Sri Virupakshappa Mallapa Pujar Vs the Director of Municipal Administration and Disciplinary Authority

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER OF SANCTION BEARING NO.837349/DMA/ENQ2/BGM/17/2022 DATED 20.07.2024 ISSUED BY THE RESPONDENT IN SO FAR AS IT RELATES TO THE PETITIONER AS AT ANNX-A AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

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ORAL ORDER

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The petitioner is before this Court seeking for the following reliefs:

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i) Issue a writ of certiorari or any other appropriate writ order, direction, quashing the impugned order of sanction bearing No.837349/DMA/ENQ2/BGM/17/2022 dated 20.07.2024 issued by the respondent in so far as it relates to the petitioner as at Annexure-A and

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ii) GRANT such other relief or reliefs as may deem fit to grant in the facts and circumstances of the case, in the ends of justice.

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Essentially, what has been challenged by the petitioner is

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the grant of sanction by respondent No.1 for criminal prosecution of the petitioner for offences under Section 7 of the Prevention of Corruption Act, 1988.

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The submission of learned counsel for the petitioner is that there is an improper application of mind by the Sanctioning Authority inasmuch as the relevant factors have not been taken into account, more particularly, that the amount was not recovered in the trap from the petitioner but was recovered from someone else. There are contradictions in the mahazar, which is apparent from a reading of the mahazar, inasmuch as at one place it is indicated that when the right hand of the petitioner had been immersed in sodium carbonate solution, the solution turned pink. At another place, it is stated that when the left hand was immersed in a sodium carbonate solution, the solution turned pink, whereas when the right hand was immersed in the same solution, the solution did not turn pink.

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Further contention has been raised that the amount due on the bills having already been paid to the complainant on 14.07.2022, the question of a complaint being filed on 19.07.2022 alleging that there was a demand made cannot be acceptable, and in this regard, the submission of the learned counsel for the petitioner is that there is no

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application of mind. As such, a sanction could not have been accorded to the petitioner.

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Learned counsel for the petitioner relies on the decision of a co-ordinate bench of this Court in the case of AMEER JAN VS STATE reported in ILR 2001 KAR 371 , more particularly, para Nos.9 and 10 thereon, which are reproduced hereunder for easy reference.

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"9. It is a pre-requisite of law under the Prevention of Corruption Act that the sanctioning Authority namely the State Government or its designated officer has to examine the case and decide as to whether a prosecution should be sanctioned. The reason for this is because there may be instances where a prosecution is unjustified and in the decision reported in O.S.SHARMA vs STATE OF MAHARASTRA. I have, as early as in 1993 laid down that where the incident is a petty one and where it is a single isolated instance a prosecution would be unjustified because the Government has the power to impose sufficiently seriously penalties through a disciplinary proceeding. Not only would this result in speedy punishment but more importantly, the special Courts which are today hopelessly overburdened with the number of petty cases would then be able to concentrate on rendering speedy justice by hearing and disposing of the bigger and more important cases. This is one of the primary functions of the sanctioning Authority which has been totally and completely overlooked. The department shall take note of this and shall bring it to the notice of each of the sanctioning authorities and place the observations of this Court before the concerned officer in every case.

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10. With monotonous regularity, the present case included the function of examining as to

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whether sanction should be accorded or not is being dealt with in the most routine, cavalier and irresponsible manner. Where the sanctioning Authority does not examine the record and where the sanctioning Authority does not apply its mind and furthermore, where the sanction order itself is defective the entire prosecution gets vitiated. The present case is a classic instance where the evidence has conclusively established the charges but where the entire prosecution has been vitiated because of total non-application of mind on the part of the sanctioning Authority and a defective sanction order results. In effect, the prosecuting Authority, through such a state of affairs, has ensured the acquittal of the accused in a case which should have ended in a conviction. The department will take very serious note of the observations of this Court and ensure that no such lapses occur in even a single case in future."

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By relying on Ameer Jan's case, submission of learned counsel for the petitioner is that while passing an order of sanction, the Sanctioning Authority has to apply its mind to the facts of the case, and if the case warrants sanction to prosecute, then the sanction has to be accorded. If it does not, sanction ought not to be accorded. On that basis, it is submitted that in the present matter, there is complete non-application of mind and as such, the order of sanction which has been granted is required to be set aside.

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He also relies on another decision of the Co-ordinate Bench of this Court in the case of STATE OF

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KARNATAKA, BY KARNATAKA LOKAYUKTHA VS T.R.KRISHNAMURTHY, PSI, BIDADI reported in ILR

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2003 KAR 2980 , more particularly, para 12 thereof,

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which is reproduced hereunder for easy reference.

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"12. Now, I refer to Section 19 of the Prevention of Corruption Act, 1988, (for short, the Act) relating to necessity of previous sanction for prosecution Section 19 of the Act provides for previous sanction for prosecution in the case of a person employed in connection with the affairs of the Union, State Government or other Authority. Further, u/s 19(3) of the Act, on the ground of irregularity of sanction, no finding of the Court can be reversed also no Court can stay the proceedings in the cases because of irregularity in sanction or on any other ground. It is not necessary that the Authority competent to give sanction for prosecution or the Authority competent to remove the public servant should be vertically superior in the hierarchy, in which the officer of the public servant exists. The power to give sanction for prosecution can be conferred on any Authority. Such Authority may be of the Department, in which the public servant is working or an outside Authority. All that is required is that the Authority must be in a position to appreciate the material collected against the public servant to judge whether the prosecution contemplated is frivolous or speculative. In the instant case, admittedly, the DIG of Police, Central Range, has accorded sanction to prosecute the Accused. As per Document No (3) viz, Mysore State Police Services (Recruitment) Rules, 1967, with regard to Sub-Inspector of Police, the appointing Authority is the Deputy Inspector General. Therefore, the sanction accorded by the DIG, Central Range, who is the appointing Authority, is valid. The learned Special Judge has discharged the Accused of the offences alleged him on the score that sanction accorded was not by the appointing Authority of

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the Accused, without referring to Mysore Police Services (Recruitment) Rules, 1967."

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Sri.Venkatesh Arabatti, learned counsel appearing for respondent No.2 would firstly submit that if a person is aggrieved by a sanction, that person would be required to approach the Criminal Court seized of the matter and lead proper evidence to establish as to why the sanction ought not to have been granted and or seek discharge from the proceedings. A writ petition challenging the same is not maintainable, and in that regard, he relies upon the decision of the Hon'ble Apex Court in the case of

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STATE OF PUNJAB AND ANOTHER VS. MOHAMMED

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IQBAL BHATTI reported in (2009) 17 SCC 92 , more particularly, para 6 thereof, which is reproduced hereunder for easy reference.

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"Although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the same, however, would not mean that power once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the Authority concerned is imperative. The legality and/or validity of the order granting sanction would be subject to review by the

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criminal courts. An order refusing to grant sanction may attract judicial review by the Superior Courts."

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By relying on Mohammed Iqbal Bhatti's case , his submission is that the legality and or invalidity of the order granting sanction would be subject to review by the Criminal Courts. However, an order refusing to grant a sanction would attract judicial review by the Superior Courts and in that background, he submits that the legality and or validity, the application of mind or nonapplication of mind would have to be decided by the Criminal Courts and not this Court. His submission is that any such allegation relating to disputed question facts, this Court, in the exercise of its writ jurisdiction, would not be able to do so.

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Heard Sri M.Krishnappa, learned counsel for the petitioner and Sri.Venkatesh Arabatti, learned counsel for respondent No.2. Perused the records.

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The points that would require to be considered by this Court are;

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1. Whether the person against whom a sanction for prosecuting the offences of corruption is granted could challenge

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such an order of sanction by a writ petition?

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2. In the present case, is there a requirement for this Court to interfere with the order of sanction granted by the sanctioning Authority?

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3. What order?

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I answer the above points as follows

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Answer to Point No.1 :- Whether the person against whom a sanction for prosecuting the offences of corruption is granted could challenge such an order of sanction by a writ petition?

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13.1. A sanction is required to be granted by a competent

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authority having jurisdiction. In the event of the Sanctioning Authority having no jurisdiction, this Court could always intercede in the matter. Insofar as the application of mind is concerned, if ex facie it is clear that there is no proper application of mind, this Court could come to the rescue of the person approaching this Court to render justice, and when it is ex facie clear that there is non-application of mind, this Court could intercede in the matter to set aside the order of sanction.

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13.2. However, when there are disputed questions of fact, it would not be proper for this Court to intercede inasmuch as those disputed questions of fact would be required to be left to be decided by the Criminal Court seized of the matter to enable the parties to lead their respective evidence and be subjected to cross-examination where necessary.

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13.3. Thus, I answer Point No.1 by holding that, depending on the nature of allegations made, if the sanctioning Authority did not have jurisdiction, this Court would have to intercede in the matter of sanction of prosecution. However, insofar as disputed questions of fact are concerned, that would depend on whether they are ex facie evident or not.

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Answer to Point No.2 :- In the present case, is there a requirement for this Court to interfere with the order of sanction granted by the sanctioning Authority?

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14.1. In the present case, contention has been taken that

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there is no demand and there is no acceptance. Further contention has been taken that the hand,

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which was dipped in the sodium carbonate solution, was at one place the left hand and at the other place, the right hand. While categorically admitting that at another place, when the right hand was dipped into the solution, the solution did not change colour. Though there are contentions raised that there is no demand and acceptance, the order of sanction also reflects that the Sanctioning Authority has considered the voice-recorded statement. In my considered opinion, these are all disputed fact, which cannot ex-facie reveal as to whether the application of mind is made properly or not. Recovery has been made, it cannot be said that there is non application of mind. These would require a trial to be conducted to ascertain if at all those contentions, which have been taken up by the petitioner in the present matter, are true and correct or not. Inasmuch as appreciating those disputed questions of fact by this court could well result in injustice being caused to the petitioner

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himself, since the same would have to be done in a summary manner.

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14.2. The decision, which has been relied upon by the learned counsel for the petitioner in Ameer Jan's case , was one which was rendered after criminal trial and the conviction order had been challenged in a criminal appeal and it is in a criminal appeal by relying upon the evidence which had been recorded that the co-ordinate bench of this Court came to a categorical conclusion that there is non-application of mind by placing reliance on the evidence on record.

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14.3. In the present matter, there is no evidence on record. Criminal trial is yet to commence and as such, I am unable to accept the submission of the learned counsel for the petitioner that Ameer Jan's case would be applicable to the present matter. The present matter is a writ petition challenging the order of sanction. Ameer Jan's case is one where, after conviction, the conviction order was

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challenged on the ground that when the sanction was accorded, there was no proper application of mind in granting the order of sanction. In that view of the matter, the said decision is not applicable.

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14.4. The decision of the Hon'ble Apex Court in Mohammed Iqbal Bhatti's case , being clear that the legality and or validity of the order granting sanction would be subject to review by the Criminal Courts, I deem it fit to leave the parties to approach the Criminal Courts to establish improper application of mind as regards the disputed question of fact after leading cogent evidence.

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With the above observations, the petition stands dismissed .

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Sd/(SURAJ GOVINDARAJ) JUDGE

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NBM

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List No.: 1 Sl No.: 34

Sri Virupakshappa Mallapa Pujar v. the Director of Municipal Administration and Disciplinary Authority

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Sri Virupakshappa Mallapa Pujar v. the Director of Municipal Administration and Disciplinary Authority

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