Karnataka High Court
Sri M D Rangaswamy vs The State By Karnataka on 23 October, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 16364 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 16364 OF 2024 (GM-RES)
BETWEEN:
SRI M D RANGASWAMY
S/O DHARMAPAL T
AGED ABOUT 44 YEARS
WORKING AS PANCHAYAT DEVELOPMENT OFFICER
MALALI GRAM PANCHAYATH
KASABA HOBLI,
SAKLESHPUR TALUK
HASSAN DISTRICT 571 127.
...PETITIONER
(BY SRI. SATISH K.,ADVOCATE)
AND:
Digitally signed by 1. THE STATE BY KARNATAKA
NAGAVENI
Location: HIGH
LOKAYUKTHA POLICE
COURT OF REPRESENTED BY ITS INSPECTOR OF POLICE
KARNATAKA
HASSAN DISTRICT
HASSAN 573 201.
2. THE COMMISSIONER
KARNATAKA PANCHAYAT RAJ COMMISSIONERATE
DEPARTMENT OF RURAL DEVELOPMENT
AND PANCHAYAT RAJ, KALIDAS ROAD
GANDHI NAGAR
BANGALORE 560 009.
...RESPONDENTS
(BY SRI.B.B.PATIL, ADVOCATE FOR R-1
SRI. RANGASWAMY.R, HCGP FOR R-2)
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WP No. 16364 of 2024
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
THE CPC, 1973 PRAYING TO CALL FOR RECORDS FROM THE R-
1 AND QUASH THE IMPUGNED CHARGE SHEET DTD.
18.04.2024 FOR THE OFFENCES PUNISHABLE UNDER SECTION
7 (a) OF THE PREVENTION OF CORRUPTION ACT, 1988 FILED
BY KARNATAKA LOKAYUKTHA POLICE, HASSAN-R-1 (ANNX-H)
AND ALL FURTHER PROCEEDINGS PURSUANT THERETO,
PENDING ON THE FILE OF THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, HASSAN IN SPECIAL CASE NO. 186/2024
(ANNX-J).
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner/accused is before this Court calling in
question filing of charge sheet dated 18-04-2024 in Crime No.2
of 2021 and the order of grant of sanction for prosecuting the
petitioner.
2. Heard Sri K. Satish, learned counsel appearing for the
petitioner, Sri B.B. Patil, learned counsel appearing for
respondent No.1 and Sri R. Rangaswamy, learned High Court
Government Pleader appearing for respondent No.2.
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3. Facts, in brief, germane are as follows:-
The petitioner gets appointed as a Panchayat
Development Officer ('PDO' for short) of Kanatur Gram
Panchayat on 20-12-2013. Between 2016 and 2017 the wife of
the complainant is said to have applied for sanction of plan for
construction of a residential building under Rajiv Gandhi Rural
Housing scheme floated by the Corporation. It is said to have
been granted in her favour. On 20-01-2021 the petitioner being
the PDO of the concerned Gram Panchayat certifies release of
funds in favour of one Smt. Y.C. Yashodha on the ground that
there is already a certificate granted earlier. There was no
other role of the petitioner concerned in disbursal of the
amount in her favour. 20 days thereafter, a complaint is
registered by one Ravi before the then Anti-Corruption Bureau
('ACB' for short) alleging that in the month of September, 2020
the petitioner had demanded illegal gratification to the tune of
`5,000/- for release of grant of `37,500/- and the complainant
had paid the said amount in two installments i.e., `3,000/- and
`2,000/-. Pursuant to the said complaint, a crime comes to be
registered in Crime No.2 of 2021 for offences punishable under
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Section 7(a) of the Prevention of Corruption Act, 1988 ('the Act'
for short).
4. On 10-02-2021 a trap was laid against the petitioner,
but no money was recovered. Investigation continues and
sanction was sought from the hands of the Competent
Authority to file a charge sheet after the investigation. On
17-02-2024 the said permission for sanction was forwarded to
the 2nd respondent. The 2nd respondent after scrutinizing the
documents accords sanction to prosecute the petitioner. On
13-03-2024 the Government amends Karnataka General
Service (Development Branch and Local Government Branch)
(Cadre and Recruitment) Rules, 2008 and the Karnataka
General Services (Development Branch and Local
Administration Branch) (Cadre and Recruitment) Rules, 2024
came into effect. By this, there was a change in the
Disciplinary Authority. The Disciplinary Authority is the 2nd
respondent. Pursuant to the 2nd respondent according sanction
to prosecute, charge sheet then comes to be filed before the
concerned Court and the concerned Court takes cognizance of
the offence on 24-05-2024 and issues summons to the
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petitioner. The aforesaid act of filing of the charge sheet and
taking of cognizance has driven the petitioner to this Court in
the subject petition.
5. The learned counsel appearing for the petitioner would
restrict his submissions to the competence of the authority
granting sanction to prosecute for the present. According to
the learned counsel for the petitioner sanction is accorded by
an incompetent authority. He would base his submission upon
two dates, 17-02-2024 is the date on which the 2nd respondent
accords sanction; he becomes the Competent Authority only on
13-03-2024 and, therefore was incompetent to have accorded
sanction. This has vitiated the act of filing the charge sheet
and taking of cognizance is the submission of the learned
counsel appearing for the petitioner.
6. The learned counsel appearing for the 1st respondent/
Karnataka Lokayukta would refute the submissions to contend
that this plea of invalid sanction can be taken before the trial
Court itself. Approaching this Court under Section 482 of the
Cr.P.C. is not the remedy available to the petitioner. He would
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seek dismissal of the petition placing reliance upon the
judgments of the Apex Court in the cases of FULESHWAR
GOPE v. UNION OF INDIA - 2024 SCC OnLine SC 2610 and
CENTRAL BUREAU OF INVESTIGATION v. PRAMILA
VIRENDRA KUMAR AGARWAL - (2020) 17 SCC 664.
7. I have given my anxious consideration to the
submissions made by the respective learned counsel and have
perused the material on record.
8. The afore-narrated facts are not in dispute. The only
issue that falls for consideration is:
'Whether the 2nd respondent was competent to
accord sanction for prosecution of the petitioner?'
9. The 2nd respondent is the Commissioner of
Commissionerate of Karnataka Panchayat Raj and Rural
Development. The crime is registered on 9-02-2021; a trap is
laid on 10-02-2021; police after investigation were ready with
the charge sheet to be filed. Sanction was necessary to be
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obtained under Section 19 of the Act before filing the charge
sheet. 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, 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,--
(a) in the case of a person who is employed, or as the
case may be, was at the time of commission of the
alleged offence 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, or as the
case may be, was at the time of commission of the
alleged offence 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.
Provided that no request can be made, by a person
other than a police officer or an officer of an investigation
agency or other law enforcement authority, to the
appropriate Government or competent authority, as the
case may be, for the previous sanction of such
Government or authority for taking cognizance by the
court of any of the offences specified in this sub-section,
unless--
(i) such person has filed a complaint in a competent
court about the alleged offences for which the
public servant is sought to be prosecuted; and
(ii) the court has not dismissed the complaint under
Section 203 of the Code of Criminal Procedure,
1973 (2 of 1974) and directed the complainant to
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obtain the sanction for prosecution against the
public servant for further proceeding:
Provided further that in the case of request from
the person other than a police officer or an officer of an
investigation agency or other law enforcement authority,
the appropriate Government or competent authority shall
not accord sanction to prosecute a public servant without
providing an opportunity of being heard to the concerned
public servant:
Provided also that the appropriate Government or
any competent authority shall, after the receipt of the
proposal requiring sanction for prosecution of a public
servant under this sub-section, endeavour to convey the
decision on such proposal within a period of three months
from the date of its receipt:
Provided also that in case where, for the purpose of
grant of sanction for prosecution, legal consultation is
required, such period may, for the reasons to be recorded
in writing, be extended by a further period of one month:
Provided also that the Central Government may,
for the purpose of sanction for prosecution of a public
servant, prescribe such guidelines as it considers
necessary.
Explanation.--For the purposes of sub-section (1),
the expression "public servant" includes such person--
(a) who has ceased to hold the office during which the
offence is alleged to have been committed; or
(b) who has ceased to hold the office during which the
offence is alleged to have been committed and is
holding an office other than the office during which
the offence is alleged to have been committed.
(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
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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."
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Section 19 mandates that a person who is empowered to
remove the Government servant from service is the person who
is competent to accord sanction. Therefore, the Competent
Authority to grant sanction is depicted under the Rules. The
Rules, in the case at hand that is germane is, the Karnataka
General Service (Development Branch and Local Government
Branch) (Cadre and Recruitment) Rules, 2008. The 2nd
respondent was not the Competent Authority till the date of
amendment. On 17-02-2024 he has accorded sanction for
prosecution of the petitioner. The draft rules for amendment
were notified by the State Government on 18-02-2024,
pursuant to which the final Rules were notified on 13-03-2024.
10. It is an admitted fact that the 2nd respondent
becomes the Competent Authority only on 13-03-2024 in terms
of the amended Rules. He was not Competent Authority
hitherto. The learned counsel appearing for the 1st respondent
Sri B.B. Patil would admit the position that the Competent
Authority changed only on 13.03.2024. His only prayer is that
the Competent Authority must be reserved liberty to accord
sanction. The learned counsel for the petitioner would,
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however, submit that there is no warrant to reserve such
permission at all. Be those submissions as they are. It is an
admitted fact that sanction is accorded by an incompetent
authority. Before he could get competence under the Rules, in
anticipation, he has accorded sanction a month earlier. Such
anticipation does not have the sanction of law. Therefore, the
order passed by the incompetent authority is a nullity in law. All
further proceedings taken pursuant to the said sanction would
also become a nullity and not what has happened till then.
Therefore, registering of crime, conduct of investigation and the
charge sheet so prepared cannot be obliterated. It is only the
act of grant of sanction, filing of charge sheet and taking of
cognizance can be held to be a nullity in law.
11. The judgments on which the learned counsel for the
1st respondent places reliance upon would not be applicable to
the facts of the case, as the issue is on the jurisdiction of the
2nd respondent to have accorded sanction and the jurisdiction
cuts at the root of the matter. Therefore, directing the
concerned Court to consider this as well is of no avail. At any
rate, the hands of this Court cannot be tied for exercise of its
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jurisdiction under Article 226 of the Constitution r/w Section
482 of the Cr.P.C. when a particular act is an act without
jurisdiction. The Competent Authority is always at liberty to
analyse and accord sanction for prosecution if necessary in law.
That liberty is always present and the presence is only
recorded.
12. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) Charge sheet dated 18-04-2014 in Crime No.2 of
2021 pending before the Principal District and
Sessions Judge, Hassan stands quashed.
(iii) Liberty is reserved in the Competent Authority to
take necessary steps, bearing in mind the
observations made in the course of the order.
Sd/-
(M.NAGAPRASANNA)
JUDGE
