Allowed

Kalintha Bhanu Praksah v. The State of Andhra Pradesh

Andhra Pradesh HC16 Mar 2021CRLRC/27/2021

Case brief

AI extract

What is this about?

This criminal revision disposed of an appeal against a discharge denial where the trial court failed to consider testimony declaring that prosecution sanction was declined by a competent authority, incorrectly asserting no sanction was needed due to the petitioner's transfer.

What did the court decide?

Criminal revision case allowed; order dated 23.12.2020 in Crl.M.P.No.122 of 2020 set aside; matter remanded to Court below for fresh adjudication.

Kalintha Bhanu Praksah Vs The State of… — Civil Procedure and Limitation | Andhra Pradesh HC (2021)

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THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL REVISION CASE NO.27 of 2021

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ORDER:-

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Assailing the order dated 23.12.2020 passed in Crl.M.P.No.122 of 2020 in C.C.No.25 of 2016 on the file of the III Additional Special Judge for C.B.I Cases, Visakhapatnam, whereby the petition filed by the petitioner herein under Section 239 of Code of the Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking discharge was dismissed, the present revision is filed.

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The petitioner herein is A-2 in C.C.No.25 of 2016 on the file of the III Additional Special Judge for C.B.I Cases, Visakhapatnam for the offences under Sections 120-B, 420, 471, 477-A of Indian Penal Code, 1860 (for short “ IPC ”) and Section 13 (2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 (for short “ PC Act ”).

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The facts of the case in a nutshell are that the prosecution filed charge sheet against the petitioner (A-2) and others (A-1, A-3 to A-5) alleging that A-1 and A-2 abused their official capacity as public servants and fraudulently recommended sanction of loan of Rs.20,00,000/- to A-3, knowing fully well the lease agreement submitted by A-3 was a fabricated one. As such they have committed the offences as alleged.

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It is the case of the petitioner that consequent upon his promotion, the petitioner joined at Chinapandraka Branch, Bantumilli Mandal, Krishna District, where A-1 was the Branch Manager and there were certain lapses in sanction of loans by A-1, which are not within the knowledge of the petitioner. Since the petitioner was the Assistant Manager, he signed on some of the

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documents. It is stated that in the departmental enquiry the petitioner was exonerated with minor penalty and also found that there was no involvement of petitioner in sanction of those loans. It is stated that since the petitioner being a public servant, in order to prosecute him, previous sanction is required as per Section 19 of PC Act.

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It is further stated that during the course of trial the prosecution examined P.W.2 (A.N.Appaiah), who was General Manager (Network-III), State Bank of India, has deposed before the Court that he declined to grant sanction for prosecution as against the petitioner, since there was no involvement of petitioner and material to grant such permission. It is stated that Ex.P-5 sanction order was issued by the incompetent authority in a mechanical way, as such the criminal proceedings against the petitioner is clear abuse of process of law and vitiated on the ground of improper sanction. Therefore, he filed Crl.M.P.No.122 of 2020 in C.C.No.25 of 2016 to discharge him from the case and the Court below by impugned order dated 23.12.2020 has dismissed the said application. Assailing the said order, the present revision case is filed.

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Sri A.Chennakesavulu, learned Special Public Prosecutor for CBI filed counter denying the grounds of the revision and firmly contended that there is a valid previous sanction for prosecution against the petitioner. Finally, it is stated that there are no grounds to interfere with the order passed by the Court below.

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Heard Sri P.Vivek, learned counsel for petitioner and Sri A.Chennakesavulu, learned Special Public Prosecutor for CBI appearing on behalf of the respondent-State.

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Learned counsel for the petitioner submits that the Court below has grossly erred in observing that since the petitioner was transferred from Chinapandraka Branch after registration of this case and since he was not working in the same branch as on the date of taking cognizance, no sanction is required. He submits that in spite of clear admission of P.W.2, who was the competent authority to sanction has declined to accord sanction, the Court below has dismissed the petition. He further submits that dismissal of the earlier petition for discharge would never debar him to file the present discharge petition, since a new fact has been elucidated during the course of evidence that sanction of the appropriate authority has not been granted.

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Per contra, Sri A.Chennakesavulu, learned Special Public Prosecutor for CBI would submit that the grounds raised in the revision are only a matter of trial and they cannot be considered in a petition filed under Section 239 of Cr.P.C. He submits that P.W.2 did not pass any detailed order while refusing sanction order as such P.W.3 on his own accord and as per the advice of the Central Vigilance Commission, issued the sanction proceedings, as such now the petitioner cannot contend that the said sanction proceedings are invalid. He finally submits that there are no grounds to interfere with the reasoned order passed by the Court below and he urged to dismiss the present revision.

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In the light of the above rival contentions, the point that arises for consideration is:

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Whether the order of the Court below warrants interference by this Court?

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It is a settled principle of law that at the stage of considering an application for discharge, the Court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence.

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In the instant case, the petitioner while relying on the cross examination of P.W.2 has moved the Court below by filing the petition to discharge him from the case. The relevant portion of the cross examination of P.W.2 is

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“The file was processed by chief vigilance officer of our department and placed before me and after gone through with the same, I declined to grant permission to prosecute the matter against A-2 as can be seen at Page No.38 of Ex.X-1 (dated 01.08.2013). In my own handwriting, I mentioned “declined sanction for prosecution”.

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Thus, the petitioner has filed the discharge petition on the ground of lack of jurisdiction to the Special Judge to frame charges against him in the absence of valid sanction as required under Section 19 of the PC Act. But however, the Court below without considering the said contention has dismissed the discharge petition by observing that since the petitioner was transferred from Chinapandraka Branch subsequent to registration of this case and since he was not working in the same branch as on the date of

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taking cognizance, no sanction is required. With the above observation, the Court below has failed to appreciate the facts elicited during the cross examination of P.W.2 with regard to refusal to sanction proceedings. The Hon’ble Apex Court in catena of judgments has laid down the law for considering the petition filed under Section 239 of Cr.P.C. The impugned order reveals that the Court below failed to take into consideration any of the contentions raised on behalf of the petitioner and particularly the observation that the sanction is not required in view of the transfer has no legs to stand and seeks interference of this Court.

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Accordingly, the criminal revision case is allowed by setting aside the order dated 23.12.2020 in Crl.M.P.No.122 of 2020 in C.C.No.25 of 2016 on the file of the III Additional Special Judge for C.B.I Cases, Visakhapatnam and the matter is remanded back to the Court below for fresh adjudication in accordance with law.

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As a sequel, all the pending miscellaneous applications shall stand closed.

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___________________________ LALITHA KANNEGANTI, J

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16^th March, 2021 PVD

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THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI

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(ALLOWED)

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