Mohd. Jahangir vs The State Of Telangana
2022 Latest Caselaw 3331 Tel

       HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA

        CRIMINAL REVISION CASE No.71 OF 2022

JUDGMENT:

Challenge in this Criminal Revision Case is the order

that is rendered by the Court of Principal Special Judge for

trial of SPE and ACB Cases, Hyderabad in Crl.M.P.No.165

of 2015 in C.C.No.8 of 2014 dated 18.10.2021.

2. The petitioner is arrayed as accused in C.C.No.8 of

2014 wherein proceedings in the said Calendar Case were

initiated basing on the allegation that he committed

offences punishable under Sections 7, 13(1)(d) read with

Section 13(2) of the Prevention of Corruption Act, 1988. On

taking cognizance of the offences against him by the

Special Court, the petitioner moved an application for

discharge. The said application vide Crl.M.P.No.165 of

2015 stood dismissed through order dated 18.10.2021.

Aggrieved by the same, the petitioner preferred the present

Criminal Revision Case.

Dr.CSL, J

3. Heard the submission of Sri Badeti Venkataratnam,

the learned counsel for the petitioner and the learned

Standing Counsel-cum-Special Public Prosecutor for ACB.

4. The case of the prosecution in capsule is that the

sister of the defacto complainant applied for water

connection for her house and in that regard, for processing

the application filed by her, the petitioner/accused, who

was working as Work Inspector by then, demanded a sum

of Rs.14,000/-, inclusive of taking a Demand Draft in

favour of Water Board, towards fee payable for water

connection. On request, the petitioner/accused reduced

the amount from Rs.14,000/- to Rs.10,000/-. He informed

that a Demand Draft has to be taken for Rs.6,538/- for

sanction of water connection and that the remaining

amount would be taken by him as bribe. On further

request, the bribe amount was reduced to Rs.2,000/- and a

sum of Rs.6,600/- was ordered to be paid for Demand

Draft including Demand Draft making charges. On a

complaint given, a trap was laid.

5. The main grievance that is exhibited by the

petitioner/accused is that the prosecution initiated against Dr.CSL, J

him is basing on the sanction order which was issued by

the Managing Director, Hyderabad Metro Water Supply and

Sewerage Board, Hyderabad (for brevity "HMWS&SB")

dated 21.4.2014. But, two months prior to the issuance of

the said proceedings, the Government issued proceedings

dated 24.02.2014 deciding to initiate departmental enquiry

instead of prosecution against him and therefore, the

subsequent sanction proceedings dated 21.4.2014 for

prosecution against him is bad in law. Thus, the limited

question involved in this Criminal Revision Case is:

Whether the proceedings issued by the Managing Director, HMWS&SB, Hyderabad, vide proceedings No.9138/B3/2010, dated 21.4.2014, wherein and whereby sanction was accorded for prosecution of the petitioner/accused, is valid in the eye of law.

6. It is not in dispute that the respondent/complainant

initiated prosecution against the petitioner/accused by

pressing the charge sheet into service that he committed

offences punishable under Sections 7, 13(1)(d) read with

Section 13(2) of the Prevention of Corruption Act, 1988 on

the basis of the sanction order, vide proceedings Dr.CSL, J

No.9138/B3/2010, dated 21.4.2014 that was issued by the

Managing Director, MHWS&SB, Hyderabad.

7. The whole contention of the petitioner/accused is

that two months prior to the issuance of the above referred

proceedings, the Government of A.P., Municipal

Administration and Urban Development Department issued

proceedings dated 24.02.2014 deciding to initiate

departmental enquiry instead of prosecution against him

and therefore, the subsequent proceedings issued for

prosecution is bad in law. In this regard, the learned

counsel for the petitioner/ accused submitted that the set

of facts that were taken into consideration for issuance of

the proceedings dated 24.02.2014, whereby a decision was

taken to initiate departmental enquiry instead of

prosecution against the petitioner/accused and the facts

and circumstances basing on which subsequent

proceedings dated 21.4.2014 were issued for prosecution of

the petitioner/accused are one and the same and therefore,

exhibiting contrary views and thereby, driving the

petitioner/accused to unnecessary hardship is bad in law.

Dr.CSL, J

Learned counsel further contended that no further

investigation was conducted between the interregnum

period and no additional material or information was

brought on record and therefore, taking a different view has

to be condemned.

8. Contradicting the said submission, learned Standing

Counsel-cum-Special Public Prosecutor for ACB contended

that the Managing Director, HMWS&SB, Hyderabad is the

competent authority to remove the petitioner/accused and

the said authority, after carefully examining the material

placed before him and on the basis of final report in respect

of the allegations laid, issued proceedings dated 21.4.2014

for prosecution of the petitioner/accused before the Court

of law and accordingly, charge sheet was filed and

therefore, no error whatsoever is committed by the

Department of Anti Corruption Bureau. The learned

Special Public Prosecutor also contended that the

petitioner/accused had got enough time to represent before

the Anti Corruption Bureau about the earlier proceedings

issued by the Government and the Anti Corruption Bureau Dr.CSL, J

was not aware of the earlier proceedings dated 24.02.2014

issued by the Government, wherein a decision was taken

for initiating departmental enquiry instead of prosecution

against the petitioner/accused. The learned Special Public

Prosecutor further contended that when the appropriate

authority has accorded sanction basing on which

prosecution was initiated against the petitioner/accused, it

is not desirable for the petitioner/accused to seek for

discharge and in case, the charges that would be framed

against him could not be proved by the prosecution, he

would automatically get acquittal and therefore, agitation

in this regard before the Special Court as well as before the

High Court is unjustifiable. The learned Standing Counsel

also stated that the Anti Corruption Bureau has nothing to

do with the proceedings dated 24.02.2014 issued by the

Government as the same were not communicated to the

Anti Corruption Bureau and therefore, the proceedings

issued by the Managing Director, HMWS&SB, Hyderabad

holds good.

Dr.CSL, J

9. Vehemently opposing the said submission, the

learned counsel for the petitioner/accused stated that the

earlier proceedings dated 24.02.2014, by which a decision

was taken to initiate departmental enquiry instead of

prosecution against the petitioner/accused, were issued by

the Principal Secretary to Government who is higher in

rank and authority to that of the Managing Director,

HMWS&SB, Hyderabad and in the light of the said

proceedings, the Managing Director, HMWS&SB,

Hyderabad has got no authority or power to take a contrary

view and therefore, the subsequent proceedings dated

21.4.2014 are unsustainable.

10. The learned counsel for the petitioner/accused

further contended that according sanction for prosecution

is not an empty formality and it is the basis for the Anti

Corruption Bureau to initiate criminal proceedings against

the petitioner/accused and therefore, the proceedings

issued according sanction for prosecution of the

petitioner/accused formed basis for the case to stand.

11. The Prevention of Corruption Act, 1988 is a

legislation aimed at preventing corruption among the Dr.CSL, J

public servants so that they adhere to the norms and

discharge their duties without accepting or demanding any

gratification or illegal remuneration or taking undue

advantage of their position.

12. Section 19 of the Prevention of Corruption Act, 1988

envisages that previous sanction is necessary for

prosecution and that, no Court shall take cognizance of

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

that are alleged to have been committed by a public servant

except with the previous sanction.

13. For proper understanding, the said provision is

extracted as under:

"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,--

(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 Dr.CSL, J

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."

14. The fact that remains undisputed is that grant or

refusal of sanction for prosecution is not an empty

formality and that the act of according sanction for

prosecution must be preceded by proper application of

mind by the competent authority.

15. Making a submission that in the case on hand, the

competent authority as well as the officials of the Anti

Corruption Bureau have proceeded without application of

mind and thereby, violated the mandate of law, the learned

counsel for the petitioner/accused relied upon the decision

that is rendered by the Honourable Apex Court in the case

between the State of Himachal Pradesh Vs. Nishant

Sareen1. In the said case, the Principal Secretary (Health)

on the basis of the material placed before her and on

examination of the case found no justification in granting

sanction to prosecute the accused officer. However, the

Vigilance Department again took up the matter with the

2011(2) ALD (Crl.) 895 (SC) Dr.CSL, J

Principal Secretary (Health), reconsidered the matter and

thereafter, sanction was granted to prosecute the accused

officer. Basing on the aforementioned facts and discussing

the law governing the field, the Honourable Apex Court at

para 8 of the order observed as follows:-

"The object underlying Section 19 is to ensure that a public servant does not suffer harassment on false, frivolous, concocted or unsubstantiated allegations. The exercise of power under Section 19 is not an empty formality since the Government or for that matter the sanctioning authority is supposed to apply its mind to the entire material and evidence placed before it and on examination thereof reach conclusion fairly, objectively and consistent with public interest as to whether or not in the facts and circumstances sanction be accorded to prosecute the public servant."

16. Proceeding with the case, the Hon'ble Apex Court at

para 11 of the order held as under:-

"11. Recently, in the case of State of Punjab and Anr. v. Mohammed Iqbal Bhatti {2010 AIR SCW 1186} this Court had an occasion to consider the question whether the State has any power of review in the matter of grant of sanction in terms Dr.CSL, J

of Section 197 of the Code. This Court observed as under:

7. Although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the same, however, would not mean that power once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the concerned authority is imperative. The legality and/or validity of the order granting sanction would be subject to review by the criminal courts. An order refusing to grant sanction may attract judicial review by the Superior Courts. Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidences must be considered by it. The sanctioning authority must apply its mind on such material facts and evidences collected during the investigation. Even such application of mind does not appear from the order of sanction, extrinsic evidences may be placed before the court in that behalf. While granting sanction, the authority cannot take into consideration an irrelevant fact nor can it pass an order on Dr.CSL, J

extraneous consideration not germane for passing a statutory order. It is also well settled that the Superior Courts cannot direct the sanctioning authority either to grant sanction or not to do so. The source of power of an authority passing an order of sanction must also be considered."

17. Continuing the same, at paras 12 and 13 of the

order the Hon'ble Apex Court observed as follows:-

"12. It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean 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 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 authorised to exercise power of sanction, the matter concerning sanction may be reopened by Dr.CSL, J

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 not be any end to such statutory exercise. 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 materials 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 course.

13. Insofar as the present case is concerned, it is not even the case of the Appellant that fresh materials 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 March 15, 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."

Dr.CSL, J

18. Making a submission that the facts and

circumstances under which the above decision was

rendered are distinguishable to the facts and

circumstances of the present case, the learned Special

Public Prosecutor submitted that when the earlier order

refusing to accord sanction was issued, one political party

was ruling the State and when the Government changed,

another order was issued according sanction for

prosecution and therefore, the analogy applied in the said

decision cannot be applied to the facts of the present case.

The learned counsel for the petitioner/accused submitted

that such facts are no where narrated in the decision

referred supra.

19. Keeping aside the political drama due to change of

Governments, this Court is of the considered view that

even if the same Government issues proceedings

contradictory to each other, the same would be amenable

for challenge before the Court of law.

20. Making his submission that the proceedings issued

without application of mind is unsustainable and that the Dr.CSL, J

earlier proceedings issued by the Government wherein

sanction was not accorded for prosecution of the

petitioner/accused was due to non-application of mind, the

learned Special Public Prosecutor relied upon the decision

of a Division Bench of this Court in the case between

K.Srinivasulu Vs. Government of A.P.2, wherein

discussing the legal position at length at para 15 of the

order, it is observed as follows:-

"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. Further, discussing the requirement of obtaining

sanction and envisaging that grant of sanction is not an

idle formality, the Court at paras 10 to 13 of the order held

as under:-

"10.The requirement of obtaining sanction is to ensure that no public servant is unnecessarily

2010(2) ALT (Crl.) 147 (DB)(AP) Dr.CSL, J

harassed. Such protection is, however, not absolute or unqualified. While a public servant should be not subjected to harassment, genuine charges and allegations should be allowed to be examined by the Court. (State Vs. Krishanchand Khushalchand Jagtiani {AIR 1996 SC 1910}). The object of the provision for sanction is also that the authority giving the sanction should be able to consider for itself the evidence before it comes to the conclusion that the prosecution, in the circumstances, be sanctioned or forbidden.

(Jaswant Singh v. State of Punjab) {AIR 1958 SC 124}.

11. Sanction lifts the bar for prosecution. Grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act. (Mohd. Iqbal Ahmed v. State of A.P. {AIR 1979 SC677}. It is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent, not a shield for the guilty. (Mansukhlal Vithaldas Chauhan Vs. State of Gujarat { 1997(7) SCC 622}.

12. An order of sanction should not be construed in a pedantic manner. The purpose for which an order of sanction is required to be passed should always be borne in mind. 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.

Dr.CSL, J

(State of Karnataka v. Ameerjan {(2007) 11 SCC 273}.

13. Before sanction is granted, under Section 19 of the Prevention of Corruption Act, the competent authority should peruse the concerned documents and come to a definite conclusion that it is a case for prosecution or otherwise. It will be a futile exercise if the sanction order is passed in a routine manner. (Mohd.Jaffrullah Khan v. State {2000 (2) ALT (Crl.) 9 (AP)}. The authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. The Legislature has conferred on the authority, competent to remove the public servant from office, the power to grant sanction for the reason that he is competent to judge whether, on the facts alleged, there has been an abuse or misuse of the office held by the public servant. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether, prima facie, it has been so done. (R.S. Nayak Vs. A.R.Antulay {AIR 1984 SC 684}."

22. Thus, even the decision that is relied upon by the

learned Special Public Prosecutor also narrates the fact

that the order of sanction must demonstrate that there had Dr.CSL, J

been proper application of mind on part of the sanctioning

authority. Undoubtedly, the sanctioning authority should

go through all the relevant documents that are produced by

the Anti Corruption Bureau for perusal and thereafter, it

has to come to a definite conclusion whether to accord

sanction or not.

23. The learned counsel for the petitioner/accused, in

this regard, also relied upon the decision that is rendered

by this combined High Court in the case between Mohd.

Aleemuddin Vs. State of A.P3 wherein discussing about

the same set of facts as that of the present case, the Court

at para 15 of the order observed as follows:-

"I would like to state that the earlier order passed by the competent authority only directing departmental enquiry and not to initiate any criminal prosecution against the petitioner and the subsequent order passed by the competent authority according sanction to prosecute the petitioner are on the very same material.

Moreover, in the earlier order, the sanctioning authority having considered the entire material placed before it in the form of final report filed by the A.C.B. specifically mentioned that it seems to

2014 (1) ALD (Crl.) 120 (AP) Dr.CSL, J

be a case of foisted trap. Only after the letter dated 29.10.2010 addressed by the Director General, A.C.B. to reconsider the final report of A.C.B. dated 07.02.2008 passed the second order directing the sanction to prosecute the petitioner. Absolutely no fresh material was placed before the sanctioning authority and no special reasons were assigned for according sanction to prosecute the petitioner in the second order. It would clearly appear to me that the sanctioning authority while passing second order was unable to apply its independent mind on account of the request made by the Director General, A.C.B. to reconsider the final report and has not exercised its discretion properly while according sanction contrary to its earlier order. The sanction order, therefore, seems to have been passed mechanically without application of mind. Further, as per the judgments relied on by the learned counsel appearing for the petitioner, the sanctioning authority cannot revise or review its own order on the same material. In the present case, the sanctioning authority reviewed its own order on the same material. It also has not assigned any cogent reasons as to why it took a different stand having earlier been thoroughly convinced that the case seems to be a case of foisted trap and that the petitioner in his explanation gave cogent and convincing reasons. This Court while acting under Section 482 Cr.P.C.

Dr.CSL, J

if reaches the absolute certainty that the trial would only be a futile exercise, for the sanction being void, making the accused to undergo ordeal of trial would be an abuse of process of law and it would result in miscarriage of justice."

24. In the case on hand, it is clear that the Principal

Secretary to Government vide proceedings No.25287/

Vig.I(2)/2010-6 dated 24.02.2014 came to a conclusion to

initiate departmental enquiry instead of prosecution

against the petitioner/accused. Paras 4 and 5 of the said

proceedings are extracted as under:

"4. Government after careful examination of the matter, have decided to initiate departmental enquiry instead of prosecution against Sri Mohd. Jahangir, Technical Officer, Hyderabad Metro Water Sewerage Board, Hyderabad.

5. The Director General, ACB, Hyderabad is therefore, requested to withdraw the prosecution orders of Sri Mohd. Jahangir, Technical Officer, Hyderabad Metro Water Sewerage Board, Hyderabad and furnish draft article of charges for initiating departmental enquiry against the AO, immediately."

25. For the reasons best known, within two months i.e.,

on 21.4.2014, the Managing Director, HMWS&SB, Dr.CSL, J

Hyderabad, through proceedings No.9138/B3/2010

accorded sanction for prosecution of the same person i.e.,

the petitioner/accused basing on the same set of facts and

the same material that is produced. Para 7 of the said

proceedings is extracted as under:-

"7. Now, therefore in exercise of the powers conferred by clause (c) of sub section(1) of Section 19 of the Prevention of Corruption Act, 1988 (Central Act 49 of 1988), I Sri J.Syamala Rao, Managing Director, HMWS&SB hereby accord sanction for prosecution of Sri Md. Jahangir S/o Md. Osman, Technical Officer (Works), HMWSSB, for the offences punishable under Sections 7, 13(2) r/w 13(1) (d) of the Prevention of Corruption Act, 1988 and for any other cognate offences punishable under any other provisions of law for the time being in force in respect the above said acts and also for taking cognizance of the said offence by the court of competent jurisdiction."

26. Though in the counter-affidavit filed and during the

course of submission, the learned Special Public

Prosecutor contended that the Director General, Anti

Corruption Bureau had no knowledge about the earlier

proceedings issued by the Government dated 24.02.2014, Dr.CSL, J

this Court is not inclined to appreciate the said

submission.

27. A perusal of the said proceedings reveals that basing

on the material produced by the Director General, Anti

Corruption Bureau, Hyderabad through letter dated

19.3.2013, the said proceedings were issued. Further, the

said proceedings discloses that a copy of the same was

marked to the Director General, Anti Corruption Bureau.

Subsequently, the proceedings dated 21.4.2014 were

issued by the Managing Director, HMWS&SB, Hyderabad.

But, when the earlier proceedings issued by the Principal

Secretary to Government dated 21.02.2014 is perused, this

Court finds that a copy of the same was marked to the

Managing Director, HMWS&SB, Hyderabad also. When the

said proceedings by which a decision was taken by the

Government to initiate departmental enquiry instead of

prosecution against the petitioner/accused was

communicated to the Managing Director, HMWS&SB,

Hyderabad, it is not known how subsequently the

Managing Director, HMWS&SB, Hyderabad through Dr.CSL, J

proceedings dated 21.4.2014 accorded sanction for

prosecution of the petitioner/accused. A copy of the said

proceedings was also marked to the Director General, Anti

Corruption Bureau. When two contradictory proceedings

were before the Director General, Anti Corruption Bureau,

why the said authority has not taken steps to get

clarification or taken legal steps required under law is not

mentioned anywhere. It is not the case of the respondent

that further investigation was done during the interregnum

period i.e., from 24.02.2014 to 21.4.2014 or that, other

relevant material was produced before the Managing

Director, HMWS&SB, Hyderabad by which he came to a

different opinion or has taken a different decision. No

doubt, grant or refusal to grant sanction is an exclusive

prerogative. That would not mean that the power granted

by the Prevention of Corruption Act, 1988 can be exercised

at the whims and fancies of the concerned. However, it

cannot be said that the order refusing to accord sanction

cannot be revoked. It can be revoked only under special

circumstances and sanction can be accorded through

subsequent proceedings only if additional material was Dr.CSL, J

brought on record by which a different opinion could be

taken. But, in the case on hand, absolutely no fresh

material was placed before the sanctioning authority. No

special reasons whatsoever were assigned for according

sanction to prosecute the petitioner/accused. The earlier

proceedings which were communicated demonstrate in

clear terms that after careful consideration of the material

available on record, the Principal Secretary to Government

has taken a decision to initiate departmental enquiry

against the petitioner/accused, refusing to accord sanction

for prosecuting him though the Director General, Anti

Corruption Bureau has made such a request.

28. The points narrated above were also taken into

consideration by the learned Principal Special Judge for

trial of SPE and ACB Cases, Hyderabad in the impugned

order. However, the learned judge opined that in similar

circumstances, in the cases filed under Section 482

Cr.P.C., the proceedings were quashed by the High Court

and the Honourable Apex Court and therefore, that power

cannot be exercised by the Special Court for quashing the Dr.CSL, J

proceedings. With the said observations, the request of the

petitioner/accused seeking discharge was negatived.

29. This Court, by all the discussion that went on supra,

is of the view that the act of the Managing Director,

HMWS&SB, Hyderabad, in according sanction for

prosecution of the petitioner/accused, as required under

Section 19 of the Prevention of Corruption Act, 1988, itself

is bad in law. No fruitful purpose would be served even if

the proceedings are permitted to be continued against the

petitioner/accused. Therefore, this Court is of the view that

this Criminal Revision Case is liable to be allowed by

setting aside the order under challenge.

30. Resultantly, the Criminal Revision Case is allowed.

The order that is rendered by the Court of Principal Special

Judge for trial of SPE and ACB Cases, Hyderabad in

Crl.M.P.No.165 of 2015 in C.C.No.8 of 2014 dated

18.10.2021 is set side. Consequently, the

petitioner/accused is discharged of the offences under

Sections 7, 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act, 1988.

Dr.CSL, J

31. Pending Miscellaneous Petitions, if any, shall stand

closed.

_____________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA 05.07.2022 dr