Disposed

Sri B Guruprasad v. the State of Karnataka

Karnataka HC25 Jun 2024CRL.P/809/2019

Case brief

AI extract

What is this about?

Government servant faced disproportionate-assets prosecution under the Prevention of Corruption Act; the Competent Authority declined sanction. The Lokayukta challenged the rejection while the accused sought quashment of the crime. Holding the investigating agency lacks locus as an aggrieved person, the Court rejected the Lokayukta's petition and quashed Crime No.91 of 2012.

What did the court decide?

Writ Petition No.58257 of 2018 rejected for want of locus; Criminal Petition No.809 of 2019 allowed and FIR/source report in Crime No.91 of 2012 quashed along with all proceedings.

Sri B Guruprasad Vs the State of Karnataka — Corruption | Karnataka HC (2024)

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Reserved on : 13.06.2024 Pronounced on : 25.06.2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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CRIMINAL PETITION NO.809 OF 2019

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C/W

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WRIT PETITION No.58257 OF 2018 (GM - KLA)

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IN CRIMINAL PETITION NO.809 OF 2019

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BETWEEN:

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SRI B.GURUPRASAD S/O B.K.BASAPPA AGED ABOUT 56 YEARS, R/O NO.213, G BLOCK, MINISTRY OF COMMUNICATION EMPLOYEES CO-OPERATIVE HOUSING SOCIETY, SAHAKARNAGAR BENGALURU – 560 092.

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... PETITIONER

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(BY SRI SANDEEP S.PATIL, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA (THROUGH LOKAYUKTA POLICE

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CITY DIVISION, BANGALORE) REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001.

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... RESPONDENT

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(BY SRI B.S.PRASAD, SPL.PP)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE SOURCE REPORT DATED 10.12.2012, QUASH FIR DATED 18.12.2012 IN CR.NO.91/2012 REGISTERED BY THE BANGALORE CITY DIVISION POLICE STATION, KARNATAKA LOKAYUKTA AND CONSQUENTLY QUASH THE ENTIRE PROCEEDINGS IN CR.NO.91/2012 PENDING ON THE FILE OF THE LXXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR LOKAYUKTHA CASES, BANGALORE.

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IN WRIT PETITION No.58257 OF 2018

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BETWEEN:

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KARNATAKA LOKAYUKTA POLICE M.S.BUILDING DR. AMBEDKAR VEEDHI BENGALURU CITY – 560 001 REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE CHIKKASWAMY.

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... PETITIONER

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(BY SRI B.S.PRASAD, ADVOCATE)

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AND:

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1 . STATE REPRESENTED BY SECRETARY DEPARTMENT OF

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PERSONNEL AND ADMINISTRATIVE REFORMS VIDHANA SOUDHA BENGALURU – 560 001.

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2 . B.GURUPRASAD S/O LATE B.K.BASAPPA BALLEKERE VILLAGE KADUR TALUK CHIKKAMAGALUR DISTRICT NOW RESIDING AT “GURU” HOUSE NO.213 ’G’ BLOCK MINISTRY OF COMMUNICATION EMPLOYEES CO-OPERATIVE SOCIETY EXTENSION 10^TH CROSS, 14^TH MAIN SAHAKARANAGARA BENGALURU – 560 091.

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... RESPONDENTS

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(BY SRI HARISH GANAPATHI, HCGP FOR R-1; SRI SANDEEP PATIL, ADVOCATE FOR R-2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER ISSUED BY THE R-1 IN NO. C. Aa. Su. E 01 EMUV 2013, BANGALORE DATED 7.8.2017 VIDE ANNEXURE-H.

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 13.06.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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The petitioner/Karnataka Lokayukta Police, in Writ Petition 58257 of 2018 who is the respondent in Criminal Petition No.809 of 2019 calls in question an order dated 07-08-2017 passed by the 1^st respondent by which sanction sought to prosecute the 2^nd respondent is declined by the Competent Authority. Criminal Petition No.809 of 2019 is preferred by the Government servant seeking quashment of entire proceedings in Crime No.91 of 2012, in the light of sanction being declined as obtaining in the companion petition. Therefore, these petitions are taken up together and considered by this common order. For the sake of convenience the parties viz., Government servant and the Karnataka Lokayukta Police will be referred to hereinafter as, petitioner and the Lokayukta respectively, despite their ranking in these petitions.

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Heard Sri B.S.Prasad, learned Special Public Prosecutor appearing for the Lokayukta, Sri Harish Ganapathi, learned High Court Government Pleader appearing for respondent No.1 in

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W.P.No.58257 of 2018 and Sri Sandeep S.Patil, learned counsel appearing for the petitioner/Government servant.

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Facts, in brief, adumbrated are as follows:-

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The petitioner joins the service of the Public Works Department as Assistant Executive Engineer on 5-09-1992 and rose to higher echelons of office. At the relevant point in time, the petitioner was working as Chief Engineer and Commissioner of Metro Rail Project. A crime comes to be registered against the petitioner for offences punishable under Section 13(1) (e) and 13(2) of the Prevention of Corruption Act, 1988 (‘the Act’ for short) foundationed upon a source report in Crime No.91 of 2012. The Lokayukta Police conduct investigation and prepare a final report alleging that the offences alleged against the petitioner need to be tried. Since the petitioner is a Government servant, the final report was placed before the Competent Authority to obtain sanction, as obtaining under Section 19 of the Act. The Competent Authority, on consideration of the final report and all other materials, declined to accord sanction for prosecution of the petitioner. The rejection of

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sanction has given rise to these petitions – one, preferred by the Lokayukta on the score that the order declining sanction to prosecute the petitioner is erroneous and contrary to law and the other by the petitioner, that despite the order declining sanction to prosecute him, the crime is still hanging on the head of the petitioner. The Lokayukta seeks quashment of the order rejecting sanction and permitting filing of the final report before the concerned Court. The petitioner seeks quashment of proceedings in Crime 91 of 2012. Therefore, the cause of action to prefer both these petitions is one solitary act of Government rejecting sanction to prosecute the petitioner.

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The learned counsel Sri B.S. Prasad representing the Lokayukta/petitioner in W.P.No.58257 of 2018 would vehemently contend that, the Government at the time of according sanction to prosecute, is not required to conduct a detailed inquiry, as it is only an approval to continue the prosecution. In the case at hand, the Government analyzed disproportionate assets of the petitioner at 4.3% which according to the Lokayuta was 75.76% and holds that there is no warrant to reject sanction for such prosecution. He

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would submit that the said order should be quashed and the Government be directed to re-consider grant of sanction or this Court grant sanction for prosecution.

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Per contra, the learned counsel Sri Sandeep S. Patil representing the Government servant who is petitioner in Criminal Petition No.809 of 2019 would contend that the Lokayukta Police were entrusted with the investigation. They have conducted their investigation and submitted their final report. The Government is the Competent Authority to accord sanction or reject it. It is the discretion available at the hands of the Competent Authority. Exercising such discretion, to avoid a criminal trial against the Government servant, the Competent Authority looking into the records, rejects sanction. He would contend that there is no locus for the Lokayukta to challenge the said order of rejection of sanction. The Lokayukta cannot be considered to be a person aggrieved. He would seek to rely upon certain judgments which would all bear consideration in the course of the order. Insofar as this petition is concerned, he would contend that despite rejection of sanction way back in the year 2017, the crime is still shown to be

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hanging on the head of the petitioner. Therefore, criminal petition is preferred.

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I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

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The genesis of the issue is drawing up of a source report against the petitioner. According to the source report, the disproportionate asset of the petitioner was at 75.76%. Based upon the said source report a crime comes to be registered against the petitioner in Crime No.91 of 2012. On registration of crime, the Lokayukta Police began investigation. The investigation leads to drawing up of a final report which is in 6 parts. In every part, the disproportionate asset found is beyond 100%. Finding the disproportionate asset to be such, the final report was placed before the Competent Authority i.e., the Government seeking sanction. The plea to seek sanction reads as follows:

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“…. …. ….

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The final report is to be analyzed by the Competent Authority i.e.,

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the Government. The Additional Director General of Police, Karnataka Lokayukta communicates the letter to the Secretary, Department of Personnel and Administrative Reforms to place the final report before the Government seeking sanction. The communication reads as follows:

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“P£ÁðlPÀ ¯À ÆÃPÁAiÉ ÄÄPÀ Û À

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¸ÀASÉå:¯ÉÆÃPï/LJ£ï«(f)/¹n PÉæöÊA.91/2012 §ºÀÄªÀÄºÀrUÀ¼À PÀlÖqÀ, ®UÀvÀÄÛ:CAwªÀÄ ªÀgÀ¢ ºÁUÀÆ vÀ¤SÁ qÁ.||©.Dgï.CA¨ÉÃqÀÌgï «Ã¢

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ªÀiÁ£ÀågÉÃ,

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«µÀAiÀÄ: DgÉÆÃ¦ ©.UÀÄgÀÄ¥Àæ¸Ázï, ªÀÄÄRå EAf¤AiÀÄgï, PÀ£ÁðlPÀ UÀÈºÀ ªÀÄAqÀ½, ¨ÉAUÀ¼ÀÆgÀÄ gÀªÀgÀ «gÀÄzÀÞ zÁR¯ÁzÀ zÁ½ ¥ÀæPÀgÀt: C©üAiÉÆÃd£Á ªÀÄAdÆgÁw PÀÄjvÀÄ

¶74

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¥ÀæPÀgÀtzÀ vÀ¤SÉAiÀÄ°è zÉÆgÉvÀ ¸ÁPÀëöåzsÁgÀUÀ½AzÀ DgÉÆÃ¦ J£ï.®PÀëöätgÁªï ¥ÉÃ±Éé, ªÀåªÀ¸ÁÜ¥ÀPÀ ¤zÉÃð±ÀPÀgÀÄ gÀªÀgÀÄ ¢: 23/11/1987 jAzÀ ¢: 19/12/2012 gÀªÀgÉV£À ¥Àj²Ã®£Á CªÀ¢üAiÀÄ°è MlÄÖ 2,84,38,820-47 UÀ¼À D¹Û ºÉÆA¢zÀÄÝ, F CªÀ¢üAiÀÄ°è DgÉÆÃ¦vÀgÀÄ vÀªÀÄä ªÀÄvÀÄÛ vÀªÀÄä PÀÄlÄA§zÀ ¸ÀzÀ¸ÀåjUÁV ªÀiÁrgÀÄªÀ MlÄÖ RZÀÄð 1,16,33,600-34 UÀ¼ÁVgÀÄvÀÛzÉ. DgÉÆÃ¦vÀgÀÄ ¥Àj²Ã®£Á CªÀ¢üAiÀÄ°è J¯Áè §®è ªÀÄÆ®UÀ½AzÀ UÀ½¹gÀÄªÀ DzÁAiÀÄªÀÅ MlÄÖ 2,27,99,924-75 UÀ¼ÁVzÀÄÝ, ºÉaÑ£À ¥ÀæªÀiÁtzÀ CPÀæªÀÄ D¹ÛAiÀÄ MlÄÖ ªÉÆvÀÛªÀÅ MlÄÖ 1,72,72,496-06 UÀ¼ÁVgÀÄvÀÛªÉ. CAzÀgÉ, DgÉÆÃ¦vÀgÀÄ vÀªÀÄä J¯Áè §®è ªÀÄÆ®UÀ¼À DzÁAiÀÄQÌAvÀ®Æ ±ÉÃPÀqÀ 75-76 gÀµÀÄÖ ºÉaÑ£À ¥ÀæªÀiÁtzÀ CPÀæªÀÄ D¹ÛAiÀÄ£ÀÄß ºÉÆA¢gÀÄªÀÅzÀÄ zÀÈqsÀ¥ÀnÖgÀÄvÀÛzÉ.

¶76

F ºÉaÑ£À D¹Û ¥ÀæªÀiÁtzÀ §UÉÎ DgÉÆÃ¦vÀgÀÄ AiÀiÁªÀÅzÉÃ vÀÈ¦ÛPÀgÀªÁzÀ «ªÀgÀuÉ CxÀªÁ ¯ÉPÀÌ ¤ÃrgÀÄªÀÅ¢®è. »ÃUÁV DgÉÆÃ¦vÀgÀÄ ¨sÀæµÁÖZÁgÀ ¥Àæw§AzsÀPÀ PÁAiÉÄÝ-1988 gÀ PÀ®A 13(1)(E) ¸ÀºÀªÁZÀ£À 13(2) ºÁUÀÆ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉAiÀÄ PÀ®A 177, 192, 203 ªÀÄvÀÄÛ 465 UÀ¼À£ÀéAiÀÄ J¸ÀVgÀÄªÀ ²PÁëºÀð C¥ÀgÁzsÀªÀÅ ¸Á©ÃvÁVgÀÄvÀÛzÉ.

¶77

DzÀÝjAzÀ DgÉÆÃ¦ ©.UÀÄgÀÄ¥Àæ¸Ázï, ªÀÄÄRå EAf¤AiÀÄgï gÀªÀgÀ£ÀÄß CPÀæªÀÄ D¹Û UÀ½PÉAiÀÄ DgÉÆÃ¥ÀUÀ¼Àr ¸ÀPÀëªÀÄ £ÁåAiÀiÁ®AiÀÄzÀ°è C©üAiÉÆÃd£ÉUÉÆ¼À¥Àr¸ÀÄªÀÅzÀÄ CªÀ±ÀåPÀªÁVgÀÄvÀÛzÉ. F ¸AÀ§AzsÀ ¸ÀPÀëªÀÄ ¥Áæ¢üPÁj CxÁðvï DgÉÆÃ¦vÀgÀ£ÀÄß v£À ßÀ ºÄzÀ Ý¬ÄAzÉ vÀ UÉ zÉ ÄºÁPÀ ÄªÀ /ªÀ eÁªÀ iÁqÀ ÄªÀ C¢üPÁgÀ ªÀ Å¼À î ¥Áæ¢üPÁgÀ zÀ À ¥ÀÆªÁð£ÀÄªÀÄw CvÀåUÀvÀåªÁVzÀÄÝ, DgÉÆÃ¦vÀgÀ ªÀÄAdÆgÁw DzÉÃ±ÀªÀ£ÀÄß ¨sÀæµÁÖZÁgÀ ¥Àæw§AzsÀPÀ PÁAiÉÄÝ – 1988 gÀ PÀ®A 19(1)(©) gÀ£ÀéAiÀÄ ¤ÃqÀ®Ä PÉÆÃgÀ¯ÁVzÉ.

¶78

EzÀgÉÆA¢UÉ ¥ÀæxÀªÀÄ ªÀvÀðªÀiÁ£À ªÀgÀ¢, ±ÉÆÃzsÀ£Á ¥ÀAZÀ£ÁªÉÄUÀ¼ÀÄ, CAwªÀÄ ªÀgÀ¢ ºÁUÀÆ CzÀgÀ ¨sÁUÀUÀ¼ÁzÀ DzÁAiÀÄ, D¹Û ªÀÄvÀÄÛ RZÀÄðUÀ¼À «ªÀgÀUÀ½UÉ ¸ÀA§A¢ü¹zÀ PÀqÀvÀUÀ¼À ¥ÀæwUÀ¼À£ÀÄß CªÀUÁºÀ£É PÀ¼ÀÄ»¸À¯ÁVzÉ.

¶79

C¢üPÀÈvÀ eÁÕ¥À£À ¸ÀASÉå: r¦JDgï 2 ¸ÉÃ«E 98 ¢:26/07/1998 gÀvÀÛ vÀªÀÄä UÀªÀÄ£ÀªÀ£ÀÄß ¸É¼ÉAiÀÄÄvÁÛ, CzÀgÀ°è w½¹gÀÄªÀAvÉ ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀªÀÅ «¤Ãvï £ÁgÁAiÀÄt£ï

¶80

¶81

ªÀÄvÀÄÛ EvÀgÀgÀÄ, EArAiÀiÁ AiÀÄÆ¤AiÀÄ£ï ªÀÄvÀÄÛ EvÀgÀgÀÄ (1997) (10) EªÀgÀ jmï Cfð ¸ÀA.340-343/93 gÀ §UÉÎ ¢: 18/12/1997 gÀ ¸ÀªÉÇÃðZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ wÃªÀiÁð£ÀzÀ°è ¤UÀ¢¥Àr¹gÀÄªÀ PÀqÁØAiÀÄ PÁ®«ÄwAiÀiÁzÀ ªÀÄÆgÀÄ wAUÀ¼ÉÆ¼ÀUÁV C©üAiÉÆÃd£Á ªÀÄAdÆgÁw DzÉÃ±ÀªÀ£ÀÄß ºÉÆgÀr¸À¨ÉÃPÀÄ.

¶82

CzÉÃ jÃw, ¸ÀªÉÇÃðZÀÑ £ÁåAiÀiÁ®AiÀÄªÀÅ ¹«¯ï C¦Ã®Ä ¸ÀA.1193/2012 (CgÉÊ¹AUï Omï D¥sï ¸ÉàµÀ¯ï (¹) £ÀA.27535/2010) gÀ°è ¢:31/01/2012 gÀAzÀÄ ºÉÆgÀr¹zÀ DzÉÃ±ÀzÉqÉUÉ vÀªÀÄä UÀªÀÄ£ÀªÀ£ÀÄß ¸É¼ÉAiÀÄ¯ÁVzÀÄÝ, CzÀgÀ°è F PÉ¼ÀPÀAqÀAvÉ DzÉÃ²¹gÀÄvÀÛzÉ.

¶83

"All proposals for sanction placed before any Sanctioning Authority, empowered to grant sanction for the prosecution of a public servant under Sec. 19 of the Prevention of Corruption Act, must be decided within a period of three months of the receipt of the proposal by the concerned authority.

¶84

Where consultation is required with the Attorney General or the Solicitor General or the Adovate General of the State, as the case may be, and the same is not possible within the three months mentioned in clause (a) above, an extension of one month period may be allowed, but the request for consultation is to be sent in writing within the three months mentioned in (a) above. A copy of the said request will be sent to the prosecuting agency or the private complainant to intimate them about the extension of the time limit.

¶85

At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the charge sheet / complaint in the court to commence prosecution within 15 days of the expiry of the afore mentioned time limit."

¶86

¸ÀPÀëªÀÄ ¥Áæ¢üPÁjAiÀÄÄ C©üAiÉÆÃd£Á ªÀÄAdÆgÁw DzÉÃ±À ºÉÆgÀr¸ÀÄªÀ ¸ÀAzsÀ¨sÀðzÀ°è, ªÀiÁ£Àå ¸ÀªÉÇÃðZÀÒ £ÁåAiÀiÁ®AiÀÄªÀÅ ¹«¯ï C¦Ã®Ä ¸ÀA.1193/2012 gÀ°è PÉÃAzÀæ eÁUÀÈvÀ DAiÉÆÃUÀzÀ (¹.«.¹.) F PÉ¼ÀPÀAqÀ ªÀiÁUÀðzÀ±Àð£ÀUÀ¼À£ÀÄß £ÀªÀÄÆ¢¹, CªÀÅUÀ¼À£ÀÄß ¥ÀjUÀtÂ¸ÀÄªÀAvÉ DzÉÃ²¹gÀÄvÀÛzÉ.

¶87

“2(i) Grant of sanction is an administrative act. The purpose is to protect the public servant from harassment

¶88

¶89

by frivolous or vexatious prosecution and not to shield the corrupt. The question of giving opportunity to the public servant at that stage does not arise. The sanctioning authority has only to see whether the facts would prima facie constitute the offence.

¶90

(ii) The competent authority cannot embark upon an inquiry to judge the truth of the allegations on the basis of representation which may be filed by the accused person before the Sanctioning Authority, by asking the I.0. to offer his comments or to further investigate the matter in the light of representation made by the accused person or by otherwise holding a parallel investigation / enquiry by calling for the record/report of his department.

¶91

(vii) However, if in any case, the Sanctioning Authority after consideration of the entire material placed before it, entertains any doubt on any point the competent authority may specify the doubt with sufficient particulars and may request the Authority who has sought sanction to clear the doubt. But that would be only to clear the doubt in order that the authority may apply its mind proper, and not for the purpose of considering the representations of the accused which may be filed while the matter is pending sanction.

¶92

¥Àæ¸ÀÄÛvÀ PÉÆÃjPÉ ¹éÃPÀj¸À¯ÁzÀ ªÀÄÆgÀÄ wAUÀ¼ÉÆ¼ÀUÁV ªÀÄAdÆgÁw DzÉÃ±ÀªÀ£ÀÄß ¸ÀPÀëªÀÄ ¥Áæ¢üPÁjAiÀÄÄ ºÉÆgÀr¸À¢zÀÝ°è, DgÉÆÃ¦vÀgÀ£ÀÄß ¸ÀPÀëªÀÄ £ÁåAiÀiÁ®AiÀÄzÀ°è C©üAiÉÆÃd£ÉUÉÆ¼À¥Àr¸À®Ä ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀªÀÅ C£ÀÄªÀÄw¹zÉ JAzÀÄ ¥ÀjUÀtÂ¹ ªÀÄÄA¢£À PÀæªÀÄ PÉÊUÉÆ¼Àî¯ÁUÀÄªÀÅzÀÄ.

¶93

C©üAiÉÆÃd£Á ªÀÄAdÆgÁwAiÀÄ C¸À®Ä ¥ÀæwAiÀÄÄ PÀbÉÃjAiÀÄ £ÀqÀªÀ½ gÀÆ¥ÀzÀ°ègÀ¨ÉÃPÁVzÀÄÝ, CzÀPÉÌ ¸ÀPÀëªÀÄ ¥Áæ¢üPÁjAiÀÄÄ vÀªÀÄä ºÀ¸ÁÛPÀëgÀªÀ£ÀÄß ±Á¬Ä ¯ÉÃR¤AiÀÄ°è ªÀiÁr, zsÁgÀuÉ ªÀiÁrzÀ ºÀÄzÉÝAiÀÄ£ÀÄß £ÀªÀÄÆ¢¹, PÀbÉÃj ªÉÆºÀj£ÉÆA¢UÉ DzÀµÀÄÖ ¨ÉÃUÀ£É F PÀbÉÃjUÉ PÀ¼ÀÄ»¸À¨ÉÃPÀÄ.

¶94

¸À»/C¥ÀgÀ ¥ÉÆ°Ã¸ï ªÀÄºÁ¤zÉÃð±ÀPÀgÀÄ, PÀ£ÁðlPÀ ¯ÉÆÃPÁAiÀÄÄPÀÛ, ¨ÉAUÀ¼ÀÆgÀÄ.” (sic)

¶95

¶96

No order is passed; reminders after reminders are sent by the Lokayukta seeking sanction. The correspondences galore for over two years. Finally, comes the impugned order. On complete analysis of the issue, after receiving a representation from the petitioner, sanction is refused. It is not a perfunctory or cryptic order of refusal to grant sanction, it is rendered on sound reasoning. On every item that is found in the final report, they are prima facie analyzed by the Government and the order is passed

¶97

rejecting sanction on 07-08-2017. The order reads as follows:

¶98

¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è «ªÀj¹gÀÄªÀ PÁgÀtUÀ¼À »£Éß¯ÉAiÀÄ°è, ²æÃ ©.UÀÄgÀÄ¥Àæ¸Ázï, ªÀÄÄRå EAf¤AiÀÄgï, PÀ£ÁðlPÀ UÀÈºÀ ªÀÄAqÀ½, ¨ÉAUÀ¼ÀÆgÀÄ (¥Àæ¸ÀÄÛvÀ ªÀÄÄRå EAf¤AiÀÄgï, ¥ÀAZÁAiÀÄvïgÁeï EAf¤AiÀÄgï E¯ÁSÉ, ¨ÉAUÀ¼ÀÆgÀÄ), EªÀgÀ «gÀÄzÀÞ C¸ÀªÀÄ D¹Û ºÉÆA¢zÀ DgÉÆÃ¥ÀPÁÌV ¨sÀæµÁÖZÁgÀ ¥Àæw§AzsÀPÀ PÁAiÉÄÝ 1988gÀ PÀ®A-19(1)(©) gÀrAiÀÄ°è C©üAiÉÆÃd£ÉUÉÆ¼À¥Àr¸À®Ä ¸ÀPÁðgÀzÀ ªÀÄAdÆgÁw ¤ÃqÀ®Ä AiÀiÁªÀÅzÉÃ ¸ÀPÁgÀtUÀ¼ÀÄ E®è¢gÀÄªÀÅzÀjAzÀ F C¢üPÁjAiÀÄ£Àß ¸ÀPÀëªÀÄ £ÁåAiÀiÁ®AiÀÄzÀ°è C©üAiÉÆÃd£ÉUÉÆ¼À¥Àr¸À®Ä ªÀÄAdÆgÁw ¤ÃqÀÄªÀAvÉ PÀ£ÁðlPÀ ¯ÉÆÃPÁAiÀÄÄPÀÛzÀ ºÉZÀÄÑªÀj ¥ÉÆ°Ã¸ï ªÀÄºÁ¤zÉÃð±ÀPÀgÀÄ, ¸ÀPÁðgÀPÉÌ ¸À°è¹gÀÄªÀ PÉÆÃjPÉAiÀÄ£ÀÄß ¸ÀPÁðgÀªÀÅ wgÀ¸ÀÌj¹zÉ.

¶99

PÀ£ÁðlPÀ gÁdå¥Á®gÀ DzÉÃ±Á£ÀÄ¸ÁgÀ ªÀÄvÀÄÛ CªÀgÀ ºÉ¸Àj£À°è ¸À»/- 7/8/17 (ZÀAzÀæºÁ¸À UÀA.vÁ¼ÀÆPÀgÀ)

¶100

¸ÀPÁðgÀzÀ C¢üÃ£À PÁAiÀÄðzÀ²ð, ¹§âA¢ ªÀÄvÀÄÛ DqÀ½vÀ ¸ÀÄzsÁgÀuÉ E¯ÁSÉ, (¸ÉÃªÉUÀ¼ÀÄ – 6).”

¶101

¶102

This order dated 07-08-2017 is called in question by the Lokayukta after about 15 months of its passing by preferring the writ petition on 28-12-2018. The issue now would be whether the Police wing of the Lokayukta would get jurisdiction to challenge the order passed by the Government, based upon the decision of the Cabinet declining to accord sanction i.e., whether the Lokayukta Police have locus to challenge the rejection of sanction?

¶103

The learned counsel for the Lokayukta strenuously contends that the Lokayukta Police have locus to challenge the rejection order of sanction. He would seek to place reliance on the judgment of the Apex Court in the case of STATE OF PUNJAB v. MOHAMMED IQBAL BHATTI reported in (2009)17 SCC 92 . It is not for the first time that the Lokayukta is tending on the path of wanting to raise a challenge to the action of Government in refusing to grant sanction. Plethora of cases are filed before the Court by the Lokayukta against the order of refusal to grant sanction. One such order formed the subject matter in the case of KARNATAKA

¶104

¶105

LOKAYUKTA POLICE v. STATE¹ . This Court rejected the writ petition in terms of its order dated 13-12-2021. The issue therein was whether the Lokayukta could be considered to be an aggrieved person by the act of the State declining to grant sanction. Answering the point, this court had held as follows:

¶106

“…. ….

¶107

10. POINT NO.1: Whether the petitioner can claim to be an aggrieved person by the act of the state declining to grant sanction to prosecute the 3^rd respondent?

¶108

The afore-narrated facts are not in dispute. The facts with regard to the 3^rd respondent joining service and retiring on attaining the age of superannuation or the service that he has rendered in the State Government need not be gone into, as they are not the issues in the case at hand and not the point that has arisen for consideration.

¶109

11. The petitioner in order to buttress his contention that he does possess locus to challenge the orders of refusal to grant sanction, places reliance on the judgment rendered by the Apex Court in the case of STATE OF PUNJAB AND ANOTHER v. MOHAMMED IQBAL BHATTI² , particularly on paragraphs 6, 7 and 8, which read as follows:

¶110

“6. 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

¶111

1 W.P. No.48249 of 2018 decided on 13-12-2021

¶112

2 (2009) 17 SCC 92

¶113

¶114

passing an order for grant of sanction, serious application of mind on the part of the authority concerned 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.

¶115

7. 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 evidence must be considered by it. The sanctioning authority must apply its mind on such material facts and evidence collected during the investigation. Even such application of mind does not appear from the order of sanction, extrinsic evidence 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 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. (See Mansukhlal Vithaldas Chauhan v. State of Gujarat [(1997) 7 SCC 622: 1997 SCC (L&S) 1784: 1997 SCC (Cri) 1120]). The authority concerned cannot also pass an order of sanction subject to ratification of a higher authority. {See State v. Dr. R.C. Anand [(2004) 4 SCC 615: 2004 SCC (Cri) 1380}.]

¶116

8. The High Court called for the entire records. It perused the same. It noticed that several queries were raised but remained unanswered. The departmental proceeding initiated against the respondent was dropped. The recommendations therefore were made not to grant sanction on the basis whereof the aforementioned order dated 15-122003 was passed. A finding of fact has been arrived at by the High Court that no material was placed before

¶117

¶118

the competent authority. Only a communication had been received from the Director, Vigilance Bureau dated 22-6-2004 wherein reference of the letter dated 26-5-2004 was made. It, according to the High Court, was not a new material.”

¶119

(Emphasis supplied)

¶120

The issue before the Apex Court in the said case was, sanction to prosecute the employee therein has been refused by the competent authority on 15-12-2002. Later, the competent authority once again on 14-09-2004, accorded sanction to prosecute the employee therein. The High Court had held that the State had no power to review an order granting sanction having exhausted its jurisdiction once. The Apex Court was considering the said order passed by the High Court and holds that an order refusing to accord sanction may attract judicial review by superior Courts. The Apex Court also notices that the High Court after calling the entire records and perusing the same, had accepted that there was no material placed before the sanctioning authority and no case was made out for grant of sanction. The Apex Court further holds that, it was not a case where fresh materials were placed before the sanctioning authority and affirmed the order passed by the High Court, setting aside the subsequent order of grant of sanction without there being any fresh material and that was the issue before the Apex Court.

¶121

12. The core issue was not whether the investigating agency who had investigated into the matter had locus or can be construed to be an aggrieved person of an order refusing to accord sanction. The aggrieved person therein was the State Government as its order granting sanction after having refused was called in question by the employee. It is thus, the State of Punjab became aggrieved by the order passed by the High Court. This, in my considered view, will not clothe the petitioner to file a writ petition calling in question the orders refusing the grant of sanction by the competent authority to prosecute the 3^rd respondent. The words used by the Apex Court on the aforesaid facts is that, an order refusing to grant sanction ‘may’ attract judicial review by the superior Courts. Since that was not the issue, the same is not the ratio that is laid down by the Apex Court that an order refusing to accord sanction can be called in

¶122

¶123

question by the Investigating Officer. It is trite law that a judgment is treated as a precedent for the law that is laid down in the facts of the case and those facts would come in aid in the subsequent decision.

¶124

13. Reference to the judgment of the Apex Court in the case of HARYANA FINANCIAL CORPORATION v. JAGDAMBA OIL MILLS³ , in the circumstances is apposite. The Apex Court holds as follows:

¶125

“ 20. In Home Office v. Dorset Yacht Co. [(1970) 2 All ER 294: 1970 AC 1004 (HL)] Lord Reid said (at All ER p. 297g-h), “Lord Atkin's speech … is not to be treated as if it were a statutory definition. It will require qualification in new circumstances”. Megarry, J. in (1971) 1 WLR 1062 observed:“One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament.” And, in Herrington v. British Railways Board [(1972) 2 WLR 537 [sub nom British Railway Board v. Herrington, (1972) 1 All ER 749 (HL)]] Lord Morris said: (All ER p. 761c)

¶126

“There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.”

¶127

21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

¶128

22. The following words of Hidayatullah, J. in the matter of applying precedents have become locus classicus: (Abdul Kayoom v. CIT [AIR 1962 SC 680], AIR p. 688, para 19)

¶129

“19. … Each case depends on its own facts and a close similarity between one case and another is not enough because even a

¶130

3 (2002) 3 SCC 496

¶131

¶132

single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.”

¶133

***

¶134

“Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.”

¶135

(Emphasis supplied)

¶136

In the light of the facts that went into the judgment in MOHAMMED IQBAL BHATTI’S case and the law laid down by the Apex Court in JAGADAMBA OIL MILLS’ case, the contention of the learned counsel for the petitioner that the petitioner is aggrieved by the refusal of sanction and can maintain the writ petition deserves to be rejected and the point (i) that has arisen is to be held against the petitioner and it is accordingly held.”

¶137

This Court framed another issue whether there was an error committed by the Government in looking into entire material on record while declining to grant sanction. This issue again is answered in the following manner:

¶138

“14. POINT NO.2: Whether there is an error committed by the competent authority in looking at the entire material on record while declining to grant sanction to prosecute the 3^rd respondent?

¶139

¶140

Before considering the subject point, it is necessary to notice Section 19 of the Act. Section 19 reads as follows:

¶141

“19. 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 save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 –

¶142

(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;

¶143

(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 sanction of the State Government, of that Government;

¶144

(c) in the case of any other person, of the authority competent to remove him from his office.

¶145

Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-section, unless-

¶146

(i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and

¶147

(ii) the court has not dismissed the complaint under section 203 of the Code of Criminal Procedure, 1973 and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding:

¶148

Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority,

¶149

¶150

the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant:

¶151

Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt:

¶152

Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month:

¶153

Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary.

¶154

Explanation.—For the purposes of sub-section (1), the expression "public servant" includes such person-

¶155

(a) who has ceased to hold the office during which the offence is alleged to have been committed; or

¶156

(b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed."

¶157

(Emphasis supplied)

¶158

Placing reliance on Section 19 of the Act, the submission made by the learned counsel appearing for the petitioner is that, the competent authority has looked into the entire material collected during investigation and has commented upon the nature of investigation done. It is the submission of the learned counsel that the competent authority is not empowered to look into the entire material in an administrative act of granting or refusing sanction and it is a matter of trial that the Government servant will have to undergo on the basis of the material collected during the investigation.

¶159

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15. The issue requires to be considered, at the outset considering the judgments of the Apex Court, as to whether the entire material concerning the Government servant has to be looked into by the competent authority, while considering the grant or refusal of sanction for prosecution. The Apex Court in the case of MANSUKHLAL VITHALDAS CHAUHAN v. STATE OF GUJARAT⁴ , has held as follows:

¶161

“14. From a perusal of Section 6, it would appear that the Central or the State Government or any other authority (depending upon the category of the public servant) has the right to consider the facts of each case and to decide whether that “public servant” is to be prosecuted or not. Since the section clearly prohibits the courts from taking cognizance of the offences specified therein, it envisages that the Central or the State Government or the “other authority” has not only the right to consider the question of grant of sanction, it has also the discretion to grant or not to grant sanction.

¶162

19. Since the validity of “sanction” depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority “not to sanction” was taken away and it

¶163

4 (1997) 7 SCC 622

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¶165

was compelled to act mechanically to sanction the prosecution.

¶166

32. By issuing a direction to the Secretary to grant sanction, the High Court closed all other alternatives to the Secretary and compelled him to proceed only in one direction and to act only in one way, namely, to sanction the prosecution of the appellant. The Secretary was not allowed to consider whether it would be feasible to prosecute the appellant; whether the complaint of Harshadrai of illegal gratification which was sought to be supported by “trap” was false and whether the prosecution would be vexatious particularly as it was in the knowledge of the Government that the firm had been blacklisted once and there was demand for some amount to be paid to the Government by the firm in connection with this contract. The discretion not to sanction the prosecution was thus taken away by the High Court.

¶167

34. Learned counsel for the State of Gujarat contended that the judgment passed by the High Court cannot be questioned in these proceedings as it had become final. This contention is wholly devoid of substance. The appellant has questioned the legality of “sanction” on many grounds one of which is that the sanctioning authority did not apply its own mind and acted at the behest of the High Court which had issued a mandamus to sanction the prosecution. On a consideration of the whole matter, we are of the positive opinion that the sanctioning authority, in the instant case, was left with no choice except to sanction the prosecution and in passing the order of sanction, it acted mechanically in obedience to the mandamus issued by the High Court by putting the signature on a pro forma drawn up by the office. Since the correctness and validity of the “sanction order” was assailed before us, we had necessarily to consider the High Court's judgment and its impact on the “sanction”. The so-called finality cannot shut out the scrutiny of the judgment in terms of actus curiae neminem gravabit as the order of the Gujarat High Court in directing the sanction to be granted, besides being erroneous, was harmful to the interest of the appellant, who had a right, a valuable right, of fair trial at every stage, from the initiation till the conclusion of the proceedings.”

¶168

(Emphasis supplied)

¶169

¶170

In a later judgment the Apex Court in the case of STATE OF HIMACHAL PRADESH v. NISHANT SAREEN⁵ has held as follows:

¶171

“7. 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 the 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. In Mansukhlal Vithaldas Chauhan v. State of Gujarat [(1997) 7 SCC 622: 1997 SCC (Cri) 1120: 1997 SCC (L&S) 1784] this Court observed: (SCC p. 631, para 17)

¶172

“17. … Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty.”

¶173

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 a sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the

¶174

5 (2010) 14 SCC 527

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same materials, thus, may keep on changing and there may not be any end to such statutory exercise.

¶177

14. 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 153-2008 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.”

¶178

(Emphasis supplied)

¶179

Referring to the aforesaid judgment, the Apex Court in a later judgment in the case of CBI v. ASHOK KUMAR AGGARWAL⁶ , considering Section 19 of the Act, has held as follows:

¶180

“13. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

¶181

14. It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to

¶182

6 (2014) 14 SCC 295

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¶184

the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.

¶185

15. Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge-sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non-application of mind. (Vide Gokulchand Dwarkadas Morarka v. R. [(1947-48) 75 IA 30: (1948) 61 LW 257: AIR 1948 PC 82]; Jaswant Singh v. State of Punjab [AIR 1958 SC 124: 1958 Cri LJ 265] , Mohd. Iqbal Ahmed v. State of A.P. [(1979)4 SCC 172: 1979 SCC (Cri) 926], State v. Krishanchand Khushalchand Jagtiani [(1996) 4 SCC 472: 1996 SCC (Cri) 755], State of Punjab v. Mohd. Iqbal Bhatti [(2009) 17 SCC 92: (2011) 1 SCC (Cri) 949], Satyavir Singh Rathi, ACP v. State [(2011) 6 SCC 1: (2011) 2 SCC (Cri) 782] and State of Maharashtra v. Mahesh G. Jain [(2013) 8 SCC 119: (2014) 1 SCC (Cri) 515: (2014) 1 SCC (L&S) 85] .)

¶186

16. In view of the above, the legal propositions can be summarised as under:

¶187

16.1. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused

¶188

¶189

and on the basis of which, the competent authority may refuse sanction.

¶190

16.2. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.

¶191

16.3. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

¶192

16.4. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.

¶193

16.5. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.”

¶194

(Emphasis supplied)

¶195

In the light of the afore-quoted judgments of the Apex Court, what would unmistakably emerge is that, the competent authority to accord sanction for prosecution should satisfy the Court that at the time of grant of sanction adequate material was made available by the authority, who sought sanction. The Apex Court further holds that Courts should bear in mind that sanction lifts the bar of prosecution and it is not an acrimonious exercise but a solemn and sacrosanct act, which affords protection to the government servant against frivolous prosecution and a weapon to discourage vexatious prosecution. On the said principle, the legal proposition summarized by the Apex Court is found at paragraph 16. In paragraph 16.1 of the said summary, the Apex Court holds that the prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of

¶196

¶197

witnesses, recovery memos, draft charges and all other relevant material. The authority has to look into the complete record and undertake a conscious scrutiny of the whole record independently, applying its mind while discharging its duty to give or withhold sanction.

¶198

16. It is again summarized that the order of sanction should make it evident that the authority was aware of all the relevant material and had applied its mind to all such relevant material….”

¶199

A coordinate Bench of this Court again considering the very

¶200

issue in SUPERINTENDENT OF POLICE, KARNATAKA

¶201

LOKAYUKTA v. STATE OF KARNATAKA in W.P.No.9000 of 2014 decided on 11^th August, 2023 , has rejected the petition filed by the Lokayukta challenging an order of sanction following the afore-quoted judgment of this Court. Certain developments later have emerged. Another coordinate Bench has refused to follow the judgment rendered by this Court and the coordinate Bench in W.P.No.9000 of 2014 and has referred the matter to be placed before a larger Bench. Taking cue from the said reference to a larger Bench, the learned counsel for the Lokayukta submits that this issue should be kept pending till the larger Bench decides upon the locus of the Lokayukta. I decline to accept the said submission of the learned counsel for the Lokayukta, as mere reference to a

¶202

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larger Bench would not mean that this Court should hold its hands, wait for the decision of the larger Bench and then take up the issue, as it is trite law that mere reference to a larger Bench would not mean that precedent would lose its precedential value. Here the precedent is not one but there are two orders – one by this Court and the other by the coordinate Bench following the order passed by this Court.

¶204

The Apex Court, in the case of ASHOK SADARANGANI

¶205

v. UNION OF INDIA⁷ , has held as follows:

¶206

“….

¶207

23. The learned Additional Solicitor General contended that having regard to the divergent views expressed by different Benches of this Court, when the same issue surfaced in Gian Singh v. State of Punjab [(2010) 15 SCC 118] , wherein the decisions in B.S. Joshi case [(2003) 4 SCC 675: 2003 SCC (Cri) 848], Nikhil Merchant case [(2008) 9 SCC 677: (2008) 3 SCC (Cri) 858] and Manoj Sharma case [(2008) 16 SCC 1: (2010) 4 SCC (Cri) 145] came to be considered, the Bench comprised of two Judges, was of the view that the said decisions required reconsideration and directed that the matter be placed before a larger Bench to consider the correctness of the said three decisions. Shri Jain urged that as the same issue which was involved in the present case was also the subjectmatter of the reference to a larger Bench , this Court should abstain from pronouncing judgment on the issue which was the subject-matter in the said reference. Shri Jain urged that in the circumstances mentioned hereinabove, no relief could be given

¶208

7 (2012) 11 SCC 321

¶209

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to the petitioners on the writ petition and the same was liable to be dismissed.

¶211

26. Furthermore, the issue, which has been referred to a larger Bench in Gian Singh case [(2010) 15 SCC 118] in relation to the decisions of this Court in B.S. Joshi case [(2003) 4 SCC 675 : 2003 SCC (Cri) 848] , Nikhil Merchant case [(2008) 9 SCC 677 : (2008) 3 SCC (Cri) 858] , as also Manoj Sharma case [(2008) 16 SCC 1 : (2010) 4 SCC (Cri) 145] , deals with a situation which is different from that of the present case. While in the cases referred to hereinabove, the main question was whether the offences which were not compoundable, under Section 320 CrPC could be quashed under Section 482 CrPC, in Gian Singh case [(2010) 15 SCC 118] the Court was of the view that a non-compoundable offence could not be compounded and that the courts should not try to take over the function of Parliament or the executive. In fact, in none of the cases referred to in Gian Singh case [(2010) 15 SCC 118] , did this Court permit compounding of non-compoundable offences. On the other hand, upon taking various factors into consideration, including the futility of continuing with the criminal proceedings, this Court ultimately quashed the same.

¶212

29. As was indicated in Harbhajan Singh case [Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135] , the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh case [(2010) 15 SCC 118] need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field .”

¶213

(Emphasis supplied)

¶214

The Apex Court holds that pendency of a reference to a larger Bench does not mean all other proceedings involving the same

¶215

¶216

issue would remain stayed, till a decision was rendered in the referred matter. Till such time the decisions cited at the Bar are not modified or altered, they will continue to hold the field. Identical view is again taken by the Apex Court in the case of MANAGER, NATIONAL INSURANCE COMPANY LIMITED v. SAJU P.PAUL , reported in (2013) 2 SCC 41 holding that mere reference to a larger Bench, on an issue, would not mean that the judgment under reference would lose its precedential value. Therefore, the issue pending before the Division Bench would not hold the hands of this Court, to answer the issue following the earlier order which already answers the issue, akin to the issue in the case at hand. For the aforesaid reasons the petition preferred by the Lokayukta in W.P.No.58257 of 2018 is to be rejected for want of locus, as it would not fit into the phrase “person aggrieved”.

¶217

Insofar as the companion petition viz., Criminal Petition No.809 of 2019 preferred by the petitioner, calling in question pendency of crime against him is concerned, in the light of the finding rendered in the companion petition in affirming the order of rejection of sanction, the crime that is pending in Crime No.91 of

¶218

¶219

2012 cannot proceed any further. It cannot be said that the sword of crime should continue to hang on the head of the petitioner despite it losing its efficacy. Therefore, in the light of the progress of the crime in Crime No.91 of 2012 completely being annihilated by the action of the State rejecting sanction, I deem it appropriate to obliterate the entire crime.

¶220

A perusal at the final report would indicate huge wealth amassed by the petitioner to the tune of beyond 100% in several items. The State could not have slept over the communication for sanction for more than two years and then woke up and one fine day reject the sanction. Though the order of rejection does contain reasons, in the peculiar facts of this case, any amount of reasons would not suffice the foundation of rejection. Be that as it is, since this Court has already answered the issue of locus , it would not want to traverse any further.

¶221

¶222

For the aforesaid reasons, the following:

¶223

O R D E R

¶224

(i) Writ Petition No.58257 of 2018 is rejected .

¶225

(ii) Criminal Petition No.809 of 2019 is allowed and the Crime in Crime No.91 of 2012 registered by the Bangalore City Division Police Station, Karnataka Lokayukta stands quashed.

¶226

Sd/JUDGE

¶227

bkp CT:MJ

Sri B Guruprasad v. the State of Karnataka

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Sri B Guruprasad v. the State of Karnataka

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