he or any person on his behalf is in

possession or has, at any time during the period of his office,

been in possession of wealth which he cannot satisfactorily

explain.

18. The proceedings initiated against the petitioner under

Section 13(1)(d) of the Act stood quashed by this Court in

Criminal Petition No.2112 of 2013 on 13-08-2013. This Court

disposed of the petition holding as follows:

"5. It is now well settled law by catena of decisions that the police officer can embark upon the investigation of the case only after registering an FIR as required by Section 154 of Cr.P.C. This Court in the case of L.Shankaramurthy and others v. State of Lokayukta Police, City Division, Bangalore Urban Division, Bangalore [2012 (5) Kar.L.J. 545] after referring to the principles laid down by the Apex Court in State of Haryana and others v. Ch.Bjajan Lal and others [AIR 1992 SC 604], and few other decisions of the Apex Court, as to the requirement of the registration of the case by the Officer in-charge of the Station House whenever an information was laid before him and then to proceed for investigation, has observed thus in Paragraphs 31 to 35:

"31. It is, therefore, clear from the aforesaid principle laid down by the Apex Court that in respect of a cognizable offence, the officer in

charge is duty bound to reduce the information received by him to writing and then has to register the case thereafter can proceed with the investigation and he has no other option open to him. Therefore, the police officer in charge is duty bound to comply with the mandatory requirement of Section 154 of the Cr.P.C.

32. In the cases of the present petitioners, there has been no such compliance of the mandatory provision of law as contained in Section 154 of the Cr.P.C. and the seizure panchanama cannot take the place of complaint or information. Thus, it is clear that the procedure followed by the Police Officer concerned is contrary to the mandatory provisions as contained in Section 154 of the Cr.P.C.

33. The scheme of the Cr.P.C. also makes it clear that, Section 157 of the Cr.P.C. gives power to the Police Officer to take up investigation only after sending a report to the Magistrate, and power to take cognizance of such offence where the officer concerned, from the information received or otherwise, has reason to suspect the commission of an offence which he is empowered to investigate under Section 156 of the Cr.P.C., he shall follow the requirement of Section 157 before embarking upon the investigation. It is, therefore, clear from the aforesaid provisions of the Cr.P.C. that the police officer concerned cannot proceed with the investigation without first registering the case upon the information received by him.

34. This court, in the case of Mahadevappa v. Karnataka Lokayuktha reported in ILR 2009 KAR 947 has also taken the view that the Lokayuktha Police have got suo motu power to initiate proceedings, but in view of Section 157 of the Cr.P.C., the Police Officer can press the law

into motion not only on the basis of the information received by him but also otherwise.

35. In the light of the aforesaid position in the law laid down by the Apex Court in particular in the aforementioned cases, the entire proceeding leading to conducting the seizure panchanama even without registering the cases as required under Section 154 of the Cr.P.C. is illegal, contrary to law and is in violation of the mandatory provisions of the Cr.P.C. and the act on the part of the police officer concerned is nothing but an act which could be termed as abuse of the process of law".

6. The principles laid down in the aforesaid decision clearly applies to the facts of this case, since the search and seizure were conducted without registering FIR as required under Section 154 of Cr.P.C. and based on the alleged search and seizure, subsequently, the FIR has been registered. In this view of the matter, the FIR registered by the Respondent-Police is illegal and contrary to law, as such it is liable to be quashed.

7. As noticed supra, subsequent to the registration of the case, on completion of the investigation, the I.O. has filed the charge sheet. In view of the fact that the very registration of the case was illegal and contrary to law, investigation culminating in filing the charge sheet is also vitiated. Therefore, the charge sheet filed against the petitioner for the aforesaid offences on the basis of the FIR registered on the basis of the search and seizure conducted is liable to be quashed. In view of the above, petition is allowed. The prosecution launched against the petitioner in Special C.C.No.197 of 2010 on the file of XXIII Additional City Civil and Sessions

Judge and Special Judge, Bangalore Urban District is hereby quashed."

(Emphasis supplied)

This along with all other cases was taken up in challenge before

the Apex Court in S.L.P.No.3508 of 2013 which came to be

dismissed. On dismissal of the S.L.P. the other petition where

the petitioner had filed Criminal Petition No.2111 of 2013 was

withdrawn with liberty to file a discharge application before the

Special Judge. Therefore, the material collected during the

investigation was for the offence punishable under Section

13(1)(d) of the Act. That having been quashed by this Court on

the ground that search and seizure were conducted without

registering FIR as required under Section 154 of the Cr.P.C. the

entire proceedings were held to be vitiated. Therefore, the

investigation conducted for the offence punishable under Section

13(1)(d) of the Act stood obliterated.

19. The petitioner who had sought liberty to file an

application for discharge in the proceedings under Special

C.C.No.28 of 2012 which were concerning offence under Section

13(1)(e) of the Act is rejected by the Special Judge hearing the

discharge application. The reason assigned by the trial Judge is

that Public Prosecutor made an assertion before the trial Judge

that the trap case registered against the accused was quashed

by this Court in the aforesaid criminal petition and the Hon'ble

Supreme Court has also affirmed the said judgment of this

Court. But, before passing the orders by this Court, the

Investigating Officer had obtained permission of this Court for

utilizing the mahazar that was taken in a case pertaining to

Section 13(1)(d) of the Act to the proceedings under Section

13(1)(e) of the Act. The said raid case was not registered on the

basis of the mahazar of the trap conducted in Special C.C.No.28

of 2012. Therefore, the submission that the material collected

was permitted to be used by the trial Court is unsustainable and

an erroneous permission; same unsustainability goes with the

submission of the learned counsel for the prosecution.

Therefore, the second issue that fell for my consideration is also

answered in favour of the petitioner.

20. In the light of the preceding analysis and the

judgments of the Apex Court on the issue of sanction not being

accorded by the Competent Authority and the act of the

prosecution in initiating proceedings under Section 13(1)(e) of

the Act being contrary to law, the petition deserves to succeed.

21. For the aforesaid reasons, the following:

ORDER

(i) Writ Petition is allowed.

(ii) The impugned proceedings in Special C.C.No.28/2012 stand quashed.

In view of disposal of the Writ Petition, I.A.No.1/2018 also

stands disposed.

Sd/-

JUDGE bkp CT:MJ