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* THE HON’BLE SRI JUSTICE GODA RAGHURAMAND
THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN
+ WRIT PETITION No. 14967 of 2009
% 26-02-2010 # Sri K.Srinivasulu …. Petitioner Vs. $ 1. The Government of A.P. rep.By its Prl. Secretary,Home (SC.A)Dept. Block No.ASecretariat, Hyderabad and 3 others .. Respondents ! Counsel for the petitioners – Sri R.N.Hemendranath Reddy
^ Counsel for respondent No.1: Addl. Advocate General
Counsel for respondent No.2 : V.Ravi Kiran Rao
Counsel for respondent No.4 : Sri P. Gangaiah Naidu < Gist: >Head Note ?[1] AIR 1958 SC 1482 1996 Crl.L.J. 29623 2009(3) ALT 7704 1997(7) SCC 622
5 AIR 2005 SC 5406 2007(5) ALT 7037 1958 SCR 762 = AIR 1958 SC 1248 (1978) 4 SCC 32 = AIR 1978 SC 1749 (1984) 2 SCC 183 = AIR 1984 SC 68410 (1986) 2 SCC 679 = AIR 1987 SC 53711 (1995) 6 SCC 225 = AIR 1996 SC 18612 (1996) 4 SCC 472 = AIR 1996 SC 191013AIR 2004 SC 51714AIR 1979 SC 67715(2007) 11 SCC 273162000(4) ALD 66517AIR 1995 SC 785181992 Suppl (1) SCC 22219AIR 1973 SC 21312075 Ind App 30 = AIR 1948 PC 8221(2004) 4 SCC 615222006(4) Crimes 27823(1997) 8 SCC 7324(2007) 4 SCC 38025(1991) 4 SCC 54261993(2) SCC 703271987(1) SCC 22728(2003) 7 SCC 546 29(2004) 11 SCC 130(2001) 6 SCC 584
31(1998) 1 SCC 226
THE HON’BLE SRI JUSTICE GODA RAGHURAMAND
THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION No. 14967 of 2009 ORDER:(Per: The Hon’ble Sri Justice Ramesh Ranganathan)
This writ petition is filed in public interest questioning the action of the 1st
respondent in not according sanction to the 2nd respondent to prosecute the 4th
respondent for offences punishable under Section 13(1)(e) read with 13(2) of the
Prevention of Corruption Act, 1988.
Facts, in brief, are that the 2nd respondent Anti-Corruption Bureau (ACB)
registered a case in Crime No. 8/ACB-CIU-HYD/2006 on 10.11.2006 against the
4th respondent for the offence under Section 13(1)(e) read with Section 13(2) of
the Prevention of Corruption Act, 1988. After obtaining search warrants from the
Principal Special Judge for SPE & ACB Cases, Hyderabad simultaneous searches
were conducted on the residential premises of the 4th respondent and in his office
room. Certain incriminating documents were seized. The 1st respondent placed
the 4th respondent under suspension vide G.O.Rt. No. 90 Home (SC.A) Dept,
dated 22.11.2006. Pursuant to a preliminary report submitted by the 2nd
respondent on 12.12.2006, and on receipt of authorization from the 1st respondent,
an application was moved and, on permission being accorded by the Principal
Special Judge for SPE & ACB Cases, Hyderabad, the properties of the 4th
respondent were attached. On the representation of the 4th respondent the 1st
respondent, vide G.O.Rt. No.90 dated 18.01.2008, reinstated him into service
pending finalization of the ACB enquiry. On completion of investigation the 2nd
respondent, vide proceedings in Rc. No.204/RCA-CIU/2006 dated 06.08.2008,
submitted the final report to the 1st respondent wherein he recorded a finding that
the 4th respondent had acquired assets worth Rs.43,87,669.71/- disproportionate
to his known sources of income. The draft sanction order, the imputations of
misconduct and the list of witnesses and documents were enclosed to the said
report and the 1st respondent was requested to accord sanction for the
prosecution of the 4th respondent.
The 1st respondent, vide G.O.Ms. No.25 Home (SC.A) Dept, dated
15.01.2009, directed initiation of a departmental enquiry against the 4th
respondent. The 2nd respondent was directed to furnish the draft articles of
charges, the statement of imputations of misconduct and the list of witnesses and
documents etc., for initiating departmental action. Since G.O.Ms. No.25 dated
15.01.2009 made no mention, regarding sanction for prosecution of the 4th
respondent, the 2nd respondent, vide letter in Rc. No.204/RCA-CIU/2006 dated
02.02.2009, requested the 1st respondent to reconsider the matter and issue
revised orders according sanction for prosecution as the 4th respondent, in his
view, did not deserve lenient treatment. However the 1st respondent, by memo
No.1843/SC.A/A1/2006-11 dated 29.04.2009, reiterated the orders issued earlier in
G.O.Ms. No.25 dated 15.01.2009. Thereafter a final report was filed in the Court
of the Principal Special Judge for SPE & ACB Cases, Hyderabad on 16.07.2009
requesting that orders be issued for closure of the F.I.R. and return of the seized
records and documents. The Principal Special Judge for SPE & ACB Cases,
Hyderabad, by order in Application No.622 of 2009 in Crime No.8 of 2006 dated
31.07.2009, accepted the final report, closed the F.I.R and directed that the seized
records be returned to the investigating officer.
Detailed affidavits, counter affidavits and additional affidavits have been
filed by the petitioner and the respondents in this writ petition. Oral submissions
were made by Sri R.N. Hemendranath Reddy, Learned Counsel for the petitioner,
the Learned Additional Advocate General appearing on behalf of the State
Government, Sri V. Ravikiran Rao, Learned Counsel appearing for the 2nd
resondent Anti-couuption Bureau and Sri P. Gangaiah Naidu, Learned Senior
Counsel appearing for the 4th respondent.
The rival contentions urged before this Court can, conveniently, be
classified as under:-
SANCTION ORDER – IS IT BEREFT OF REASONS? DOES IT ALSO SUFFERFROM NON-APPLICATION OF MIND?
Sri R.N. Hemendranath Reddy, learned Counsel for the petitioner, would
submit that refusal of the 1st respondent to accord sanction for prosecuting
officers such as the 4th respondent, who possessed assets far disproportionate to
their known sources of income, rendered the efforts made by the ACB & Vigilance
Commission futile and enabled such corrupt officers to go scot free; G.O.Ms.
No.25 dated 15.01.2009 and Memo No.1843 dated 29.04.2009 issued by the 1st
respondent do not contain reasons for not according sanction; the 1st respondent
did not apply its mind to the matter of according sanction and committed grave
illegality in not according sanction to prosecute the 4th respondent; it was not open
to the sanctioning authority to judge the truth of allegations made against the
accused; sanction could not be withheld in a mechanical manner and if officers,
who amassed disproportionate wealth and assets, were allowed to escape the
clutches of the law as a result of such illegal and unjustifiable acts of the
Government it would encourage others to continue indulging in corrupt activities;
failure on the part of the 1st respondent to accord sanction to prosecute corrupt
officials, against whom adequate evidence was gathered during investigation, was
a colourable exercise of power. Learned Counsel would rely on Indu Bhusan
Chatterjee v. State of West Bengal[1] and Jagjit Singh v. The State of
Punjab[2].
The Learned Additional-Advocate General, appearing on behalf of the 1st
respondent, would contend that it was well within the powers of the Government
not to accord sanction; the fourth respondent had not been let off as departmental
proceedings had been initiated against him; the petitioner could not dictate that
sanction should be accorded as these were matters within the sole discretion of
the 1st respondent; and the 1st respondent had applied its mind to the material on
record and had passed a reasoned order refusing to accord sanction. He would
rely on M. Satyanarayana Raju v. The Union of India rep., by its Secretary Law
and Legislative Affairs[3] and Manusukhlal Vithaldas Chauhan v. State of
Gujarat[4].
Sri P. Gangaiah Naidu, Learned Senior Counsel appearing for the 4th
respondent, would submit that the Government was of the opinion that prosecution
was not necessary and instead disciplinary action could be taken for all the
charges; and the 1st respondent had applied its mind and had rightly refused to
accord sanction. Learned Senior Counsel would rely on Manusukhlal Vithaldas
Chauhan4; Dattaraj Nathuji Thaware v. State of Maharashtra[5] and D. Siva
Prasad v. Government of Andhra Pradesh[6].
Sri V. Ravikiran Rao, Learned Counsel for the 2nd respondent, would submit
that the order according, or refusing to accord, sanction was an administrative and
not a quasi-judicial order and that the 4th respondent was not entitled to an
opportunity of being heard before a decision was taken by the Government
whether or not to accord sanction. Learned counsel would rely on Jaswant Singh
v. State of Punjab[7]; Parmanand Dass v. State of A.P.[8]; R.S. Nayak v. A.R.
Antulay[9]; Comptroller and Auditor-General of India v. K.S.
Jagannathan[10]; Supdt. of Police (C.B.I.) v. Deepak Chowdhary[11]; State v.
Krishanchand Khushalchand Jagtiani[12] and State of M.P. v. Awadh Kishore
Gupta[13].
The requirement of obtaining sanction is to ensure that no public servant is
unnecessarily 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. (Krishanchand
Khushalchand Jagtiani12). 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 Punjab7).
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[14]). 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 Chauhan4).
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.
(State of Karnataka v. Ameerjan[15]).
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[16]). 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. Nayak9).
What is material at the time of grant of sanction is that the necessary facts,
collected during investigation, constituting the offence are placed before the
sanctioning authority and it has considered the material. (Deepak Chowdhary11).
Consideration implies application of mind. Ordinarily the order of sanction must
ex-facie disclose that the sanctioning authority had considered the evidence and
other material placed before it. (Jaswant Singh7; State of West Bengal v.
Mohammed Khaliti[17]; and State of Bihar v. P.P. Sharma[18]; Mansukhlal
Vithaldas Chauhan4).
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]; Gokulchand Dwarkadas Morarka v. The King[20]). 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 (Dr)[21]). 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. (P.P. Sharma18).
G.O.Ms.No.25 dated 15.1.2009 notes the events preceding the request for
accord of sanction, and to the representation submitted by the 4th respondent on
9.9.2008. The conclusion of the 1st respondent, as recorded in the said G.O,
reads as under:
“6. Government after careful examination of the matter in detail and keeping in view of
contention raised by the Accused Officer in his representation and proposal of the
Director General, Anti Corruption Bureau, Andhra Pradesh, Hyderabad, in the reference
7th read above, have decided and hereby ordered to initiate Departmental enquiry
against the Accused Officer Sri Chandragiri Yesuratnam, Deputy Inspector General
(Non-Cadre), Special Protection Force, Hyderabad.
7. The Director General, Anti Corruption Bureau, Andhra Pradesh, Hyderabad, is,
therefore, requested to furnish the draft articles of charges, statement of imputations,
witnesses and documents etc., for initiating departmental action against the Accused
Officer Sri Chandragiri Yesuratnam, Deputy Inspector General (Non-Cadre), Special
Protection Force, Hyderabad.”
The memo dated 29.4.2009 records the request made by the 2nd
respondent for reconsideration and thereby the 1st respondent informed the 2nd
respondent that the points raised by him were re-examined by the Government in
detail and the orders issued, vide G.O.Ms.No.25 dated 15.1.2009, were
reiterated. The reasons for the government refusing to accord sanction are not
discernable either from G.O.Ms.No.25 dated 15.1.2009 or the Memo of the 1st
respondent dated 29.4.2009.
The impugned G.O. does not disclose that the authority had arrived at the
prima facie satisfaction that the relevant facts, referred to in the report submitted
by the Anti-Corruption Bureau, does not constitute an offence under the
Prevention of Corruption Act, 1988. It does not also reflect application of mind to
the existence or otherwise of a prima facie case regarding commission of the
offence, under Section 13(1)(e) of the Prevention of Corruption Act, 1988, by the
4th respondent. The impugned order is bereft of reasons. While the Government
has the discretion to grant or withhold sanction, (Gokulchand Dwarkadas
Morarka20; Mansukhlal Vithaldas Chauhan4), such discretion should be shown
not to have been affected by extraneous considerations. (Mansukhlal Vithaldas
Chauhan4). Exercise of discretion by the competent authority, to refuse or
accord sanction, must be in accordance with law and, as the competent authority
is required in law to assign reasons why it did not consider it necessary to accord
sanction for prosecution, exercise of discretion in the present case is illegal.
G.O.Ms. No.25 dated 15.01.2009 does not even state that sanction was being
refused. All that the G.O. records is that the Government had decided to initiate a
departmental enquiry against the 4th respondent. Both the Learned Additional
Advocate General and Sri P. Gangaiah Naidu would submit that, since the
Government had directed that disciplinary proceedings be initiated against the 4th
respondent, it must be inferred that the Government had rejected the request of
the Anti-Corruption Bureau for grant of sanction.
There must be a clear recital in the sanction order that sanction, for
prosecution under the Prevention of Corruption Act, 1988, is being accorded or
refused. The memo dated 29.04.2009 merely reiterates the order issued in
G.O.Ms. No.25 dated 15.01.2009 and both these proceedings do not explicitly
state that sanction for prosecution of the 4th respondent, under the Prevention of
Corruption Act, 1988, was being refused. It is evident, therefore, that the
impugned order also suffers from non-application of mind.
DOES THE REPORT SUBMITTED BY THE ACB ESTABLISH THAT THE 4TH
RESPONDENT HAS ASSETS DISPROPORTIONATE TO HIS KNOWNSOURCES OF INCOME?
Sri P. Gangaiah Naidu, learned Senior Counsel, would make a detailed
analysis of the final report of the Anti-Corruption Bureau in support of his
submission that the 4th respondent had established that his assets were not
disproportionate to his known sources of income. Learned Senior Counsel would
submit that the ACB has failed to take into account the legitimate income derived
by the 4th respondent; and the expenditure incurred by him was inflated to justify
the conclusion that he possessed assets disproportionate to his known sources of
income.
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. Sundararajan v. State by D.S.P., SPE, CBI,
Chennai[22]). 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.
CAN MATERIAL, OTHER THAN THOSE ENCLOSED ALONG WITH THEREQUEST FOR SANCTION, BE EXAMINED BY THE SANCTIONINGAUTHORITY?
Sri P. Gangaiah Naidu, learned Senior Counsel, would submit that the then
Chief Minister had, by endorsement dated 11.12.1988, rejected the A.C.B’s
request for sanction to prosecute the 4th respondent on the ground that the
petitioner had taken permission for the purchase and sale of all the properties
which were the subject matter of the ACB report. Learned Senior Counsel would
submit that, in the light of the endorsement of the then Chief Minister dated
11.12.2008 rejecting sanction, even if G.O.Ms. No.25 dated 15.01.2009 is held to
be bereft of reasons no interference is called for by this Court in proceedings
under Article 226 of the Constitution of India.
The Principal Secretary to the Chief Minister, vide letter
No.11471/CMP/2008 dated 06.09.2008, enclosed the letter of Dr. Ravi Mallu,
Jedcherla-M.L.A. regarding the representation of the 4th respondent requesting to
drop all further action/proceedings against him, and informed the Principal
Secretary (Home) that the Chief Minister desired that the request be examined
and the file circulated. Accordingly a note was put up to the Chief Minster who, by
his endorsement dated 11.12.2008, observed:
“Keeping in view the permissions taken by the A.O; details of finances and payments made,departmental enquiry may be ordered against Sri Yesuratnam, D.I.G. of Police.”
Pursuant to the orders in circulation of the Chief Minister, a draft G.O. was
put up for approval which later resulted in issuance of G.O.Ms. No.25 dated
15.01.2009.
From G.O.Ms.No.25 dated 15.1.2009 it is evident that it was only after the
2nd respondent had submitted its final report, vide its letter dated 6.8.2008, that
the 4th respondent had submitted the representation dated 9.9.2008 to the Chief
Minister. The note file placed before this Court discloses that the endorsement of
the then Chief Minister dated 11.12.2008 was based the recommendations of a
Member of the Legislative Assembly enclosing a copy of the representation
submitted by the 4th respondent after the ACB had sought sanction to prosecute
him.
Grant of sanction is an administrative function. It is neither a quasi-judicial
act nor is there a lis involved. The question of giving an opportunity of hearing to
the accused before granting sanction does not arise. (Deepak Chowdhary11; P.P.
Sharma18). The competent authority was required to exercise his discretion,
whether to grant or refuse sanction, only on the report submitted by the ACB and
the enclosures thereto. No reliance could have been placed either on a
representation submitted by the 4th respondent or the recommendations of the
M.L.A, for the sanctioning authority has only to see whether the facts stated in the
complaint prima facie discloses the commission of an offence under the
Prevention of Corruption Act, 1988 or not. The actual production of evidence are
matters of proof during trial and are not to be undertaken at the stage of sanction.
(R.C. Anand (Dr)21, Kalpnath Rai v. State[23]). It is not for the competent
authority to judge the truth of the allegations in the report submitted by the ACB on
the basis of a representation subsequently submitted by the 4th respondent on
09.09.2008. He has no jurisdiction to hold a parallel investigation into the
allegations. (Jagjit Singh2; Indu Bhusan Chatterjee1). The sanctioning authority
is required to arrive at the prima facie satisfaction that the relevant facts, as
discernible from the ACB report, constitute the offence and then either grant or
refuse sanction. What is necessary and material is whether the facts collected
during investigation constitute the offence for which sanction has been sought for.
(Deepak Chowdhary11).
SHOULD ADJUDICATION OF THIS WRIT PETITION BE DEFERRED TILL THEDISPOSAL OF W.P. No.23967 of 2009?
Sri P. Gangaiah Naidu, learned Senior Counsel, would submit that in W.P.
No.23967 of 2009, also a writ petition filed in public interest, a larger relief of
according sanction for prosecution in all criminal cases relating to disproportionate
assets was sought for; in the said Writ Petition the Division bench had passed an
interim order directing the ACB to furnish details of all cases wherein it had
recommended prosecution in the past five years; the 4th respondent could not be
singled out by the petitioner herein; and the Government had, in several other
cases of a similar nature, refused to accord sanction.
The ACB has sought sanction for prosecution on the ground that the 4th
respondent had acquired assets worth Rs.43.87 lakhs disproportionate to his
known sources of income. An employee, alleged to have indulged in acts of
corruption, and to have amassed wealth far disproportionate to his known sources
of income, cannot be heard to say that he alone should not be singled out and
judicial review of the validity of the order refusing sanction should await
adjudication of a Writ Petition wherein the challenge is to the action of the
Government in refusing to accord sanction for prosecution in all cases of
employees alleged to possess assets disproportionate to their known sources of
income.
If the report of the ACB and its enclosures make out a prima facie case of
the 4th respondent having amassed wealth disproportionate to his known sources
of income then sanction for his prosecution should, ordinarily, be accorded. If, on
the other hand, the ACB report does not make out a prima facie case the
sanctioning authority should refuse to accord sanction. While a corrupt employee
should be prosecuted forthwith, an innocent man should not have the Damocles
sword, (i.e., pendency of this Writ Petition challenging the order of the
Government refusing to accord sanction), hanging over his head. The issues
raised in this Writ Petition, therefore, necessitate early resolution. We see no
reason, therefore, to defer adjudication of this Writ Petition till W.P. No.23967 of
2009 is disposed of.
DOES THE PETITIONER LACK LOCUS STANDI TO FILE THIS WRIT PETITIONIN PUBLIC INTEREST?
Sri P. Gangaiah Naidu, learned Senior Counsel, would submit that the
petitioner had falsely stated that he was an advocate; he did not have locus standi
to file this writ petition; the writ petition was filed for extraneous reasons at the
behest of Sri B.V. Rami Reddy against whom the 4th respondent had submitted an
enquiry report on 20.04.2005 holding him guilty of misappropriation of four lakhs;
W.P. No.20323 of 2001, filed by Sri B.V. Rami Reddy, was dismissed by this
Court on 01.12.2003; the petitioner was only a name lender for Sri B.V. Rami
Reddy; and no public interest was involved in this writ petition.
Sri R.N. Hemendranath Reddy, Learned Counsel for the petitioner would
submit that the petitioner, a practicing advocate, had the locus standi to file this
Writ Petition in public interest and the allegations made by the 4th respondent that
the petitioner was acting at the behest of Sri Rami Reddy was without basis.
Learned Counsel would rely on Vishwanath Chaturvedi v. Union of India[24].
The law, on locus standi, has veered around from genuine grievance
against orders affecting prejudicially to sufficient interest in the matter. Action of
the executive, in disregard of the provisions of law, raise substantial issues of
accountability of those entrusted with the responsibility of administration. It
furnishes enough cause for an individual to approach by way of a writ petition. The
authorities can neither be permitted to seek shelter under the technicalities of
locus standi nor can they plead restraint in the exercise of discretion as grave
issues of public concern outweigh such considerations. (Bangalore Medical
Trust v. B.S. Muddappa[25]).
Public interest litigation is an effective weapon in the armoury of law for
delivering justice to citizens. It should be aimed at redressal of genuine public
wrong or public injury and not be publicity-oriented or founded on personal
vendetta. It has to be used with great care and circumspection. The Court must
be satisfied about (a) the credentials of the applicant; (b) the prima facie
correctness or nature of information given by him; and (c) the information being
not vague and indefinite. The Court has to be extremely careful to see that, under
the guise of redressing a public grievance, it does not encroach upon the sphere
reserved by the Constitution to the Executive and the Legislature. The Court must
ensure that a member of the public, who approaches the Court, is acting bonafide
and not for personal gain or private/political motive or other oblique
considerations. The petitions of busybodies deserve to be thrown out at the
threshold and, in appropriate cases, with exemplary costs. (Dattaraj Nathuji
Thaware5).
On the question of locus-standi, it needs to be noted that the petitioner, a
practising Advocate, has invoked this Court’s jurisdiction questioning the action of
the first respondent in not according sanction to the 2nd respondent to prosecute
the 4th respondent for offences punishable under Section 13(1)(e) read with
Section 13(2) of the Prevention of Corruption Act, 1988.
The petitioner herein, in an affidavit filed before this Court, has furnished his
enrolment number. We see no reason, therefore, to suspect that he is not a
practicing advocate. The petitioner has stated that the service rivalry between the
4th respondent and Sri B.V. Rami Reddy are not within his personal knowledge; he
was not at all concerned with the same; he was not connected with either Sri B.V.
Rami Reddy or any other person in the police department; and he did not know
them at all. He would deny the allegation that he was used as a tool, by persons
inimical to 4th respondent, to file this writ petition. He would submit that these
allegations leveled against him were false, frivolous and invented by the 4th
respondent for the purpose of this Writ Petition. We see no reason either to doubt
the petitioner’s bonafides or to be persuaded that the petitioner had been set up by
Sri B.V. Rami Reddy, or any other officer of the police department, to create
problems for the 4th respondent.
There is no material on record even to create a suspicion, let alone
establish, that the petitioner was acting for extraneous reasons and not in public
interest. Even otherwise if any other member of the public, to whom the conduct
alleged against the petitioner in the present case could not be attributed, can file
such a writ petition for the same relief, this disability would not attach to him. The
relief claimed by the petitioner being in the nature of a class action, without
seeking any relief personal to him, ought not to be dismissed merely on the
ground of lack of standing since this is a matter of public concern and relates to
the good governance of the State itself. (Dr. Kashinath G. Jalmi v. The
Speaker[26]).
Even in cases, where the petitioner may have moved the Court for
redressal of personal grievances, the Court, in the interest of justice and in
furtherance of public interest, may enquire into the state of affairs of the subject
matter of litigation. (Shivajirao Nilangekar Patil v. Dr Mahesh Madhav
Gosavi[27]; Guruvayoor Devaswom Managing Committee v. C.K. Rajan[28];
Indian Banks' Assn. v. Devkala Consultancy Service[29]).
The contents of impugned orders, under challenge in the writ petition, are
not in dispute. It is not even the 4th respondent’s case that the ACB report, relied
on by the petitioner, is false or fabricated. The information furnished by the
petitioner regarding the sanction order, or events preceding thereto, are also
admitted to be true.
The subject matter of challenge in this writ petition is the order of the
Government directing initiation of disciplinary proceedings instead of according
sanction to prosecute the 4th respondent. One of the guiding principles for the
sanctioning authority would be the public interest (Krishanchand Khushalchand
Jagtiani12; Mansukhlal Vithaldas Chauhan4) . The authority which has been
conferred the power to grant or refuse sanction is expected to act consistent with
public interest and the interest of law — both of which demand that, while a public
servant be not subjected to harassment, genuine charges and allegations should
be allowed to be examined by the Courts. Both the considerations aforesaid
should be present in the mind of the authority while deciding the question of grant
of previous sanction. (R.S. Nayak9; Krishanchand Khushalchand Jagtiani12).
Even if there were several other cases, involving amassing of wealth far in
excess of known sources of income, where sanction has not been accorded by
the Government that would not render the present writ petition devoid of public
interest. While all those indulging in acts of corruption must also be severely
dealt with, failure of the Government to do so would not justify this Court refusing
to entertain a writ petition questioning the action of the Government in not
according sanction for prosecution in a particular case. Unlike in D. Siva
Prasad6, the present writ petition, filed by a practicing Advocate, is in larger
public interest.
The admonition of the Supreme Court, in Dattaraj Nathuji Thaware5 that
the Bar Council and Bar Associations should ensure that no member of the Bar
abets the filing of frivolous petitions carrying the attractive brand name of PIL, and
that no one should be permitted to bring disgrace to the noble profession has no
application to the case on hand since the petitioner’s complaint is failure of public
duty on the part of the sanctioning authority to apply its his mind to the facts of the
case and in not examining whether a prima facie case for sanction of prosecution,
under Section 19 of the Prevention of Corruption of Act, 1998, has been made out
from the report of the Anti-Corruption Bureau and its enclosures.
As an order of sanction lifts the bar for prosecution, mechanical refusal to
grant sanction could well result in a corrupt officer being let off scot-free. Avarice
and insatiable greed is slowly but surely eroding the very system of governance in
this country. Corruption, unless severely dealt with, will destroy the very fabric of
our society. Corruption by public servants has now reached endemic proportions
and monstrous dimensions. Its tentacles have started grappling even institutions
created for the protection of the republic. Unless those tentacles are intercepted
and impeded from gripping the normal and orderly functioning of public offices,
through strong legislative, executive as well as judicial exercises, corrupt public
servants may well paralyse the functioning of such institutions. Proliferation of
corrupt public servants could garner momentum to cripple the social order if such
men are allowed to continue to manage and operate public institutions. (K.C.
Sareen v. CBI[30]).
India which was ranked 72nd in the year 2007, in the Corruption Perception
Index (CPI), on the basis of a survey carried out by Transparency International,
has in the year 2009 been ranked higher at 84 from out of the 180 surveyed
nations. India’s integrity score, a major component of the survey, stands at 3.4
out of the highest score of 10 which indicates that the country has a long way to
go in eradicating corruption. A country with a higher score from out of 10 is
considered to be less corrupt. India’s rank has been calculated by collecting date
from 13 sources, all of which measure the overall extent of corruption by gauging
the frequency and size of bribes in public and political sectors. (Business
Standard, February 6th 2010).
The adverse impact of lack of probity in public life leading to a high degree of
corruption is manifold. The holders of public offices are entrusted with certain
powers to be exercised in public interest alone and, therefore, the office is held by
them in trust for the people. Any deviation from the path of rectitude by any of
them amounts to a breach of trust and must be severely dealt with instead of
being pushed under the carpet. If the conduct amounts to an offence, it must be
promptly investigated and the offender against whom a prima facie case is made
out, should be prosecuted expeditiously so that the majesty of law is upheld and
the rule of law vindicated. (Vineet Narain v. Union of India[31]).
Refusal to accord sanction, where a prima facie of corruption is made out,
would encourage others to indulge in similar acts. A challenge to the order
refusing to accord sanction for prosecution under the Prevention of Corruption
Act, 1988 should not be lightly brushed aside. This Court would be failing in its
duty if it were to turn a blind eye to the ever increasing acts of corruption by public
officials. Courts would not easily accept the submission that it should not
entertain a writ petition, filed in public interest, questioning the failure of the
Government to accord sanction to prosecute officials alleged to possess assets
far disproportionate to their known sources of income. In a public interest
litigation, filed regarding acquisition of alleged wealth, it would be wrong in law for
the Court to judge the petitioner’s interest without looking into the subject-matter
of his complaint and, if the petitioner shows failure of public duty, the Court would
be in error in dismissing the PIL. (Vishwanath Chaturvedi24).
We see no reason to non-suit the petitioner on this ground.
DOES CLOSURE OF CR. NO.8/ACB-CIU-HYD/2006 NECESSITATE THEIMPUGNED PROCEEDINGS BEING UPHELD?
Both the learned Additional Advocate General, and Sri P. Gangaiah Naidu
Learned Senior Counsel, would submit that no useful purpose would now be
served in examining the validity of G.O.Ms. No.25 Home (SC.A) Dept, dated
15.01.2009 as the F.I.R. in Cr. No.8 of 2006 was subsequently closed.
A final report was filed in the Court of the Principal Special Judge for SPE &
ACB Cases, Hyderabad on 16.07.2009 requesting that, in view of G.O.Ms. No.25
dated 15.01.2009, the 1st respondent’s memo dated 29.04.2009, the 2nd
respondent’s memo dated 12.05.2009 instructing the investigating officer to submit
draft charges in respect of allegations of disproportionate assets and violation of
conduct rules by the accused officer, orders be issued for closure of the F.I.R.
and return of the seized records and documents. A copy of G.O.Ms. No.25, dated
15.01.2009 and Memo No. 204 dated 12.05.2009 were enclosed thereto.
The Principal Special Judge for SPE & ACB Cases, Hyderabad, by order in
Application No.622 of 2009 in Crime No.8 of 2006 dated 31.07.2009, noted that a
memo was filed seeking closure of the F.I.R. in Crime No.8 to enable
departmental proceedings to be initiated against the accused as directed by the
1st respondent in G.O.Ms. No.25 dated 15.01.2009. The Learned Judge heard the
Special Public Prosecutor and, after perusing the final report and G.O.Ms. No.25
dated 15.01.2009 issued by the 1st respondent, observed that having regard to the
intention of the Government not to prosecute the 4th respondent for being in
possession of disproportionate assets, and as it intended to initiate departmental
action, the final report was being accepted and the F.I.R. was being closed. The
Learned Judge directed the seized records to be returned to the investigating
officer.
It is evident that Cr. No.8 of 2006 was directed to be closed, by the Learned
Principal Special Judge for SPE & ACB Cases, Hyderabad by his order dated
31.07.2009, on the ground that the Government had refused to accord sanction
and that it intended to initiate disciplinary proceedings. Now that the impugned
order, impliedly refusing to accord sanction, is quashed the Government must
examine the request for sanction afresh, in the light of the report of the ACB and
its enclosures, and take a considered decision whether or not to accord sanction
for prosecution of the 4th respondent. We consider it wholly inappropriate to
adjudicate on the effect of the subsequent order of closure of Cr. No.8 of 2006 on
the prior order in G.O.Ms. No.25 dated 15.01.2009, as the question regarding the
consequences of the competent authority passing an order afresh
according/refusing sanction is, as at present, hypothetical.
Viewed from any angle the impugned G.O and the Memo
No.1843/SC.A/A1/2006-11 dated 29.04.2009 must be, and are accordingly,
quashed. The 1st respondent shall examine the Anti-corruption Bureau’s request
for sanction afresh and take a decision whether or not to accord sanction for
prosecution of the 4th respondent under the provisions of the Prevention of
Corruption Act, 1988. The entire exercise in this regard, culminating in an order
being passed afresh, shall be completed within a period of three months from the
date of receipt of a copy of this order.
The Writ Petition is allowed. However, in the circumstances, without costs.
______________________GODA RAGHURAM,J
Date: 26 .02.2010
____________________________ RAMESH RANGANATHAN,JMRKR/ASP
L.R. copy to be markedB/oAsp/mrkr
[1] AIR 1958 SC 148[2] 1996 Crl.L.J. 2962[3] 2009(3) ALT 770[4] 1997(7) SCC 622[5] AIR 2005 SC 540[6] 2007(5) ALT 703[7] 1958 SCR 762 = AIR 1958 SC 124[8] (1978) 4 SCC 32 = AIR 1978 SC 174[9] (1984) 2 SCC 183 = AIR 1984 SC 684[10] (1986) 2 SCC 679 = AIR 1987 SC 537[11] (1995) 6 SCC 225 = AIR 1996 SC 186[12] (1996) 4 SCC 472 = AIR 1996 SC 1910[13] AIR 2004 SC 517[14] AIR 1979 SC 677[15] (2007) 11 SCC 273[16] 2000(4) ALD 665[17] AIR 1995 SC 785[18] 1992 Suppl (1) SCC 222[19] AIR 1973 SC 2131[20] 75 Ind App 30 = AIR 1948 PC 82[21] (2004) 4 SCC 615[22] 2006(4) Crimes 278[23] (1997) 8 SCC 73
[24] (2007) 4 SCC 380[25] (1991) 4 SCC 54[26] 1993(2) SCC 703[27] 1987(1) SCC 227[28] (2003) 7 SCC 546 [29] (2004) 11 SCC 1[30] (2001) 6 SCC 584[31] (1998) 1 SCC 226