Telangana High Court

Gujja Sudhaker Rao, vs The Government Of Telangana, on 25 November, 2021

Bench: G.Radha Rani

           THE HON'BLE Dr. JUSTICE G. RADHA RANI

                WRIT PETITION No.30456 of 2014
ORDER:

This writ petition is filed to declare the order issued by the

respondent No.1 - Government of Telangana, vide GOMS No.486

Revenue (Vigilance - V) Department, dated 26.04.2011 to continue

prosecution after retirement of the petitioner from service contrary to

its earlier proceedings in G.O.Ms.No.1302, dated 20.10.2010, as

illegal, arbitrary, abuse of process of law, violative of Articles 14 and

16 of the Constitution of India and contrary to the well settled

principles of law laid down by the Hon'ble Apex Court with regard to

granting of sanction for prosecution and to quash the same.

2. The petitioner was Prohibition and Excise Inspector of

Laxettipet. The allegations against him as per the charge sheet filed by

the Inspector of Police, ACB, Adilabad was that he demanded and

accepted bribe of an amount of Rs.10,000/- from the complainant on

07.08.2008 as illegal gratification for doing official favour to conduct

enquiry and to submit report to the Excise Superintendent, Mancherial

for granting licence to the Toddy Toppers Society of Madapur (v),

Dandepalli (M), Adilabad District. Charge sheet was filed against

him for the offences under Sections 7 and 13 (2) read with 13 (1)(d) of

the Prevention of Corruption Act, 1988 after obtaining sanction from

the respondent No.1 vide Memo No.41981/Vig.V(1)/ 2008-4, dated

07.08.2009. The respondent No.3 - Director General, Anti

Corruption Bureau, sought for sanction of the prosecution of the Dr.GRR,J

petitioner-accused prior to his retirement on 17.04.2009 and the

Government issued permission to prosecute the petitioner and to file

charge sheet on 07.08.2009 after his retirement. Thereafter, on the

representation given by the petitioner to the 1st respondent on

18.09.2010 stating that he received the said amount of Rs.10,000/-

towards rental arrears and the de facto complainant in his statement

under Section 164 Cr.P.C., recorded on 20.09.2008 in the Court of

Special Judicial Magistrate of First Class, Adilabad also gave

statement as such the 1st respondent decided to drop further action

against the petitioner and issued G.O.Ms.No.1302 Revenue

(Vigilance-V) Department, dated 20.10.2010 and ordered the

respondent No.3, to take further action to give order to the Public

Prosecutor with a request to file a petition under Section 321 Cr.P.C.,

for withdrawal of prosecution against the petitioner before the Court

of the Principal Special Judge for SPE & ACB, Hyderabad.

Subsequently, the Deputy Commissioner of Prohibition and Excise,

Warangal Division, vide order in RC No.722/2008/DCW2/A3-2 dated

04.01.2011 dropped further action against the petitioner.

Subsequently, the respondent No.3 addressed a letter to the respondent

No.1 on 29.11.2010 to re-consider the matter and issue sanction for

prosecution of the petitioner. There upon, the respondent No.1 again

passed the order in G.O.Ms.No.486, dated 26.04.2011 to continue the

prosecution, cancelling the earlier order issued in G.O.Ms.No.1302

dated 30.10.2010. After filing the final report, the learned Special

Judge had taken cognizance of the alleged offences in CC No.150 of Dr.GRR,J

2010 (presently CC No.21 of 2015 on the file of Special Judge for

SPE & ACB Cases, Karimnagar, amended as per order dated

01.11.2021 in I.A. No.2 of 2019).

3. Heard the learned counsel for the petitioner and the learned

Special Public Prosecutor for ACB Cases.

4. Learned counsel for the petitioner submitted that the order in

G.O.Ms.No.486, dated 26.04.2011 passed by the respondent No.1 was

arbitrary, illegal and unconstitutional. Once the Government after

adverting to the material on record decided to withdraw and drop

further action, the same could not be reviewed at a later stage unless

fresh material was placed before the competent authority. The

Hon'ble Apex Court in several judgments has deprecated the action of

the competent authority reviewing the order of refusing sanction

without there being any fresh material produced by the Investigating

Agency. When once the order refusing to grant sanction was not

questioned by the Investigating Agency, then the Government could

not review the said order. When the sanction was sought for while the

Public Servant was in service, he should not be prosecuted after

retirement though no such sanction was necessary against the public

servant after the retirement as per the judgment of the Hon'ble Apex

Court in Chittaranjan Das v. State of Orissa1 and prayed to issue

writ of Mandamus to declare the order passed by the respondent No.1

as illegal.

2011 (7) SCC 167 Dr.GRR,J

5. Learned Special Public Prosecutor for ACB submitted that

as the petitioner-accused retired from service, no sanction was

required and any irregularity in granting sanction would not vitiate the

trial, even if the complainant turned hostile or no more all the

circumstantial evidence have to be looked into. After considering the

entire material placed before the sanctioning Authority, the respondent

No.1 issued the impugned G.O. for continuation of prosecution and

there was no illegality or infirmity in proceeding with the trial. The

disputed questions of fact could not be looked into in the writ petition

and prayed to dismiss the petition.

6. In the backdrop of the above contentions, now the issues that

emerge for consideration before this Court are:

i) Whether the impugned G.O.Ms.No.486 Revenue (Vigilance - V) Department dated 26.04.2011 to continue prosecution by cancelling its earlier order issued in G.O.Ms.No.1302 dated 20.10.2010 is sustainable and tenable?

ii) Whether the continuation of the proceedings in CC No.21 of 2015 on the file of Special Judge for SPE & ACB cases, Karimnagar is permissible?

7. Issue No.1:

Initially, Government accorded permission to prosecute the

petitioner-accused as per Government Memo No.41981/

Vig.V(1)/2008-4, dated 07.08.2009. On a perusal of the same, it

would disclose that the respondent No.1 had not mentioned the

material considered by it while giving permission to the respondent Dr.GRR,J

No.3 to prosecute the petitioner and only stated that after carefully

examining the final report in the reference cited, gave the said order.

The offences for which the permission for prosecution was given were

also not stated in it. In G.O.Ms. No.1302, dated 20.10.2010, the

respondent No.1 stated that on considering the representation

submitted by the petitioner that the amount of Rs.10,000/- received by

him was towards rental arrears and the de facto complainant as well as

accompanying witnesses in their statements under Section 164 Cr.P.C.

recorded before the Court of Special Judicial Magistrate of First Class,

Adilabad had given submissions as such on 20.09.2008, stated that

after examining the matter by taking all the aspects into consideration

decided to drop further action against the petitioner and requested the

respondent No.3 i.e. DG, ACB to address the Public Prosecutor to file

a petition before the Court under Section 321 Cr.PC. for withdrawal of

prosecution against the petitioner. The Deputy Commissioner of

Prohibition and Excise, Warangal, Division issued proceedings on

04.01.2011 to drop further action against the petitioner basing on the

G.O. issued by the Government vide G.O.Ms.No.1302 dated

20.10.2010.

8. The respondent No.3 addressed a letter to the Government

on 29.11.2010 for review of the earlier order issued by the

Government and the respondent No.1 in G.O.Ms.No.486, Revenue

(Vigilance - V) Department, dated 26.04.2011 (the impugned G.O.)

stated that:

Dr.GRR,J

"In the reference 4th read above, the Director General, Anti-Corruption Bureau has furnished a report and stated that the Accused Officer Sri G. Sudhakara Rao, Prohibition & Excise Inspector demanded the bribe amount from the complainant i.e. members of Toddy Tappers Society, Madapur

(v) to conduct an enquiry and to submit a report to the Prohibition & Excise Superintendent, Mancherial for granting licence to the newly establishing Toddy Tappers Society, Madapur (v) and accordingly the Accused Officer accepted the bribe amount on the date of trap. He further stated that when there is no society existing, the question of payment of rental arrears as contended by the Accused Officer does not arise. He has further stated that during the post trap proceedings, when the Accused Officer was questioned about the pendency of official favour, it was stated by him that the application of the complainant and other Toddy Tappers Society, Madhapura (v) was pending with him for enquiry and to submit a report to the Prohibition & Excise Superintendent, Mancherial. The Director General, Anti Corruption Bureau has finally stated that evidence was collected during the investigation to establish the guilt of the Accused Officer beyond all reasonable doubt and requested the Government to reconsider the matter and issue sanction for prosecution of Sri G. Sudhakara Rao, Prohibition & Excise Inspector (Retd.) to proceed further.

4. Government, after careful examination of the matter and keeping in view the report of the Director General, Anti Corruption Bureau, hereby decide to cancel the orders issued in the reference 3rd read above and to continue the prosecution sanctioned against Sri G. Sudhakara Rao, Prohibition & Excise Inspector (Retd.) in the reference 1st cited above."

9. Thus, the respondent No.1 changed its stand from time to

time without any fresh material on record.

10. Learned counsel for the petitioner relied upon the judgment

of the Delhi High Court in Ashok Kumar Aswal v. Union of India

& Ors.2 on the aspect that:

"For according sanction, authority has to apply its mind independently without any influence or pressure. In the absence of any fresh material CBEC granted sanction purely under influence of CBI and in total violation of established principles regarding grant of sanction. There is no material exists on record connecting the petitioner with criminal trial. Sanctioning authority must apply its mind to material before it. Mind of Sanctioning Authority should not be under pressure from any quarter nor there any external force to take a decision one way or the other. If discretion of not granting sanction is taken away, sanction becomes mechanical act and a nullity.

11 (2013) CCR 72 Dr.GRR,J

The Delhi High Court considered the judgment of the Hon'ble

Apex Court in the case of Whirlpool Corporation v. Registrar of

Trade Marks, Mumbai & Ors. [(1998) 8 SCC 46] wherein the

principles for granting sanction orders were stated by the Hon'ble

Apex Court as under:

"46.(a) Order granting sanction to prosecute in an administrative order amenable to judicial review under Article 226 of the Constitution of India.

(b) The Court within whose territorial jurisdiction sanction order has been passed shall have jurisdiction to examine legality, propriety and constitutionality of the Sanction Order.

(c) Sanction orders should be judicially considered at the earliest opportunity as otherwise the entire trial gets vitiated if at the end it is held by competent Court that the sanction order is a nullity in law; sanction is a condition precedent to prosecution and trial, hence questions in relation to validity of a sanction order has to be decided at the outset.

(d) Validity of a sanction order can be decided only by High Court under Article 226 of the Constitution of India. Trial Court will have no jurisdiction to examine whether the sanction order is malafide or bonafide and whether the same suffer from arbitrariness contrary to Article 14 and 21 of the Constitution. When a Sanction order is challenged on such grounds before High Court, it will have exclusive right, prerogative and duty to examine validity of an order passed by the sanctioning authority.

(e) In the absence of fresh material, the authority will have no powers to recall and revise the sanction order issued earlier; even fresh look at the earlier order required fresh material for the authority intending to differ from its earlier decision.

(f) The authority competent to grant sanction should be free from external influences and forces from any quarter whatsoever while exercising the discretion vested in it and it has to apply of own independent mind for generation of genuine objective satisfaction whether prosecution has to be sanctioned or not.

(g) Highlighting certain portion of the same material, which was placed earlier before the sanctioning authority, which rejected the request for sanction, cannot constitute fresh material and / or replace the burden of providing Dr.GRR,J

fresh material while requesting for revision of the earlier order.

11. He relied upon the judgment of the High Court of Allahabad

in Ravindra Kumar Sharma v. State and another3 wherein it was

held that:

"Subsequent change of stand by Government and accord of sanction for offence under Penal Code would amount to abuse of process of law and proceedings initiated for prosecution accused under Penal Code are quashed."

12. He relied upon the judgment of the High Court of

Karnataka in Shivarudraswamy v. State of Karnataka4 wherein it

was held that:

"4. As regards the submission of the learned counsel for the respondent that the question of validity of sanction can be raised only at the trial stage does not hold any water in view of the fact that the said issue involves a question of law and the facts of the present case would reveal that there are two orders passed by the competent sanctioning authority one refusing to sanction and the other according sanction. The question of law involved being whether or not the sanctioning authority had the power to review this question can always be gone into at any stage. In fact this Court is not probing into the validity aspect or the reasons assigned in the sanction order or the satisfaction of the sanctioning authority to refuse or accord sanction.

The learned counsel for the petitioner relies upon the judgment of this Court in the case of J.S.Sathyanarayana v. State, reported in 2000 (3) Kar LJ 27 wherein this Court has held that invalidity vitiates trial and conviction"

13. He also relied upon the judgment of the High Court of

Himachal Pradesh in Omkar Sharma v. State of H.P. and others5,

wherein it was held that:

"33.What follows from the aforesaid discussion is that appropriate authority who on consideration of all the material had refused to accord sanction to prosecute a public servant, has no power on re-consideration to review such an order and thereby according sanction to prosecute on the same material. It

2001 CRI. L. J. 2058

LAWS (KAR)-2008-2-73

2003 CRL. L. J. 1024 Dr.GRR,J

will be a totally different situation if any additional/fresh/new material is brought before the competent authority; that admittedly is not the situation in all the three cases nor is the case of any one of the respondents set out in their replies."

14. He relied upon the judgment of the High Court of Patna in

Madhusudan Mukherjee and anr. v. State of Bihar and Anr.6,

wherein it was held that:

"17... There is nothing in the sanction orders of 2006 to show as to what reasons have weighed with the sanctioning authority to come to a different conclusions on the basis of the same material s and without meeting the reasons which have been given in the earlier order dated 7-8-1995 refusing the sanction. The orders dated 20-1-2006 and 20-5-2006 according sanction for prosecution therefore suffer from the vice of non-application of mind, in the circumstances of the case, and are accordingly quashed in relation to the two petitioners."

15. He relied upon the judgment of the High Court of Bombay

(Nagpur Bench) in Anand Gopal Gurve v. State of Maharashtra7,

wherein it was held by relying upon the judgment of this Court in

Mohd.Iqbal Ahmed v. State of Andhra Pradesh [AIR 1979 SC 677]

that:

'22. In a case of Mohd. Iqbal Ahmed v. State of Andhra Pradesh, Their Lordships held that (para 3)

"3. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned."

Their Lordships therefore, observed that (para 3)

"It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction, and (2) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it.

2009 CRI. L. J. 4691

1992 CRI. L. J. 3064 Dr.GRR,J

Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. What the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same; any subsequent fact which may come into existence after the grant of sanction is wholly irrelevant."

16. He also relied upon the judgment of the Rajasthan High

Court in State of Rajasthan v. Munish Kumar Sharma & Ors.8 and

the judgment of this Court in K. Madhu Murthy v. National

Institute of Technology and others9 wherein the judgment of the

Hon'ble Apex Court in State of Himachal Pradesh v. Nishant Shareen

[I (2011) CCR 58] was extracted as follows:

"12. It is true that the Government in the matter of grant of or refusal to grant sanction exercises statutory power and that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us a sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorized to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may be no end to such statutory exercise.

13. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh material have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such a course.

II (2013) CCR 159 (DB) (Raj.)

2016 LawSuit(Hyd) 458 Dr.GRR,J

14. Insofar as the present case is concerned, it is not even the case of the appellant that fresh material were collected by the investigating agency and placed before the sanctioning authority for reconsideration and/or for review of the earlier order refusing to grant sanction. As a matter of fact, from the perusal of the subsequent order dated 15-3-2008 it is clear that on the same materials, the sanctioning authority has changed its opinion and ordered sanction to prosecute the respondent which, in our opinion, is clearly impermissible.

15. By way of footnote, we may observe that the investigating agency might have had legitimate grievance about the Order dated 27-11-2007 refusing to grant sanction, and if that were so and no fresh materials were necessary, it ought to have challenged the order of the sanctioning authority being not of continuing character could have been exercised only once on the same materials."

17. Thus, the Hon'ble Apex Court and the various High Courts

had reiterated the principle that in the absence of fresh material, the

Authority will have no power to recall and revise its earlier order.

Even fresh look at the earlier order required fresh material to differ

from its earlier decision.

18. The G.O.Ms.No.486 dated 26.04.2011 issued by the

respondent No.1 does not disclose any fresh material except the earlier

material filed by the respondent No.3 mentioned in the charge sheet.

The Government changed its stand from time to time without applying

its independent mind to the material on record. The respondent No.3

also had not challenged the order of the respondent No.1, when the

respondent No.1 decided to drop further action against the petitioner

vide G.O.Ms.No.1302 dated 20.10.2010. Thus, as stated by the

Hon'ble Apex Court in Nishant Shareen case unrestricted power of

review exercised by the Government would not bring finality to such

exercise. The Government kept changing its opinion on the same Dr.GRR,J

material from time to time without there being any end to such

statutory exercise. As such, the same was impermissible.

19. The judgments relied upon by the leaned Special Public

Prosecutor in Bairam Muralidhar v. State of Andhra Pradesh10 and

Abdul Wahab K. State of Kerala and others11 are not relevant as

they were pertaining to Section 321 Cr.P.C. relating to withdrawal

from prosecution, but not regarding sanction.

20. Learned Special Public Prosecutor relied upon the judgment

of the Division Bench of this Court in K. Srinivasulu v. Government

of A.P., rep. by its Prl. Secretary Home (SC.A) Dept., Hyderabad

and others12, wherein it was held that:

"22. It is not for the High Court, in Writ Proceedings, to examine the adequacy or otherwise of the material placed by the Anti-Corruption Bureau (ACB) before the sanctioning authority or to sit in appeal over the findings recorded by it in its report submitted to the Government requesting that sanction be accorded to prosecute the 4th respondent (R. Sundarajan v. State by D.S.P., SPE, CBI, Chennai (22) 2006 (4) Crimes 278). Whether or not the said report makes out a prima facie case for grant of sanction to prosecute the 4th respondent, for possessing assets far disproportionate to his known sources of income, is a matter for examination by the authority competent to accord sanction. We see no reason, therefore, to examine the conclusions of the ACB in its final report, or to adjudicate whether or not the 4th respondent possessed assets disproportionate to his known sources of income."

In the same judgment it was held that:

"15. The sanctioning authority must accord or refuse sanction with reference to the facts on which the proposed prosecution is to be based. It is desirable that these facts appear on the face of the sanction order (The State of Rajasthan v. Tarachand Jain (19) AIR 1973 SC 2131; Gokulchand "Dwakadas Morarka v. The King (AIR 1948 PC 82). The order of sanction must ex-

facie disclose that the sanctioning authority had considered the evidence and other material placed before it. (State (Anti Corruption Branch) v. R.C. Anand (2004 (2) ALT (Crl.) 59

(2014) 10 SCC 380

(2018) 18 SCC 448

2010 (2) ALT (Crl.) 147 (DB) (A.P.) Dr.GRR,J

(SC)). While the order of sanction need not contain detailed reasons, the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in that regard. Proper application of mind to the existence of a prima facie case regarding the commission of the offence is a precondition for the grant or the refusal to grant sanction."

21. The memo issued by the Government dated 07.08.2009 is

bereft of any reasons and the material considered by the competent

authority in granting permission to prosecute the petitioner. The said

memo would not disclose even the offences for which the sanction

was granted. The impugned G.O.Ms.No.486 issued by the respondent

No.1 dated 26.04.2011 also would lack details of the offences for

which sanction was granted except reiterating the contents of the

report given by the respondent No.3, which also would not disclose

any fresh material or evidence collected by the Investigating Agency.

The order would not disclose independent application of mind by the

Sanctioning Authority to change its stand from time to time for

according sanction to prosecute the petitioner-accused.

22. The contention of the learned Special Public Prosecutor

that as the petitioner-accused retired from service, no sanction was

required, does not hold valid as the Investigating Agency itself

addressed letters to the respondent No.1 and obtained sanction even

after the retirement of the petitioner by getting the earlier orders

cancelled. The Hon'ble Apex Court in Chittaranjan Das case (1

supra) held that:

"We are of the opinion that in a case in which sanction sought is refused by the competent authority, while the public servant is in service, he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction for Dr.GRR,J

prosecution under the Prevention of Corruption Act is necessary after the retirement of Public Servant. Any other view will render the protection illusory. Situation may be different when sanction is refused by the competent authority after the retirement of the public servant as in that case sanction is not at all necessary and any exercise in this regard would be action in futility."

23. As the respondent No.1 issued G.O. to continue the

prosecution against the petitioner on 26.04.2011 after his retirement

on 30.04.2009, the contention of the learned Special Public Prosecutor

would not stand to ground.

24. As such Issue No.1 is answered holding that

G.O.Ms.No.486 Revenue (Vigilance - V) Department dated

26.04.2011, issued by the respondent No.1 to continue prosecution

against the petitioner contrary to its earlier order without any fresh

material, is unsustainable.

25. Issue No.2:

In the result, the Writ Petition is allowed declaring the

G.O.Ms.No.486 Revenue (Vigilance - V) Department dated