Karnataka High Court

Dr Anitha R vs The State Of Karnataka on 18 May, 2023

Bench: K.Natarajan

                             1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE   18TH DAY OF MAY, 2023

                            BEFORE

           THE HON'BLE MR. JUSTICE K.NATARAJAN

         WRIT PETITION NO.16978 OF 2022 (GM-RES)
                           C/W
         WRIT PETITION NO.1142 OF 2022 (GM-RES),
         WRIT PETITION NO.3171 OF 2022 (GM-RES)

IN WRIT PETITION NO.16978 OF 2022

BETWEEN

GAJARAJA
S/O SIDDAPPA MAKANUR
WORKING AS POLICE INSPECTOR,
KARNATAKA STATE INDUSTRIAL SECURITY FORCE (KSISF)
R/O NO. 703, 7th FLOOR,
A-3 BLOCK, SHARAVATHI,
NGV, KORAMANGALA
BENGALURU - 560 047                  ... PETITIONER

(BY SRI HIREMATH AKKAMAHADEVI, ADVOCATE)

AND

1.    STATE OF KARNATAKA
      REP. BY CHIEF SECRETARY,
      VIDHANA SOUDHA,
      DR. B.R. AMBEDKAR VEEDHI,
      BENGALURU - 560 001

2.    ADDITIONAL DIRECTOR GENERAL POLICE
      ANTI CORRUPTION BUREAU (ACB)
      NO.49, KHANIJA BHAVAN,
      RACE COURSE ROAD,
      BENGALURU 01
                               2


3.   ANTI CORRUPTION BUREAU
     BY ITS SUPERINTENDENT OF POLICE,
     49, KHANIJA BHAVAN,
     RACE COURSE ROAD,
     BENGALURU 01

4.   THE REGISTRAR LOKAYUKTHA
     M.S. BUILDING
     BENGALURU - 560 001

                                             ... RESPONDENTS
(BY SRI B.J. ROHITH, HCGP FOR R1
 SRI B.B. PATIL, ADVOCATE FOR R2 AND R3 / LOKAYUKTHA)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION   482 OF THE CODE OF CRIMINAL PROCEDURE,
PRAYING   TO    QUASH   THE   IMPUGNED   SANCTION     ORDER
DTD.5.10.2021 PASSED BY THE R-4 UNDER SECTION 19(1)(b)
OF THE PC ACT PERMITTING THE PROSECUTION OF THE IN SO
FAR AS PETITIONER CONCERNED FOR ALLEGED OFFENCES
PUNISHABLE     UNDER SECTION      8, 12 AND    13(1)(C)   R/W
SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT
1988 AND R/W SECTIONS 465, 468, 474 AND 120B OF IPC
PRODUCED       AS   ANNEXURE-A    AS   BAD    IN   LAW    NOT
MAINTAINABLE AND ABUSE OF THE PROCESS OF LAW.


IN WRIT PETITION NO.1142 OF 2022

BETWEEN

DR. ANITHA R
W/O ARUN S. RAI,
AGED ABOUT 44 YEARS,
DEPUTY DIRECTOR,
KARNATAKA ACADEMY OF PRISONS
                             3


AND CORRECTIONAL SERVICES,
BANGALORE,

AND ALSO HOLDING ADDITIONAL CHARGE AS PRINCIPAL,
PRISON TRAINING INSTITUTE,
MYSORE - 570 007

R/AT PRINCIPAL QTRS, PTI,
ASHOKA ROAD,
CENTRAL PRISON COMPOUND,
MYSURU-570 007.                            ... PETITIONER

(BY SRI CHANDRAKANTH R GOULAY, ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      REP BY ITS PRINCIPAL SECRETARY TO HOME,
      (PRISONS,CINEMA AND AUXILIARY SERVICES)
      VIDHANA SOUDHA,
      BENGALURU-560001

2.    THE DIRECTOR GENERAL OF POLICE
      KARNATAKA PRISONS AND CORRECTIONAL
      SERVICES,
      NO.4 SESHADRI ROAD
      BENGALURU - 560 009

3.    KARNATAKA LOKAYUKTHA
      REPRESENTED BY THE REGISTRAR
      M.S. BUILDING
      BENGALURU - 560 001
                                         ... RESPONDENTS
(BY SRI B.J. ROHITH, HCGP FOR R1 AND R2
 SRI B.B. PATIL, ADVOCATE FOR R3/ LOKAYUKTHA)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION   482 OF THE CODE OF CRIMINAL PROCEDURE,
PRAYING TO QUASH THE IMPUGNED ORDER DATED 30.12.2021
                                4


AS PER ANNEXURE-L PASSED BY THE R-1 AS ARBITRARY
ILLEGAL AND VOID AND ONE WITH A MALAFIDE INTENTION
AND OFFENDING ARTICLE 20(1)(2)(3) OF THE CONSTITUTION
OF    INDIA.   GRANT   AN   INTERIM   ORDER   TO   STAY   THE
OPERATION AND IMPLEMENTATION OF THE IMPUGNED ORDER
DATED 30.12.2021 AS PER ANNEXURE-L PASSED BY THE R-1
AND ALL FURTHER PROCEEDINGS THERETO.


IN WRIT PETITION NO.3171 OF 2022

BETWEEN

KRISHNA KUMAR
s/o THIMMARAYAPPA
AGED ABOUT 46 YEARS,
NO.3, 3RD CROSS
HANUMAPPA LAYOUT
ALLALASANDRA
BANGALORE NORTH TALUK
BENGALURU 560065

PRESENTLY WORKING AS
CHIEF SUPERINTENDENT OF PRISON
BELAGAUM                                      ... PETITIONER

(BY SRI VIKRAM HUILGOL, SENIOR ADVOCATE
 FOR SRI PRINCE ISAC, ADVOCATE)

AND

1.    STATE OF KARNATAKA
      BY ITS CHIEF SECRETARY
      VIDHANA SOUDHA,
      DR B R AMBEDKAR ROAD,
      BANGALORE 560 001


2.    THE UNDER SECRETARY TO THE
      GOVERNMENT OF KARNATAKA
                              5


     DEPARTMENT OF HOME
     (PRISON AND CINEMA)
     VIDHANA SOUDHA,
     DR B R AMBEDKAR ROAD,
     BANGALORE 560001

3.   ADDITIONAL DIRECTOR GENERAL POLICE
     ANTI CORRUPTION BUREAU
     NO.49 KHANIJA BHAVAN
     RACE COURSE ROAD,
     BANGALORE 560001
4.   ANTI CORRUPTION BUREAU
     BY ITS SUPERINTENDENT OF POLICE
     NO.49 KHANIJA BHAVAN
     RACE COURSE ROAD,
     BANGALORE 560001

5.   KARNATAKA LOKAYUKTHA
     M.S. BUILDING
     DR. AMBEDKAR VEEDHI
     BENGALURU - 560 001
                                          ... RESPONDENTS
(BY SRI B.J. ROHITH, HCGP FOR R1 AND R2
 SRI B.B. PATIL, ADVOCATE FOR R3 AND R4 / LOKAYUKTHA)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION   482 OF THE CODE OF CRIMINAL PROCEDURE,
PRAYING TO QUASH THE IMPUGNED ORDER DTD 30.12.2021
PASSED BY THE R-2 UNDER SECTION 19 (1)(b) PERMITTING
THE PROSECUTION OF THE PETITIONER FOR ALLEGED OFFENES
UNDER SECTION 13(1)(c) AND 13 (2) OF THE PREVENTION OF
CORRUPTION ACT READ WITH SECTION 120(B) OF THE INDIAN
PENAL CODE, VIDE ANNX-A.
                               6


     THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 11.4.2023 THIS DAY, THE COURT
MADE THE FOLLOWING:

                            ORDER

WP.No.3171/2022 filed by the accused No.1 and

WP.No.1142/2022 by accused No.2 and under Articles 226

and 227 of Constitution of India read with 482 of Cr.P.C for

quashing the Sanction order granted by respondent/State

vide Government Order No. HD 62 PRE 2017 dated

30.12.2021 permitting the prosecution to initiate

proceedings against accused No.1 section 13(1)(C) and

13(1)(2) of Prevention of Corruption Act read with 120 of

IPC.

2. WP.No.16978/2022 filed by petitioner accused

No.4 for quashing the sanction order dated 05.10.2021 in

No.24/Sibbandi/KSISF(ISD)/2021 by the respondent State

under Section 8, 12 and 13(1)(c) read with Section 13 (2)

of the PC Act, 1988 and Sections 465, 468, 474, 120B of

IPC now pending in Special C.C.No.127/2022 on the file of

Special Judge, PC Act, CCH 24, Bengaluru.

3. The case of the petitioner in WP.No.16978/2022

is that the petitioner/accused No.4 is presently working as

Inspector Police in Karnataka State Industrial Security

Force (KSISF), under Internal Security Division (ISD) and

he was posted to Central Jail Bengaluru and when he was

Sub-Inspector of police and reported duty in Parappana

Agrahara Jail on 11.12.2015 he was assigned with

incharge of security of the outer perimeter consisting of 7

police Sub Inspectors, 53 male constable and 5 women

constables deployed at Bangalore Central Jail by

commandant second battalion of the KAS-IAS Officer. The

petitioner was deputed for the duty of the main entrance

and outer visitors area. On 15.02.2017 the then AIADMK-

General Secretary Smt.Sasikala Natarajan and Ilavarasi

had surrendered and detained in the jail in

disproportionate asset's case after they were convicted by

the Hon'ble Supreme Court. On 15.02.2017 an office

order was issued by Chief Superintendent of Central Jail,

Bengaluru by setting task for the KSISF unit personnel to

the above said two convicts. There was high tight

security, no private vehicles were allowed beyond the

traffic points and also general public were prevented from

entering the jail. The petitioner was discharging duty and

the Deputy Inspector General of Police submitted written

complaint on 12.07.2017 to the Director General of Police,

Prisons (DGP, Prisons) alleging some irregularities in the

Central Jail Bangalore. The DIG of police alleged against

the DGP prisons. Following the order of DGP, the letter was

written to the Principal Secretary (PCAS) to the

Government, Home Department, for seeking strict

disciplinary action against DIG, prisons. In the meanwhile

an anonymous letter bearing no signatures dated

14.7.2017 merely signed by 'Aggrieved Jail Officers and

Personnel' was addressed to DGP, Prisons, alleging that

that the petitioner was acting as broker in facilitating

luxury amenities to Smt.Sasikala Natarajan who was said

to be receiving royal treatment inside the jail. It was

stated in the said letter that this petitioner was taking

MLAs, MPs inside the jail without recording the same in the

visitor's register book and were made to contact with Smt.

Sasikala Natarajan by taking bribe. It is alleged that the

Additional Inspector General (AIGP) Prisons who conducted

the enquiry on anonymous letter and it has mentioned

AIGP, Prisons in (the late Veerabhadra Swamy) in a

statement on 22.06.2018 to the Anti-Corruption Bureau

(ACB). In pursuant to the letter the government passed

an order appointing one Sri.Vinay Kumar on 14.07.2017 a

retired IAS officer for enquiring on the letter dated

12.07.2017. On 11.08.2017 the Under Secretary (Admin)

to the Excellency the Government for enquired with the

matter and report was forwarded on 21.10.2017 stating

that there was no adverse finding against this petitioner

and the Government letter dated 26.02.2018 accepted the

report of Sri.Vinay Kumar where it is stated that there is

no financial irregularities and alleged incidents in the

matter. The Government passed an order No.HD62PRE

2017 dated 26.2.2018 for handing over the investigation

to the ACB against one Sri.H.N.Sathyanarayana Rao

former DGP, prisons and the case was registered for the

offence punishable under sections 13 (1) (C) and 13 (2) of

PC Act. An FIR has been registered by ACB police against

Sri.H.N.Sathyanarayana Rao in Crime No.7/2018 and took

up the investigation. After the investigation, the ACB

sought sanction to prosecute the offence against the

petitioner and sanction order was issued and charge sheet

came to be filed on 07.1.2022.. The special case has been

registered by the police in Special Case No.127/2020

which is under challenge.

4. The learned counsel for the petitioner/accused

No.4 W.P.NO.16978/2022 contended that the sanction

order passed by the State Government is arbitrary and

illegal. The Enquiry Officer appointed by the State

Government not given any specific adverse finding against

this petitioner, when the said report has been accepted by

the State, the State Government has ordered to initiate

proceedings against the DGP, Prisons H.N.Sathyanarayana

Rao, but no such order passed by the State Government

against this petitioner, but the order of sanction is without

looking any material to prosecute the petitioner which is

abuse of process of law. The State has directed the ACB-

police to initiate proceedings against H.N.Sathyanarayana

Rao but the said Sathyanarayana Rao has been dropped

from the charge sheet. The petitioner is neither accused in

the FIR nor in the enquiry report, but he has been falsely

implicated. The petitioner not committed any offence

either under Section 120 B of IPC or any other offences.

The complaint is based upon the anonymous letter, that

too against some other accused persons not against this

petitioner. Even the raid which was conducted by the

police, no money was recovered from the possession of

this petitioner, either in the house or in his possession.

Therefore, invoking provision under sections of PC Act is

abuse of process of law. Even otherwise, for grant of

sanction to prosecute the offence under section 13 (1) (a)

of PC Act cannot be applied to this petitioner as there is no

element of demand or acceptance by this

petitioner/accused No.2, in the entire material on record.

Hence, prayed for quashing the criminal proceedings.

5. The case of the petitioner in WP No.1142/2022 is

that the petitioner/accused No.2 was working as Assistant

Superintendent of Prisons, Bangalore Central Jail and was

kept under suspension on 23.04.2012 along with the then

Chief Superintendent of prisons Sri.T.H. Lakshminarayana

on certain false allegations. Both of them independently

challenged the same before the tribunal in application

No.2203/2012 and also to the High Court in Writ Petition

No.14759/2012 and 15184/2012, respectively. After

arguments, the High Court has allowed the writ petitions

and passed an order on 02.07.2012 and the order of

suspension was set aside and declared the interlocutory

application before the tribunal has become redundant and

the High Court has allowed the writ petitions on the

ground, that the allegations are baseless. On the basis of

the charges FIR was also registered which was challenged

before the High Court in Crl.P.Nos.4019/2012 and

3113/2012. Later the petitioner was promoted as

Superintendent of Prisons on 10.4.2013, then he was

transferred to central prison Bangalore and she was

working from 26.08.2016 to 14.02.2017. The DG and IGP

vide letter dated 14.2.2017 posted the petitioner towards

security in Central Jail, during that time the convicts i.e.,

Smt.Sasikala Natarajan and other political parties from

Chennai were lodged. The charge of Superintendent of

Prisons was taken by the petitioner and handed over to

one Sri. K. Suresh on 14.02.2017 and he has relieved from

the duties. The respondent restricted the duty of the

petitioner as a security to the lady prisoner and that she

perfectly discharged her duties and responsibilities and

there was no allegation of any kind. The Chief

Superintendent of Prisons, at that time incharge was

Sri.Krishna Kumar was solely responsible for any illegal

actions. The entire episode was monitored by Director

General of Prisons through CCTV surveillance and he has

not raised his finger towards her at any point of time and

now making the allegations that she was facilitating the

convict to meet the other persons and also provided the

other facility to her. A report became public issue, there

were two higher officials H.N.Sathyanarayana Rao, retired

DGP and one Roopa IPS. However, Sri.Krishna Kumar was

replaced by this petitioner as incharge Superintendent of

Prisons as per the order dated 17.7.2017. However, within

few days another notice was issued on 19.07.2017 and he

was transferred to Superintendent of Prisons, Dharwad

Prisons. The order was premature transfer, therefore she

has challenged before the Tribunal by filing application

No.4598/2017 which came to be disposed on 14.08.2017

to consider representation, which was not obeyed. The

petitioner was subject to repeated harassment, mental

torture by the superiors namely Sri.S.T.Somashekhar, the

then Chief Superintendent of Prisons and Sri.P.S Ramesh,

Superintendent of Prisons and she has given complaint to

take action on 16.08.2017. The allegations, if any, for

providing additional facilities and undue advantages which

were extended to the convicted female prisoner used to be

that one Sri.K.Suresh Superintendent of Prison and this

petitioner had no role to play in the said allegations. There

was dispute between two senior officials Roopa and

H.N.Sathyanarayana Rao against each other and report

has been submitted to the State Government and a case

was registered against H.N.Sathyanarayana Rao retired

DGP. Based upon the report a charge memo has been

issued against the petitioner on 03.04.2018 vide notice

number OE-62-PRI-2017. There were six charges alleged

in the charge memo, the charge Nos.1 to 5 of the charge

was not related to this petitioner, as she was not holding

post of Superintendent of Prisons and it was relatable to

K.Suresh, who was incharge of Superintendent of Prison.

So far as charge No.6 is concerned, it is related to this

petitioner, there is no allegation of any deficiency in

security provided by the petitioner to the prisoner

Smt.Sasikala Natarajan at any point of time. A letter said

to be noted by a lady prisoner which was addressed to this

Superior Officers and action has been taken in that regard

so far as related to providing her medical assistance, cot,

clothing etc. On behalf of that, superiors have issued

letter with a direction and accordingly facilities were

extended to the convict. The petitioner is not responsible

for the same. Sri.Krishna Kumar was holding the post of

Chief Superintendent of prisons has to answer the issues.

The denial of the promotion against this petitioner on the

pretext of enquiry she has faced Departmental Enquiry

through DPC proceedings and concluded in her favour long

before. The petitioner being aggrieved to the issuance of

charge memo dated 03.04.2018 and approached KAT and

the tribunal vide order dated 06.01.2020 set aside the

order of issuing charge memo dated 03.04.2018 with a

direction to consider her promotion. Pursuant to the order

of tribunal, the State Government exonerated petitioner

from the charges on 04.07.2020.

6. After the contempt, the decision has been taken

by Inspector General of Police in the nature of

communication dated 23.07.2020 and promotion has been

considered. However, once again racked up instance at the

very same officials taking undue advantage, an exchange

of money by way of corruption, by Sri.

H.N.Sathyanarayana Rao and one Smt.D.Roopa IPS

officer, the petitioners were unnecessarily dragged into the

matter and filed false complaint against her. The report of

Sri.Vinay Kumar has not specifically implicated this

petitioner. Once again the State Government accorded the

sanction to initiate proceedings against this petitioner for

the offences as per provisions of section 19(1)(b) of the PC

Act. As per the order dated 30.12.2021 about the report

of the IPS Officer-Roopa followed by the appointment of

committee which was headed by retired officer Sri.Vinay

Kumar and Government has accepted the report and

registered FIR against the H.N.Sathyanarayana Rao and

for the first time on 14.07.2021 seeking sanction against

the petitioner along with Sri.Krishna Kumar. The

impugned sanction has been passed on 30.12.2021. Prior

to that, a raid was conducted nothing has been recovered

in the house of the petitioner. In spite of the same, the

proceedings has been initiated against the petitioner,

which is under challenge.

7. The petitioner counsel has further contended that

ACB registered case against the petitioner in Special Case

No.127/2022 despite informing the said authority, and

jurisdiction Court has issued summons to appear. The

registration of FIR and charge sheet is blatantly violation of

the interim order of this Court. The State Government has

closed the proceeding against the petitioner on the same

day, when the sanction has been issued by the other side

which is against the law. There is nothing evident in the

charge sheet for the alleged offences under section

13(1)(2) of PC Act read with 120B of IPC.

8. The learned counsel further contended that the

authority who has issued the sanction order is not

competent to issue such an order, as there is no offence

committed by petitioner under section 13(1)(c) and

13(1)(2) of PC Act. Even 120 B of IPC also not attracted.

The order issued by the sanctioning authority is not in

public interest. The order has been issued with malafide

intention to harass the petitioner. The earlier FIRs were

already set aside by the High Court and charge memo has

been set aside by Karnataka State Administrative Tribunal

in application No.5760 and 5913 of 2018 which attained

the finality. A revengeful argument between the two IPS

officers Sri.H.N.Sathyanarayana Rao and Smt.Roopa which

has been concluded by discharging them from the

allegations against each other. The order passed by the

State Government is mechanical in nature, they have not

verified the order of exonerating from the charges and

order of the tribunal. None of the allegations found in the

charge sheet attracts against petitioner/accused No.2. It is

further contended, the case was registered against

H.N.Sathyanarayana Rao but he himself was deleted from

the charge sheet and lower rank officials are unnecessarily

harassed by the State. In spite of tribunal quashing the

enquiry and exonerating petitioner from the enquiry,

question of granting sanction does not arise. The charges

made in the charge sheet is based upon assumption and

presumption which is not a ground for initiating

proceedings against the petitioner and hence prayed for

quashing the sanction order dated 30.12.2021 and also

quashing all the criminal proceedings before the special

court.

9. In WP No.3171/2022, the petitioner is accused

No.1 in the charge sheet and it is alleged that based upon

the report of one Roopa, IPS officer dated 12.07.2017,

regarding some irregularities in the jail the State has

appointed one Sri.Vinay Kumar retired IAS officer for

enquiring and submitting report. Accordingly, report has

been submitted on 26.02.2018 and on the basis of report

the State Government directed ACB to register FIR against

H.N.Sathyanarayana Rao for the offence punishable under

sections 13(1)(c) and 13(2) of PC Act as

Sri.H.N.Sathyanarayana Rao said to be received illegal

gratification of Rs.2 crores for extending facilities in the jail

to one Smt.Sasikala Natarajan a convict of the criminal

case. The police have registered FIR and after registering

FIR, the police investigated the matter against

H.N.Sathyanarayana Rao and report was submitted to

Sri.Vinay Kumar and based upon the report a show cause

notice were issued to this petitioner on 03.04.2018 and he

has replied. Subsequently, ACB registered FIR and the

respondent No.4 accorded sanction against the petitioner.

The criminal proceedings against this petitioner is arbitrary

and uncalled for and it is abuse of process of law. The

petitioner who is highly aggrieved by the impugned order

dated 30.12.2021 for initiating proceedings against this

petitioner, therefore petitioner prayed for quashing FIR

and the very sanction order passed against the petitioner.

10. The learned counsel for petitioner contended the

impugned order of sanction is bad in law, there is no

ingredients of any offences alleged against this petitioner.

The then DG and IGP received Rs.2 crores as bribe for

providing facilities to the convicted accused Shashikala and

no money has been recovered from this petitioner. There

shall be no dishonest and fraudulent misappropriation of

any property, but no such allegations made against this

petitioner. In the enquiry report of Sri.Vinay Kumar, there

is no specific finding against this petitioner for having

committing any offence. Therefore, prayed for quashing

the sanction order passed by the State on 30.12.2021.

      11.    The     learned        counsel   appearing   for

respondent/the     then   ACB,      present   Lokayukta   has

contended and argued in respect of the petitioner in

W.P.No.16978/2022 that some irregularity committed in

the present, an independent report has been obtained.

The sanction was challenged in this case, where the

respondent State has considered all the documents in

respect of registering of FIR and based upon the report,

the sanction has been granted. Therefore, if any defect in

the sanction, that cannot be questioned before the High

Court, that has to be considered only in the trial court, as

per the judgement of Hon'ble Supreme Court in CBI Vs

Ashok Kumar Aggarwal reported in (2014) 14 SCC

295. Hence prayed for dismissing the petition.

12. As regards to WP No.1142/2022 learned

counsel for respondent objected the petition and contented

that the sanction has been accorded in accordance with

law, therefore remedies available to the petitioner before

the trial court and not in the writ petition or 482 of Cr.P.C.

Also contended that there is so many allegations against

accused No.1, the enquiry against accused No.1 is still

under progress though the enquiry against accused No.2

has been quashed, but fairly admitted there is no enquiry

initiated by the State under KCSR rules against accused

No.4 that is petitioner in W.P.No.16978/2022.

13. In reply the learned counsel for the petitioner

were further contended entire allegation goes against

accused H.N.Sathyanarayana Rao who was the Chief

Superintendent of prison was being named as accused in

FIR. Subsequently, the ACB dropped the charges against

him and very recently the coordinate bench of this court

quashed proceedings against H.N.Sathyanarayana Rao and

absolutely there is no material against petitioner/accused

No.4 and accused No.2, as the enquiry against accused

No.2 has been quashed by the Karnataka State

Administrative Tribunal and no enquiry has been initiated

against accused No.4 and he was not named in the FIR.

Hence prayed for quashing the sanction order and the

charges against petitioners/accused Nos.1, 2 and 4.

14. Having heard the arguments of learned counsel

for parties and counsel for petitioners and the learned

HCGP for State and Sri.B.B. Patil, learned counsel for

respondent/Lokayukta and perused the records. On

perusal of record which reveals that one Smt. D. Roopa an

IPS officer made an allegation against previous D.G.P. of

prisons Sri. H.N.Sathyanarayana alleging that there was

some irregularities in the jail Parappana Agrahara Central

jail where it is said to have been given facilities to the

convict accused Smt.Sasikala Natarajan and Ilavarasi who

were being detained in the Bangalore Jail after their

conviction which has been upheld by the Hon'ble Supreme

Court. Based upon the report of the said Roopa-IPS

officer, on 12.07.2017, the State Government has

appointed the IAS officer Sri.Vinay Kumar for conducting

an enquiry. Accordingly, the said Sri.Vinay Kumar held an

enquiry and given the report stating that there were some

irregularities in the prison and he has recommended for

upgrading the jail by tightening the security. Accepting

the report the State Government accepted the report on

26.02.2018. It is admitted fact that there is no allegation

against this petitioner accused No.4/Gajaraja Makanur and

there was no inquiry initiated by the State Government

against the petitioner accused No.4. However after the

report of the IAS officer Vinay Kumar, the State

Government recommended to initiate the FIR against

H.N.Sathyanarayana Rao, DGP of Central Prison vide

order dated 26.02.2018. Based upon the State

Governments recommendation an FIR has been registered

against H.N.Sathyanarayana Rao for the offence

punishable under sections 13 (1) (c) and 13(2) of PC Act.

After the investigation the police have filed charge sheet

against other accused persons by dropping

H.N.Sathyanarayana Rao who is the prime accused against

whom the allegation of Rs.2 crores has been received as

bribe and he has been given clean chit by the then ACB

police. It is also admitted fact that very recently, the FIR

against said Satyanarayana has been quashed by the

coordinate bench of this court. On perusal of the record,

it is also an admitted fact, the State Government initiated,

Departmental Enquiry against accused Nos.1 and 2 one

Krishna Kumar and Doctor Anita. The said Doctor Anita

was posted as security to the accused Sasikala. The

accused Sri.Krishna Kumar who said to be jail

Superintendent and during the initiation of Departmental

Enquiry, the accused Anita approached the Karnataka

Administrative Tribunal, where after verifying the

documents, the Administrative Tribunal set aside the order

of enquiry and given a clean chit. Subsequently, the State

Government dropped the enquiry which was initiated

against accused No.2/Anita vide order dated 04.07.2020.

However the State Government in the very same order,

directed the authorities to continue the enquiry against

Krishna Kumar, the petitioner accused No.1, the Chief

Superintendent of Central Jail. It is also an admitted fact,

on the very same day the State Government given

sanction to the ACB/Lokayuktha police to prosecute the

case against all the above said petitioners, which is under

challenge. The order of the State dated 30.12.2021 as

against No.4 was challenged by the petitioner.

15. It is contended by the learned counsel for the

petitioner accused No.4 one Akka Mahadevi advocate, that

during the investigation ACB police raided the house of

petitioner, they have not find any incriminating material in

the house and even there is no demand or acceptance of

any bribe and there is no allegation of any bribe as against

the petitioner Gajaraja Makanur/the accused No.4. The

documents produced by the petitioner has been produced

and during the raid which was conducted in the house of

this petitioner on 11.08.2021, where it is found, that there

were one TV measuring 43 inches purchased in the year

2020 value of Rs.21,000 and an old sofa set has no value

and 4 plastic chair value of Rs.2000 were found.

Admittedly there were no cash or any gold have been

found in the house of the petitioner accused No.4 Gajaraja

Makanur and on considering the entire documents there is

no statement or evidence against petitioner accused No.4

to show that he has demanded or accepted any bribe from

any of the convicted accused persons or from any person

who visited the jail when meeting the convicts. The ACB

police not at all collected any incriminating evidence

against the accused No.4 for having committed any

irregularities or receipt of any bribe by demand or from

any corner of the security to show, this petitioner has

involved in the demand or acceptance during any official

parole to the convicted accused. The State Government

also while accepting the report of the Sri. Vinay Kumar,

IAS officer and ordered for initiating disciplinary action

against the Doctor Anita the accused No.2 and Krishna

Kumar the accused No.1 Chief Jail Superintendent but

there is no order for enquiry against this petitioner accused

No.4 Gajaraja Makanur as the State Government was very

much aware that there is no allegation against him. That

apart the very complaint is against the

H.N.Sathyanarayana Rao former DGP of prison and FIR

also registered against him for having received Rs.2 crores

from the convicts and providing facilities. Therefore, when

there is no substance in the allegation in the charge sheet

and there is no ingredients to attract for any of the

provisions of PC Act or IPC against this petitioner accused

No.4 for having committed, in order to frame the charges

against him. When the State Government not chosen to

initiate any disciplinary action against this petitioner and

FIR also not ordered against the petitioner, the ACB to the

best reasons known to the Investigating officer has

dropped the prime accused (DGP-Sathyanarayana Rao) in

the charge sheet and obtained permission against this

petitioner for filing the charge sheet against this petitioner,

even though absolutely there is no material against this

petitioner. The state has issued the sanction order simply

mentioning 'Final report' of the police and without any

discussion or satisfaction and ignoring the earlier

government orders for registering FIR against

H.N.Sathyanarayana Rao and also ignoring dropping of

charge sheet against H.N.Sathyanarayana Rao. Even

though knowing fully there is no departmental enquiry

initiated against this petitioner and also nothing has been

recovered during the raid at the house of the petitioner

giving sanction to prosecute against the accused who is a

police sub-inspector was posted for the security, is non

application of mind. Hence the same is liable to be

quashed.

16. Of course the learned counsel for respondent

relied upon judgment of Ashok Kumar Vs CBI stated

supra where the Hon'ble Supreme Court has held the

sanction has been considered at the stage of trial but it is

pertinent to note when there is no order for departmental

enquiry and there is no allegation of demand and

acceptance or conspiracy by this petitioner and the main

accused H.N.Sathyanarayana Rao has been dropped by the

investigating officer against whom the allegation of Rs. 2

crores has been made in the charge sheet as per the

recommendation of the State, but without any documents,

the police requested the State for according sanction and

the State Government not analysed or verified any

documents to show there was any specific allegation

against this petitioner for having committed any of the

offence but blindly granted sanction under section under

sections 13(1)(C) and 13(1)(2) of the PC Act by filing their

charge sheet vide order dated 05.10.2021 is abuse of

process of law and without application of mind and liable to

be set aside.

17. As regards the petitioner accused No.2 in Writ

Petition No.1142/2022, the contention of the learned

counsel for the petitioner is that the State Government has

accepted the report of Sri. Vinay Kumar, I.A.S. officer and

there is no allegation against the petitioner in the report of

the I.A.S. officer and there was no recovery from the

petitioner except an allegation that she allowed the convict

prisoner by providing some facilities to the convict

prisoner. It is further contended that as per the directions

issued by the higher officer, the petitioner was bound to

obey the order of the higher officer. In this regard, it is

also contended that the departmental enquiry has been

initiated against the petitioner accused No.2 and accused

No.1-Krishna Kumar. Sixth charge was against the

petitioner-Dr.Anitha mentioned in the charge memo,

wherein all other five charges related Krishna Kumar

accused No.1 and only one charge against the petitioner-

Dr.Anitha and against the said charge, she approached the

Karnataka State Administrative Tribunal (KSAT) by filing in

application No.5760 and 5193/2018. The KSAT by issued

order dated 06.01.2020 set aside the order of enquiry

against the petitioner -Dr Anitha by giving clean chit to her

and also directed the State to give promotion to her.

Subsequently, the State Government dropped the

proceedings against the petitioner-Dr.Anitha by an order

dated 04.07.2020 in No.HD 52 PRE 18, Bengaluru. It is

stated in the order of the State Government that as per

the order of the KSAT in application No.5760 and

5193/2018, initiation of proceedings and departmental

enquiry ordered by the State against Dr.Anitha the

accused No.2 has been set aside and the departmental

enquiry was dropped and the enquiry officer was permitted

to proceed against five charges alleged against accused

No.1-Krishna Kumar. Thereafter, State Government

passed the impugned order on 30.12.2021, on the request

of police, according sanction for prosecuting against the

petitioner accused No.2 - Dr.Anitha under Section 120B of

IPC and Section 13(1)(c) read with 13(2) of Prevention of

Corruption Act.

18. Perusal of the sanction order dated 13.12.2021,

it is stated that accused No.1-Krishna Kumar, who was the

Chief Jail Superintendent, has passed an order by

appointing the present petitioner accused No.2 -Dr.Anitha

by posting her as personal security to the convict and the

Additional Assistant Superintendent, one S. Kumar was

taken care of the visitors. The allegation against the

petitioner-Dr.Anitha is that she was posted as escort to the

convict Sasikala, though there was no threat to the

convict. It is pertinent to note that it is an order passed by

accused No.1-Krishna Kumar, Chief Jail Superintendent,

and as per instruction of accused No.1, the petitioner

accused No.2 - Dr.Anitha acted and obeyed the command.

However, the allegation made against the petitioner

accused No.2-Dr. Anitha was set aside by the KSAT in the

application filed by her and she was exonerated of the

charges. Based upon the same, the State Government

dropped charges against the petitioner-Dr. Anitha on

04.07.2020. Once again, while passing the impugned

order of sanction, the very sanctioning authority, i.e. the

Under Secretary to Home Department (Prison and Cinema)

has not considered the earlier order dated 4.7.2020 of the

Under Secretary to Home Department (Prison and Cinema)

passed by dropping enquiry against the petitioner accused

No.2-Dr. Anitha. It is ignorance of the order passed by the

same Under Secretary of the same department. Of course,

the earlier Under Secretary was Smt. M.R. Shobha, who

dropped the enquiry and disciplinary action against the

petitioner/accused No.2-Dr.Anitha as per the order of the

KSAT, but by executing the order dated 04.07.2020 HD52

PRE 2018, Bangalore of same Under Secretary the order

KSAT granting sanction of the very same department by

Under Secretary, by ignoring the court order which has

attained finality and dropped the departmental enquiry,

and hence the question of prosecuting the petitioner for

the very same allegation without any material for demand

or acceptance of any bribe or conspiracy with other

accused initiating proceedings and conducting trial is abuse

of process of law. When the very same Under Secretary to

State Government, on one hand, has dropped the enquiry

and same Under Secretary to State Government, on the

other hand, accorded sanctioning for prosecution, which is

abuse of process of law and hence, order of sanction was

non application of mind as held by the Hon'ble Supreme

Court in the case of State of Karnataka Vs Ameerjan

reported (2007) 11 SCC 273. Therefore, when the main

accused H.N. Sathyanarayana Rao, who is said to be

obtained Rs.2.00 crores as bribe from the convict prisoner

and granted facilities, has been dropped from the charges,

but for the reasons best known to the investigation officer

and ACB, implicated the staff and this petitioner-Dr.Anitha,

who only acted on the command of the higher officer

Chief Jail Superintendent the accused No.1. Though the

enquiry was set aside by the Tribunal and dropped by the

State Government, once again granting sanction for

initiation of proceedings against the petitioner-Dr.Anitha,

on the same allegation, is nothing but abuse of process of

law. There is no reason for making allegation against the

petitioner- Dr.Anitha in the charge sheet by the police.

Therefore, granting sanction for prosecution dated

30.12.2021 against the petitioner accused No.2 - Dr.Anitha

under Section 19 of the PC Act, is liable to be set aside.

19. As regards the petitioner-accused No.1 Krishna

Kumar in W.P. No.3171/2022 it is borne out from the

record that sanction has been accorded by the Under

Secretary to the State Government, Home Department

(Prison and Cinema) against him. The enquiry against

petitioner-Krishna Kumar is still under progress. There

were five charges issued against petitioner-Krishna Kumar

in the charge memo, but he has not questioned the charge

memo or the charges in the departmental enquiry ordered

by the State Government. Even the State Government,

while dropping the enquiry against accused No.2 - Dr.

Anitha on 04.07.2020, has categorically stated that the

enquiry against the petitioner-Krishna Kumar shall be

proceeded. Admittedly, the petitioner-Krishna Kumar is

Chief Jail Superintendent. As per the documents, the said

accused-Dr.Anitha was transferred and one Suresh Kumar

was posted as in charge in her place. By the time, the said

accused-Dr.Anitha filed an application for retention at

Bengaluru, she was already transferred to Dharwad and no

order was passed by the State Government and the

departmental enquiry against petitioner-Krishna Kumar is

still pending. As held above, it is an admitted fact that the

main allegation against H.N. Surynanarayana Rao, DGP

(Prison), that he has demanded and received Rs.2.00

crores and given protection to the convict prisoner has

been dropped from the charge sheet and even though FIR

has been filed and the Co-ordinate Bench in W.P.

No.10042/2018 has quashed the FIR and has stated that

when police dropped the charges against him, the

proceedings becomes infructuous and writ petition was

dismissed. Now the departmental enquiry is under

progress and still, no report has been submitted by the

enquiry officer against the petitioner accused No.1 -

Krishna Kumar. The police though filed charge sheet, there

is no specific allegation against petitioner-Krishna Kumar

regarding any bribe or its acceptance. On the other hand,

there was an allegation of irregularity committed by the

petitioner-Krishna Kumar that he ordered for providing

high security to the convict prisoner and he ordered to give

protection to convict prisoner and therefore, the jail

superintendent was given as security, even though there

was no threat to the life of convict prisoner. However,

there is no direct allegation against the petitioner-Krishna

Kumar for having acceptance or demand of any bribe.

The enquiry is yet not completed and he was not held

guilty. Such being the case, when the same allegation was

made against the co-accused Dr Anitha, the State

Government has dropped the proceedings against her as

per the directions of KSAT, but continued the proceed

against this petitioner.

20. Learned counsel for the petitioner has relied

up[on the judgment of the Hon'ble Supreme Court in

State of Karnataka Vs Ameerjan reported (2007) 11

SCC 273 wherein the Hon'ble Supreme Court at para

10 of the said judgment has held as under:

10. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have noticed hereinbefore that the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayukta. Even the said report has not been brought on record. Thus, whether in the said report, either in the body thereof or by annexing therewith the relevant documents, IG Police, Karnataka Lokayukta had placed on record the materials collected on investigation of the matter which would prima

facie establish existence of evidence in regard to the commission of the offence by the public servant concerned is not evident. Ordinarily, before passing an order of sanction, the entire records containing the materials collected against the accused should be placed before the sanctioning authority. In the event, the order of sanction does not indicate application of mind as (sic to) the materials placed before the said authority before the order of sanction was passed, the same may be produced before the court to show that such materials had in fact been produced.

21. Perusal of the order of according sanction would

indicate that the sanctioning authority has just mentioned

the submission of report by the police seeking permission

and not consider the dropping of proceedings against the

co-accused No.2 - Dr.Anitha and non application of mind is

very much available on record. The learned counsel for

respondent has also contended that the sanction shall be

challenged only before trial Court. However, the very

basis for filing charge sheet is given importance. There

was some irregularity committed by the Chief Jail

Superintendent in the jail and there was no application of

mind by the Under Secretary to Government as there is no