Allowed

State of Karnataka v. Sri. H. Chinnappaiah

Karnataka HC9 Dec 2020CRL.RP/874/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka held that the trial court erred in discharging the respondent. It clarified that the Chief Conservator of Forest was the competent authority to issue sanction under the PC Act and the KCCA Rules. The discharge order was set aside, and the trial was ordered to proceed.

What did the court decide?

The impugned order of discharge dated 31.01.2017 is set aside; the application for discharge is rejected; trial to be expedited.

State of Karnataka Vs Sri. H. Chinnappaiah — Corruption | Karnataka HC (2020)

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Crl.R.P.No.874/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF DECEMBER 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL REVISION PETITION No.874/2017

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BETWEEN :

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STATE OF KARNATAKA REPRESENTED BY THE POLICE INSPECTOR KARNATAKA LOKAYUKTA POLICE WING, CITY DIVISION BENGALURU – 560 001 …PETITIONER (BY SRI VENKATESH S ARBATTI, ADVOCATE)

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AND :

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SRI.H.CHINNAPPAIAH S/O SRI.HANUMANTHARAYAPPA AGED ABOUT 60 YEARS RANGE FOREST OFFICER DEPARTMENT OF FOREST DODDABALLAPURA BENGALURU RURAL DISTRICT- 561 203 R/AT NO.32, SNEHA NAGARA 2^ND CROSS, AMRUTHAHALLI MAIN ROAD BENGALURU – 560 092 PERMANENT RESIDENT OF KORAMANGALA, AHUTHI POST DEVANAHALLI TALUK BENGALURU RURAL DISTRICT – 562 110 …RESPONDENT

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(BY SRI.C.G.SUNDAR, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 31.01.2017 AND 28.04.2017 IN SPL.C.C. NO.130/2012 PASSED BY THE XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE, BANGALORE.

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THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 25^TH NOVEMBER 2020, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT THROUGH PHYSICAL HEARING MADE THE FOLLOWING:

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O R D E R

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“Whether the impugned order of discharge of accused/respondent for want of valid sanction suffers illegality, impropriety and incorrectness?” is the question involved in this case.

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On the basis of the charge sheet filed by the Karnataka Lokayuktha Police Wing (City Division) Bengaluru in Crime No.62/2011 the respondent was prosecuted in Spl.Case No.130/2012 before the XXIII Addl. City Civil and Sessions Judge and Special Judge for trial of offences under the PC Act, Bengaluru for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (‘the PC Act’ for short),.

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The respondent joined the services in

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Karnataka Forest Department as ‘Forest Guard’. He was promoted as Range Forest Officer in course of time. In the year 2011 he was working as Range Forest Officer, Forest Department, Doddaballapura, Bengaluru Rural District.

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CW.1 Jagadish electrical Contractor filed complaint alleging that the respondent demanded illegal gratification of Rs.25,000/- to show an official favour and on bargain he reduced that to Rs.16,000/-. He further alleged that the respondent received Rs.3,000/as part of the illegal gratification and demanded the balance amount of Rs.12,000/-.

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The Lokayuktha Police on receiving the complaint registered the case, conducted trap and allegedly recovered the bait money from the respondent. On filing the charge sheet, the Special Court took cognizance of the offences, summoned the respondent and on hearing the parties framed the

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charges for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.

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Then PW.1 the Principal Chief Conservator of Forest was examined. After his examination respondent filed application under Section 19 of the PC Act seeking his discharge on the ground that PW.1 was not competent to issue the sanction order.

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The petitioner opposed the said application. On hearing the parties by the impugned order, the trial Court discharged the respondent on the sole ground that during the course of hearing, the public prosecutor conceded that the respondent was gazetted Group-B Officer and the Government was the competent authority to accord sanction to prosecute him and not PW.1 the Chief Conservator of Forest.

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Further the trial Court ordered to return the

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charge sheet to the Investigating Officer with a direction to obtain fresh sanction order from the competent authority and to resubmit the charge sheet

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thereafter. After such return of the charge sheet, the petitioner under Annexure-B dated 10.02.2017 applied to the Additional Chief Secretary, Forest Department to grant fresh sanction order as per Section 19(1)(d) of the PC Act.

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In response, the Additional Chief Secretary of Forest Department, Government of Karnataka issued reply dated 06.03.2017 as per Annexure-C stating that for the respondent, Chief Conservator of Forest is the sanctioning authority, therefore the sanction order issued was valid and to proceed in accordance with law on the basis of such sanction order.

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On receipt of such communication, the petitioner applied to the trial Court seeking review of the order. The trial Court rejected that application on the ground that after passing the order of discharge the Court has become functus-officio , therefore it cannot review its own order.

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The petitioner has challenged the above said orders on the following grounds:

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i) As per Rule 7 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (‘the KCCA Rules’ for short) read with Government notification dated 11.02.2010 Annexure-D PW.1 was the disciplinary authority;

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ii) In the cross-examination of PW.1 the accused did not dispute that PW.1 was the disciplinary authority;

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iii) The trial Court committed error in ignoring the evidence of PW.1 and the relevant rules and in relying only on the submission of the Public Prosecutor to hold that PW.1 was not the competent authority.

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Per contra Sri C.G.Sundar, learned counsel for

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the respondent seeks to justify the impugned order on the following grounds:

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i) The accused belonged to Gazetted Group-B of

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Karnataka Civil Services. Therefore the Government was the competent authority to remove him from service and not PW.1;

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ii) The order of discharge passed by the trial Court on the ground of valid sanction cannot be reversed unless any prejudice is shown by the petitioner;

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iii) In the case on hand no prejudice is caused to the prosecution as the trial Court has granted permission to the Lokayuktha Police to resubmit the charge sheet after obtaining sanction from the competent authority.

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iv) The sanction order was without application of mind.

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In support of his arguments he relies upon the following judgments:

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i) Nanjappa vs. State of Karnataka (2015

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Crl.L.J. 4012)

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ii) Samsher Singh Vs. State of Punjab and another (AIR 1974 SC 2192)

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iii) Laxman Rao Peshve vs. Karnataka Lokayuktha Police (W.P.No.736/2018 (GM RES) D.D. 25.02.2020

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Section 19 of the PC Act states that no Court shall take cognizance of the offence punishable under Sections 7, 11, 13 and 15 alleged to have committed by the public servant except with the previous sanction of the authorities mentioned in clauses a to c therein. The perusal of Section 19 (a) to (c) makes it clear that sanction to prosecute the public servant shall be granted by the authority competent to remove him from service.

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The sanction order was marked at Ex.P1 and produced before this Court as per Annexure-A. That was issued by PW.1 who was the Chief Conservator of Forests. In Ex.P1 and in his evidence, PW.1 claimed that he is the appointing authority for the Range Forest Officers, therefore he is competent authority to issue sanction.

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In page 4 of the sanction order PW.1 has stated that as per KCCA Rules he is the appointing authority and the authority to remove the Range Forest Officer from service. In his cross-examination, it was

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not disputed that he was the appointing authority, but, it was only suggested that since he has no authority to remove the respondent/accused from service, he is not competent to issue the sanction order which he denied.

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Admittedly at the relevant point of time, the accused was working as Range Forest Officer which is a Group B post under the State Civil Service. He was governed by the Karnataka Civil Service (Classification, Control and Appeal) Rules, 1957.

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Rule 7 of KCCA Rules which governs

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‘Appointing Authorities’ reads as follows:

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“ 7. Appointments to State Civil Services:-

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(1) Save as otherwise provided, all first appointments to the State Civil Services Group ‘A’ and Group ‘B’ shall be made by the Government:

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Provided that , where, in respect of any posts under State Civil Services, Group ‘B’, any other Appointing Authority is specified , first appointments to such posts shall be made by the authority so specified.

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Therefore it is clear that generally appointment to the post of Group A and B shall be by the Government. Whereas proviso to Rule 7(1) authorizes the Government to specify any other appointing authority to Group B State Civil Services Post. Exercising the powers conferred under the proviso to Rule 7, the Government of Karnataka has issued the notification dated 11.02.2010 as per Annexure-D which states that except Tahsildar Grade II in Group B posts the Government has specified the heads of all departments as appointing authority in respect of the Posts of Group B in all other departments/services.

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The proviso to the said notification states that except the Group B employees appointed by specified appointing authorities, for the other employees belonging to Group B of Karnataka Civil Services appointed by the Government, the Government shall continue to be the disciplinary authority for the purpose of imposing the penalties prescribed under Rule 8(v) to 8(viii) of the KCCA Rules.

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The harmonious reading of the above said rules, notification and the undisputed evidence of PW.1 that he was the specified appointing authority for the accused go to show that he was the authority to impose the major penalty under Rule 8 which includes removal from service. However, the trial Court without referring to the above rules, relying on the concession of the prosecutor jumped to the conclusion that PW.1 was not the authority competent to remove the accused from service, therefore the sanction was invalid.

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It is also to be noted that after return of the

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charge sheet, the ADGP Lokayukta under Annexure-B dated 10.02.2017 wrote to the Addl. Chief Secretary, Forest Department, Government of Karnataka appraising him of the impugned discharge order, sought sanction order from the Government to prosecute him.

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In response to that the Additional Chief Secretary Forest Department Government of Karnataka vide Annexure-C dated 06.03.2017 referring to the

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notification dated 11.02.2010 (Annexure-D) and Schedule II to the KCCA Rules confirmed that Chief Conservator of Forests is the competent authority to impose punishment prescribed under Rule 8(v) to 8(viii) of KCCA Rules, therefore he is competent to issue sanction order.

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Schedule II to KCCA Rules, 1957 prescribes that the appointing authority is empowered to impose penalties in various departments of Government of Karnataka. Entry at Sl.No.2 of Schedule II of KCCA Rules meant for forest department prescribes that for First Grade Rangers and second Grade Rangers, the appointing authority is the Chief Conservator of Forests and disciplinary authorities for imposing punishment under Section 8(ii) to (iv-a) is Conservator of Forests and (v) to (viii) is Chief Conservator of Forests. On that count also, the impugned order of discharge is unsustainable in law.

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No doubt it is true that Section 19(3)(a) of PC Act states that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in the appeal or revision on the ground of the absence of or any error, omission or irregularity in the sanction. But the very section provides for reversal of the order if in the opinion of the Court, a failure of justice has in fact been occasioned by such order of discharge.

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Primarily the said section deals with reversal of the order of conviction or sentence passed against the accused. Further since PW.1 himself is the competent authority to issue sanction, there is no scope for the prosecution to go before any authority and again seek sanction order. In fact such request of the prosecution was rejected by the Government on the ground that PW.1 himself is the sanctioning authority and not the Government. Thereby the prosecuting agency is thrown out of Court without any remedy. Certainly that has caused prejudice to the said

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authority. Therefore there is no merit in the said contention of the learned counsel for the respondent.

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The judgment in Nanjappa’s case relied upon by the learned counsel for the respondent, the order of conviction and sentence passed by the trial Court was reversed by the High Court finding defect in the sanction order and in that context Section 19(3) of PC Act was invoked by the Hon'ble Supreme Court. Therefore the said judgment is not applicable.

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Samsher Singh’s case relied upon by the learned counsel for the respondent the question involved was whether the delinquent Judicial officer was given opportunity in disciplinary proceedings. Therefore the said judgment is also not applicable. Similarly the order in Lakshman Rao Peshve’s case is also not applicable in the facts of the case.

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Learned counsel for the respondent further argued that the impugned sanction order was passed without application of mind. The respondent was

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discharged after the commencement of evidence on the application filed by the respondent for his discharge. The sole ground made in his application was that the Government is the competent authority to remove him from service and not PW.1 the Principal Chief Conservator of Forest. Except that no other ground was raised in the application.

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Apart from that the perusal of the sanction order and the evidence of PW.1 shows that all material documents were produced before PW.1 while seeking the sanction order and on considering them he had granted the sanction. Therefore there is no merit in the contention that the sanction order was passed without application of mind.

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For the aforesaid reasons, the impugned order of discharge suffers illegality, impropriety and is liable to be set aside. Therefore the petition is allowed.

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The impugned order dated 31.01.2017 passed by

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the XXIII Addl. City Civil and Sessions Judge and Special Judge, Bengaluru is hereby set aside.

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The application of the accused/respondent for his

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discharge is hereby rejected.

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