CRIMINAL PETITION No.16208 of 2014 30-01-2017 Buddi Chandra Mohan, S/o.late B.Krishna Murthy Petitioner The State of Andhra Pradesh,
HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY
CRIMINAL PETITION No.16208 of 2014
30-01-2017
Buddi Chandra Mohan, S/o.late B.Krishna Murthy Petitioner
The State of Andhra Pradesh, represented by its Standing Counsel for ACB Cases,
High Court, Hyderabad Respondent
Counsel for the petitioner:Sri V. Pattabhi
Counsel for the respondent: Sri Udaya Bhaskara Rao,
Special Standing Counsel for ACB
<GIST:
>HEAD NOTE:
? CASES REFERRED:
1)(2012) 13 SCC 614
2)(2013) 3 SCC 330
3)(2013) 9 SCC 293
4)(2013) 10 SCC 591
5)(2000) 2 SCC 636
6)2014 (2) ALD (Crl.) 617
7)2004 (1) ALD 620
8)(2009) 1 SCC 180
9)(1999) 1 SCC 31
10 (2006) 4 SCC 57
11)(2016) 1 SCC 560
12)2014(1)ALD(Cri)120
13)2010 (3) ALD 452 (DB)
14)2012 (2) ALD 425
15)2016 (1) ALT (Crl.) 350 (A.P)
16)(2010) 12 SCC 497
17)(2011) 7 SCC 167
18)AIR 1996 SC 901
19)2000 (1) ALD (Crl.) 362 (SC) = 2000 (1) SCR 417
20)(2007) 1 SCC 1
21)(2013) 16 SCC 728
22)(1984) 2 SCC 183
23)2004 CriLJ 3892
24)(2014) 16 SCC 807
25)1999 CriLJ 3696
26)2014 LawSuit (Chh) 232 = 2014 CriLJ 4701
27)1998 (2) ALD (Crl.) 359 (SC)
THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY
CRIMINAL PETITION No.16208 OF 2014
ORDER:
This petition is filed under Section 482 Cr.P.C seeking to
quash the proceedings in C.C.No.69 of 2013 on the file of the
Special Court for trial of ACB cases in Rayalaseema Region,
Kurnool.
2 The facts leading to the filing of the present petition are,
briefly, as follows:
The petitioner joined the Government service on 05.12.1978
as Probationary Deputy Tahsildar and got promotions from time to
time. The petitioner worked as Special Grade Deputy Collector,
Srisailam Project with effect from 01.03.2009 to 28.10.2009. The
petitioner retired from service on attaining the age of
superannuation on 31.12.2010. On receiving credible information,
that the petitioner has acquired disproportionate assets, while
functioning as a public servant, the Inspector of Police, ACB
registered a case in Crime No.11/RCA-KUR/2009 dated
21.11.2012, against the petitioner, for the offences punishable
under Sections 13 (2) r/w 13 (1) (e) of Prevention of Corruption Act,
1988 (the P.C.Act). After completion of investigation, the
Investigating Officer laid charge sheet on 12.11.2013 against the
petitioner for the aforesaid offences. The learned Special Judge has
taken cognizance of the offences under Sections 13 (2) r/w 13 (1)
(e) of the P.C.Act and numbered the same as C.C.No.69 of 2013.
As per the allegations made in the charge sheet, the petitioner has
acquired disproportionate assets worth of Rs.1,18,11,883/- to the
known sources of his income.
3 The first and foremost contention of the learned counsel for
the petitioner is that this court can quash the criminal proceedings
at any stage. On the other hand, the learned standing counsel for
the respondent ACB contended that the trial was commenced
and as many as 88 witnesses were examined on behalf of the
prosecution and hence this is not the stage to quash the
proceedings against the petitioner.
4 To substantiate the argument, the learned counsel for the
petitioner has drawn the attention of this Court to the following
decisions.
Satish Mehra vs. State (NCT of Delhi) & Another wherein the
Honble apex Court at Para No.14 held as follows:
14. The power to interdict a proceeding either at the threshold
or at an intermediate stage of the trial is inherent in a High Court
on the broad principle that in case the allegations made in the
FIR or the criminal complaint, as may be, prima facie do not
disclose a triable offence, there can be reason as to why the
accused should be made to suffer the agony of a legal proceeding
that more often than not gets protracted. A prosecution which is
bound to become lame or a sham ought to be interdicted in the
interest of justice as continuance thereof will amount to an abuse
of the process of the law. This is the core basis on which the
power to interfere with a pending criminal proceeding has been
recognised to be inherent in every High Court.
Rajiv Thapar vs. Madan Lal Kapoor wherein the Honble
apex Court at Para No.30 held as follows:
30. Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps to determine
the veracity of a prayer for quashment raised by an accused by
invoking the power vested in the High Court under Section 482
CrPC:
30.1. Step one: whether the material relied upon by the
accused is sound, reasonable, and indubitable i.e. the material is
of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the
accused would rule out the assertions contained in the charges
levelled against the accused i.e. the material is sufficient to reject
and overrule the factual assertions contained in the complaint i.e.
the material is such as would persuade a reasonable person to
dismiss and condemn the factual basis of the accusations as
false?
30.3. Step three: whether the material relied upon by the
accused has not been refuted by the prosecution/complainant;
and/or the material is such that it cannot be justifiably refuted
by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result
in an abuse of process of the court, and would not serve the ends
of justice?
30.5. If the answer to all the steps is in the affirmative, the
judicial conscience of the High Court should persuade it to quash
such criminal proceedings in exercise of power vested in it under
Section 482 CrPC. Such exercise of power, besides doing justice
to the accused, would save precious court time, which would
otherwise be wasted in holding such a trial (as well as
proceedings arising therefrom) specially when it is clear that the
same would not conclude in the conviction of the accused.
As per the principle enunciated in the above cited cases, High
Court, at any stage, can quash the proceedings against the
accused if the material produced by him clearly rules out the
allegations made against him and such allegations would not end
in conviction. The Honble apex Court reiterated and reaffirmed the
principle enunciated in the cases cited supra in Prashant Bharti
vs. State (NCT of Delhi) and Umesh Kumar vs. State of Andhra
Pradesh .
5 On the other hand, the learned standing counsel for the ACB
has drawn the attention of this Court to the ratio laid down in
G.Sagar Suri vs. State of U.P wherein the Honble apex Court at
para No.9 held as follows:
9. In State of Karnataka v. L. Muniswamy {(1977) 2 SCC 699}
this Court said that in the exercise of the wholesome power under
Section 482 of the Code the High Court is entitled to quash a
proceeding if it comes to the conclusion that allowing the
proceeding to continue would be an abuse of the process of the
court or that the ends of justice require that the proceedings are
to be quashed.
As per the principle enunciated in the case cited supra, this Court
can quash the criminal proceedings by exercising inherent
jurisdiction under Section 482 Cr.P.C. to prevent abuse of process
of law and thereby to secure the ends of justice. Having regard to
the facts and circumstances of the case and also the principle
enunciated in the cases cited supra, I am unable to accede to the
contention of the learned standing counsel that the present
petition is liable to be dismissed in limine in view of
commencement of trial.
6 The second contention of the learned counsel for the
petitioner is that Inspector of Police is not entitled to investigate
into the offence punishable under Section 13(e) of the P.C. Act. He
further submitted that the investigating officer who was working as
Sub-Inspector of Police was officiated as Inspector of Police and
hence on that ground also the investigation conducted by the
investigating officer is not legally sustainable. In such
circumstances, forcing the petitioner to face the rigour of criminal
trial is nothing short of abuse of process of law.
7 On the other hand, the learned standing counsel for the ACB
submitted that there is no bar to investigate into the matter by the
Inspector of Police in view of the provisions of the P.C. Act. To
substantiate the argument, the learned counsel for the petitioner
has drawn the attention of this Court to the ratio laid down in
V.Suryanarayana vs. State wherein this Court at Para No.17 held
as follows:
17. The learned Senior Counsel for the petitioner placed
reliance upon Section 17(c) of the P.C.Act which contemplates
that a Deputy Superintendent of Police or a Police Officer of
equivalent rank alone is entitled to investigate any offence
punishable under the P.C.Act in residuary circumstances not
covered by Sections 17(a) and 17(b). Where the case is covered by
Section 17(a), the question of Section 17(c) being applicable does
not arise. Indeed, Section 17 of the P.C.Act is mandatory.
However, where Sri G.Sudhakar is an Inspector of Police of the
Delhi Special Police Establishment, Section 17(a) of the P.C.Act
empowers him to conduct the investigation. I therefore reject the
contention of the learned Senior Counsel for the petitioner that
the investigation is bad being in violation of Section 17 of the
P.C.Act.
As per the principle enunciated in the case cited supra, the
Inspector of Police is competent to investigate into the ACB cases,
in view of Section 17 of the P.C. Act. The question raised in the
case on hand is identical to the issue decided in the case cited
supra. Having regard to the facts and circumstances of the case
and also the principle enunciated in the case cited supra, I am
unable to accede to the contention of the learned counsel for the
petitioner that the investigation conducted in this case is not
legally sustainable.
8 The learned counsel for the petitioner vehemently submitted
that after receipt of final report, the Government can initiate
departmental proceedings instead of prosecuting the petitioner;
therefore, continuation of criminal proceedings against the
petitioner is not sustainable. To substantiate the argument, the
learned counsel for the petitioner placed reliance on the Memo
No.623/Spl.C/A1/2008-1 dated 15.10.2008. The relevant portion
of the said Memo is extracted hereunder:
2. The Government, after careful examination, have accepted
the recommendations of the Group of Ministers. The following
instructions are issued in respect of certain recommendations
relating to ACB / Vigilance cases:
(i) .
(ii) After receipt of the Final report of the Investigating
Agency, the Department concerned shall examine further within
one month and take a decision as to entrust the case:
1. either for prosecution; or
2. for departmental action; or
3. for placing the accused officer on his
defence before the Tribunal for
Disciplinary Proceedings; or
4. for closure of the case and seek the advice
of A.P. Vigilance Commission.
A perusal of the above Memo, at a glance, demonstrates that after
filing the final report, the Government may resort to any one of the
modes indicated above.
9 It is the further contention of the contention of the learned
counsel for the petitioner that on 12.2.2014 the then Chief
Minister of the Composite State of Andhra Pradesh ordered
departmental enquiry against the petitioner and that fact was
suppressed by the prosecution agency by withholding concerned
file. The learned counsel for the petitioner has drawn attention of
this Court to Page No.67 of the material papers which reads as
follows:
The following file is approved:
Sl.No.
File No. & CMF No.
Subject
Endorsement
1
48523/Vig.III(1)/2009
Disproportionate assets
case registered by ACB
against Sri B.
Chandramohan, former
Spl. Collector, SSP,
Kurnool and now retired
from service to initiate
disciplinary action.
Ordered for
departmental
enquiry on para
278 (A) and (B)
on page 71 n.f.
10 The fact remains that the investigating officer filed charge
sheet in the year 2013. The Special Court has taken cognizance of
the offence in the year 2013 itself. In the reply to the counter filed
on behalf of the respondent, the petitioner pleaded that his
application under the Right to Information Act to issue copies of
the Note File in Rc. No.48523/Vig.III(1)/2009 was rejected and this
Court may call for the Note File. The petitioner filed a petition
seeking permission of the Court to permit him to take additional
grounds and the same was allowed.
In Uma Engineering Company v Chief Technocal Examiner
(CE), Irrigation Wing , it was held at para Nos.15, 16 and 17
(Manupatra) as follows:
15. A plain reading of Section 8 (Freedom of Information Act,
2002) would show that certain types of information inter alia, the
minutes or records of advise including legal advice, opinions or
recommendations made by any officer of a public authority
during the decision making process prior to the executive
decision or policy making is not treated as information shall be
exempted of the disclosure. ("Information" as defined by Clause
(d) of Section 2).
16. Therefore, the information sought by the petitioner, i.e.,
alleged note orders issued by the Hon'ble Minister squarely fall
within Section 8(e) of the Act and therefore, the petitioner cannot
claim or enforce freedom of information under the Act.
17. There is yet another reason to conclude that the petitioner
cannot insist on the supply of note orders to him. In the system
of administration followed in Indian sub continent (which is
credited Lord Macual), before any order is passed, the matter is
generally considered on various levels i.e., from the level of a
Clerk or Assistant, Head Clerk or Superintendent, the Junior
Management Cadre Officer, Middle Management Cadre Officer,
top Bureaucrats, Hon'ble Ministers, Every one contributes to the
decision making process. All the notings made in that file at
different levels cannot be called decisions as such. The
collectivity of opinion and reasons therefore will ultimately
manifest in the form of a decision which is communicated to a
person. A person at whose instance a decision was taken, is no
doubt entitled to receive and to be communicated a copy of the
order containing the decision. Such person, however cannot
claim any right from any of the notings in the file. Therefore,
office notings in departmental files do not create any rights and
such notings cannot be enforced in a Court of Law.
In the absence of production of the original file, it is not fair on the
part of this Court to express any opinion with regard to the validity
or otherwise of the same. While exercising power under Section
482 Cr.P.C. there is no need to call for the records, in view of the
above decision.
11 The learned standing counsel for the respondentACB
submitted that the petitioner has produced a part of the alleged
note file. He further submitted that notings on the file itself will
not create any right in favour of the petitioner. That is only an
internal correspondence of the Government. To substantiate the
same, he has drawn the attention of this Court to the ratio laid
down in Sethi Auto Service Station vs. Delhi Development
Authority wherein the Honble apex Court at para Nos.14 to 17
held as follows:
14. It is trite to state that notings in a departmental file do not
have the sanction of law to be an effective order. A noting by an
officer is an expression of his viewpoint on the subject. It is no
more than an opinion by an officer for internal use and
consideration of the other officials of the department and for the
benefit of the final decision-making authority. Needless to add
that internal notings are not meant for outside exposure. Notings
in the file culminate into an executable order, affecting the rights
of the parties, only when it reaches the final decision-making
authority in the department, gets his approval and the final order
is communicated to the person concerned.
15. In Bachhittar Singh v. State of Punjab {AIR 1963 SC 395},
a Constitution Bench of this Court had the occasion to consider
the effect of an order passed by a Minister on a file, which order
was not communicated to the person concerned. Referring to
Article 166(1) of the Constitution, the Court held that order of the
Minister could not amount to an order by the State Government
unless it was expressed in the name of the Rajpramukh, as
required by the said article and was then communicated to the
party concerned. The Court observed that business of State is a
complicated one and has necessarily to be conducted through the
agency of a large number of officials and authorities. Before an
action is taken by the authority concerned in the name of the
Rajpramukh, which formality is a constitutional necessity,
nothing done would amount to an order creating rights or casting
liabilities to third parties. It is possible, observed the Court, that
after expressing one opinion about a particular matter at a
particular stage a Minister or the Council of Ministers may
express quite a different opinion which may be opposed to the
earlier opinion. In such cases, which of the two opinions can be
regarded as the order of the State Government? It was held that
opinion becomes a decision of the Government only when it is
communicated to the person concerned.
16. To the like effect are the observations of this Court in
Laxminarayan R. Bhattad v. State of Maharashtra {(2003) 5 SCC
413}, wherein it was said that a right created under an order of a
statutory authority must be communicated to the person
concerned so as to confer an enforceable right.
17. In view of the above legal position and in the light of the
factual scenario as highlighted in the order of the learned Single
Judge, we find it difficult to hold that the recommendation of the
Technical Committee of DDA fructified into an order conferring
legal right upon the appellants.
As per the principle enunciated in the cases cited supra, no right
will be conferred on the person unless and until he receives the
official communication of the final order from the Government. It is
not the case of the petitioner that he received the official
communication from the Government with regard to initiation of
departmental enquiry and also closing of criminal prosecution
against him.
12 The learned counsel for the petitioner submitted that the
Government, having taken a decision to initiate departmental
enquiry against the petitioner, ought not to have continued the
criminal proceedings against him. To substantiate the argument,
the learned counsel for the petitioner has drawn the attention of
this Court to the ratio laid down in State of Bihar v. Suprabhat
Steel Ltd. and State of Jharkhand vs. TATA Cummins Ltd
wherein the Honble apex Court held that the notifications meant
for implementing the industrial policy of the State Government
cannot override the incentive policy.
In Lloyd Electric and Engineering Limited vs. State of
Himachal Pradesh the Honble apex Court at para No.13 held as
under:
13. The High Court, with great respect, has gone wrong in
not appreciating the background of the case and the decision of
the Council of Ministers to extend its own Industrial Policy
announced in 2004 and the tax concession beyond 31.03.2009.
Once the Council of Ministers takes a policy decision, the
implementing Department cannot issue a notification contrary to
the policy decision taken by the Government. The High Court also
erred in analyzing and understanding the Notification dated
18.06.2009 as if it introduced the CST concession @ 1 per cent
with effect from the date of issuance of notification.
In Mohd. Aleemuddin vs. State of A.P a learned single Judge
of this Court held that the competent authority or the Government
having refused to grant sanction to prosecute the Government
employee is not legally justified to accord sanction basing on the
same material subsequently.
13 In the above cases, the State Government has taken a policy
decision, but the implementing department issued a notification
contrary to the policy of the Government. Therefore, the Honble
apex Court held that the notification issued by the implementing
department has no legal sanctity. The Memo dated 15.10.2008
cannot be equated with the policy decision of the Government in
the public interest. It is not the case of the petitioner that the ACB
issued the notification contrary to the Memo of the Government
dated 15.10.2008. The facts of the case on hand are different from
the facts of the cases in Suprabhat Steel Ltd., TATA Cummins Ltd.,
Mohd. Aleemuddin and Lloyd Electric and Engineering Limited
supra. Hence, those decisions are no way helpful to the petitioner.
14 Even assuming but not conceding that the Government has
taken a decision to initiate departmental enquiry, whether the
same is having any binding force or not?
15 The learned standing counsel for the ACB submitted that
there is no specific recital in the alleged note file to drop the
criminal proceedings against the petitioner and in such
circumstances, the relief sought by the petitioner cannot be
granted. To substantiate the argument, the learned standing
counsel has drawn the attention of this Court to the ratio laid
down in K.Srinivasulu v. Government of Andhra Pradesh wherein
this Honble Court at para Nos.19 and 20 held as follows:
19. G.O.Ms.No.25 dated 15.01.2009 does not even state that
sanction was being refused. All that the G.O. records is that the
Government had decided to initiate a departmental enquiry
against the 4th respondent. Both the Learned Additional Advocate
General and Sri P. Gangaiah Naidu would submit that, since the
Government had directed that disciplinary proceedings be
initiated against the 4th respondent, it must be inferred that the
Government had rejected the request of the Anti-Corruption
Bureau for grant of sanction.
20. There must be a clear recital in the sanction order that
sanction, for prosecution under the Prevention of Corruption Act,
1988, is being accorded or refused. The memo dated 29.04.2009
merely reiterates the order issued in G.O.Ms.No.25 dated
15.01.2009 and both these proceedings do not explicitly state
that sanction for prosecution of the 4th respondent, under the
Prevention of Corruption Act, 1988, was being refused. It is
evident, therefore, that the impugned order also suffers from non-
application of mind.
16 There is no specific recital in the note file dated 12.02.2014
refusing sanction or dropping criminal proceedings against the
petitioner. The learned standing counsel for ACB further submitted
that the identical question fell for consideration before this Court
in K.Rama Krishna Raju vs. Government of A.P. , wherein this
Court held at para Nos.12 to 14 as follows:
12. Sri N. Ravi Prasad, would place reliance on the memo
No.623/Spl.C/A1/2008-1 dated 15.10.2008 wherein the
Government had accepted the recommendations of a group of
Ministers, and had issued certain instructions in respect of
certain recommendations relating to ACB/Vigilance cases. In
clause (ii) thereof it is noted that, after receipt of the final report
of the investigating agency, the Department concerned should
further examine, within one month, and take a decision whether
to entrust the case either for prosecution or for departmental
action or for placing the accused officer on his defence before the
Tribunal for Disciplinary Proceedings or for closure of the case
and seek the advice of the A.P. Vigilance Commission. According
to the Learned Counsel, the said memo permitted the Department
either to prosecute or to take departmental action or to initiate
disciplinary proceedings against the officer by having an enquiry
conducted by the Tribunal for Disciplinary Proceedings; the
respondents were entitled only to choose one amongst the three
i.e., either to prosecute or to initiate disciplinary action or to take
disciplinary proceedings before the Tribunal for Disciplinary
Proceedings and, as they had earlier chosen to refer the matter to
the Tribunal for Disciplinary Proceedings, they could not now
grant sanction to prosecute the petitioner under the Prevention of
Corruption Act, 1988. This contention is only to be noted to be
rejected.
13. The Memo dated 15.10.2008 is more in the nature of
administrative/executive instructions issued by the Government
under Article 162 of the Constitution of India. The requirement of
according sanction is under Section 19 of the Prevention of
Corruption Act, 1988. Such an exercise of statutory power cannot
be curtailed or negated by executive/administrative instructions.
If the rules are silent on any particular point, the Government
can fill up gaps and supplement the rules and issue instructions
not inconsistent with the rules already framed. (Sant Ram
Sharma v. State of Rajasthan {AIR 1967 SC 1910}; Union of India
vs. K. P. Joseph {(1973) 1 SCC 194}; Dhananjay Malik v State of
Uttaranchal (2008) 4 SCC 171). The Government cannot,
however, supersede statutory rules by administrative
instructions. No executive instructions can be issued, or be read
as, contrary to the statutory provisions in force.
14. Even otherwise, the petitioner cannot seek a mandamus
for enforcement of administrative/executive instructions issued
by the Government. Ordinarily, the High Court would not issue a
writ of mandamus to enforce administrative instructions/
guidelines not having statutory force, and which do not give rise
to any legal right in favour of the petitioner. (J.R. Raghupathy v.
State of A.P {AIR 1988 SC 1681}; Union of India v. S.L. Abbas
{(1993) 4 SCC 357}. I see no reason, therefore, to accept the
petitioners contention that, since the Government had referred
the matter to the Tribunal for Disciplinary Proceedings, it must be
presumed to have refused to accord sanction for prosecution of
the petitioner.
In Akunuri Haranadha Babu Rao vs. State this Court held
as follows:
Again the State Government issued another Memo
No.623/SPL.C/2008-2, dated 15.10.2008. The relevant portion of
the said Memo reads as follows:
After detailed deliberations with the representatives of the
Associations, the concerned Heads of Departments/Departments
on the issues raised by the representatives of the Confederation,
the Group of Ministers have submitted a report containing
recommendations on the issues for consideration of the
Government. The Government, after careful examination, have
accepted the recommendation of the Group of Ministers, that
while evaluating the disproportionate assets, the existing margin
of 10% may be enhanced to 20%. (underlined by me)
From a perusal of the above Memos at a glimpse, it is
manifest that the State Government issued the Memos for the
benefit of the Government employees, who involved in ACB cases.
The Government servant is entitled to the benefit of the said
Memos in respect of disproportionate assets as given below:
20% margin from 13.2.1989 to 27.02.2003
10% margin from 28.2.2003 to 14.10.2008
20% margin from 15.10.2008 onwards.
The learned senior counsel Sri T.Niranjan Reddy
strenuously submitted that the petitioner is entitled to claim the
benefit of the Memo, which was in force as on the date of the
alleged offence. The FIR was registered on 16.03.1999 on which
date the first Memo, dated 13.02.1989 was in existence. The
State Government accorded permission for prosecution of the
petitioner on 26.11.2007. As on the date of according permission
i.e. 26.11.2007 and filing of the charge sheet i.e. 29.02.2008, the
second memo was in existence. If the argument of the learned
counsel for the petitioner is accepted, the Court has to quash the
proceedings extending the benefit, to the petitioner, covered
under Memo dated 13.02.1989. The State Government accorded
permission for prosecution of the petitioner by scrupulously
following the procedure contemplated under Section 19 of the Act
and also keeping in mind the 2nd memo referred supra.
It is a settled principle of law that the State Government
may issue administrative or executive instructions by way of
Memos and G.Os in pursuance of the power conferred on it under
Article 162 of the Constitution of India. It is needless to say that
Memos or G.Os issued by the State Government must be in
consonance with the provisions of the Act. The Government
cannot, however, supersede the statutory provisions by way of
administrative instructions. No instructions can be issued or be
read contrary to the statutory provisions in force. In the instant
case, the criminal proceedings are initiated against the petitioner
under Section 13 (2) r/w 13 (e) of the Act. It is not mentioned in
these Memos that the instructions have been issued by exercising
power under a specific provision of the Act. Utmost the Memos
may be treated as guidelines for ACB officials, without any
statutory force. The Parliament enacted Prevention of Corruption
Act, 1988 by repealing the Act II of 1947. Even assuming without
conceding that the State Government has power to make
necessary Rules under the Act, but under any circumstances
those Rules should not run contrary to the provisions of the Act.
17 There is no material on record to establish that the State
Government has communicated the decision of dropping of the
criminal proceedings against the petitioner to ACB. The facts of
the case on hand are almost identical to the facts of the cases in
K.Srinivasulu, K.Rama Krishna Raju and Akunuri Haranadha
Babu Rao cited supra. Therefore, the point urged by the learned
counsel for the petitioner is no more res integra. Having regard to
the facts and circumstances of the case, I am of the considered
view that the Memo is no way helpful to the petitioner for quashing
the criminal proceedings.
18 The predominant contention of the learned counsel for the
petitioner is that taking of cognizance of offence without sanction
from competent authority is not legally sustainable. The learned
standing counsel for the ACB strenuously submitted that by the
time of taking cognizance, the petitioner retired from service;
therefore, no sanction is required to prosecute the petitioner.
19 The crime was registered against the petitioner on
26.10.2009. The petitioner retired from service on attaining the age
of superannuation on 31.12.2010. Charge sheet was filed on
12.11.2013. Subsequently the Court has taken cognizance of the
offence. The fact remains that by the time of taking cognizance,
the petitioner was not in service. The Court has taken cognizance
of offence nearly three years after the retirement of the petitioner.
20 The crucial question that falls for consideration is whether
sanction is a condition precedent to prosecute a retired employee.
The learned counsel for the petitioner has drawn the attention of
this Court to the ratio laid down in Louis Peter Surin vs. State of
Jharkhand wherein the Honble apex Court at Para No.3
observed as follows:
3. We see from the judgments (Mahendra Lal Dua v. State
of Bihar, (2002) 1 SCC 149 and Ramanand Chaudhary v. State of
Bihar, (2002) 1 SCC 153) cited by Mr. Vikas Singh that they
proceed on facts which are akin to the present one. In both cases
sanction was granted after a delay of thirteen years while the
officials concerned were still in service under the State
Government. We find in the matter before us that the appellant
had superannuated in the year 1997 and the cognizance had
been taken by the Special Judge four years thereafter in a matter
arising out of an F.I.R. registered in April 1984 even though the
request for sanction had been rejected by the State Government
on two occasions. In view of these peculiar facts we are of the
opinion that the initiation of proceedings against the appellant
was not justified.
In the above decision, the apex Court observed that the initiation
of proceedings was not justified as the State Government twice
refused sanction for prosecution of the appellant therein while he
was in service.
21 The learned counsel for the petitioner as well as the learned
standing counsel for the respondentACB have placed reliance on
the ratio laid down in Chittaranjan Das v. State of Orissa wherein
the Honble apex Court at Para Nos.12, 13 and 14 held as follows:
12. Sanction is a device provided by law to safeguard public
servants from vexatious and frivolous prosecution. It is to give
them freedom and liberty to perform their duty without fear or
favour and not succumb to the pressure of unscrupulous
elements. It is a weapon at the hands of the sanctioning authority
to protect the innocent public servants from uncalled-for
prosecution but not intended to shield the guilty.
13. Here in the present case while the appellant was in service
sanction sought for his prosecution was declined by the State
Government. The Vigilance Department did not challenge the
same and allowed the appellant to retire from service. After the
retirement, the Vigilance Department requested the State
Government to reconsider its decision, which was not only
refused but the State Government while doing so clearly observed
that no prima facie case of disproportionate assets against the
appellant is made out. Notwithstanding that the Vigilance
Department chose to file a charge-sheet after the retirement of the
appellant and on that the Special Judge had taken cognizance
and issued process.
14. We are of the opinion that in a case in which sanction
sought for is refused by the competent authority, while the public
servant is in service, he cannot be prosecuted later after
retirement, notwithstanding the fact that no sanction for
prosecution under the Prevention of Corruption Act is necessary
after the retirement of the public servant. Any other view will
render the protection illusory. Situation may be different when
sanction is refused by the competent authority after the
retirement of the public servant as in that case sanction is not at
all necessary and any exercise in this regard would be action in
futility.
22 In the cases cited supra, the Government declined to grant
sanction when the accused was in service. In the instant case, the
Government has not declined to grant sanction for prosecution of
the petitioner at any point of time. Therefore, the facts of the case
on hand are entirely different from the facts of the case cited
supra. Hence the above two decisions will no way improve the
case of the petitioner.
23 The learned counsel for the petitioner also placed reliance on
the ratio laid down in R.Balakrishna Pillai v. State of Kerala .
This decision deals with the scope of Section 197(1) Cr.P.C. but not
Section 19 of the P.C. Act.
24 The learned counsel for the petitioner further placed reliance
on V.Suryanarayana Case cited supra, wherein a learned single
Judge of this Court held that sanction is necessary to prosecute
even a retired government employee basing on G.Sagar Suri vs.
State of U.P. and Prakash Singh Badal vs. State of Punjab .
G.Sagar Suri Case is not arising out of the provisions of the P.C.
Act. As per the principle enunciated by the Honble apex Court in
Prakash Singh Badal case, no sanction is necessary if the public
servant in question had ceased to be a public servant as on the
date of taking of cognizance.
In Ajoy Acharya v. State Bureau of Investigation against
Economic Offences , the Honble apex Court after referring the
decisions in R.S. Naik v A.R.Antulay and Prakash Singh Badal
Case, at para No.14 (Manupatra) held as follows:
14. The judgments referred to in paragraph 13 above, were relied
upon by the Courts below to reject the contention advanced at the
hands of the Appellant, that sanction was essential before the
Appellant could be prosecuted. It would be pertinent to mention,
that extracts from the judgments referred to in paragraph 13
reproduced above, deal with two pointed situations. Firstly,
whether sanction before prosecution is required from each of the
competent authorities entitled to remove an accused from the
offices held by him, in situations wherein the accused holds a
plurality of offices. The second determination was in respect of
the requirement of sanction, in situations where the accused
no longer holds the office, which he is alleged to have
abused/misused, for committing the offence(s) for which he
is being blamed. In answer to the first query, it has
unambiguously been concluded, that if an accused holds a
plurality of offices, each one of which makes him a public servant,
sanction is essential only at the hands of the competent authority
(entitled to remove him from service) of the office which he had
allegedly misused. This leads to the clear inference, that other
public offices held by the accused wherein an accused holds a
plurality of offices, are irrelevant for purposes of obtaining
sanction prior to prosecution. On the second issue it was
concluded, that sanction was essential only if, at the time of
taking cognizance, the accused was still holding the public
office which he had allegedly abused.
(emphasis supplied)
25 At this juncture, the learned standing counsel for ACB has
placed reliance on the following judgments to contend that no
sanction is necessary to prosecute a retired Government employee
under the provisions of the P.C. Act.
M.China Gopala Krishna vs. State of A.P wherein this Court
at para No.14 held as under:
14. The learned counsel for the appellant Sri P. Lakshman
Rao could not lay his hands on any decision of the Supreme
Court distinguishable from the above decision. The evidence
available on record indicates that the appellant retired on 31-07-
1993 and the Court took cognizance of the offence on 01-09-
1993. Since the retirement of the appellant was much prior to the
date of the Court taking cognizance of the offence, there is no
necessity for any sanction to prosecute the officer. I therefore, do
not find any force in the contention of the counsel for the
appellant in this regard. This point is accordingly answered
against the appellant.
State of Punjab vs. Labh Singh wherein the Honble apex
Court at Para No.9 held as under:
9. In the present case the public servants in question had
retired on 13.12.1999 and 30.04.2000. The sanction to prosecute
them was rejected subsequent to their retirement i.e. first on
13.09.2000 and later on 24.09.2003. The public servants having
retired from service there was no occasion to consider grant of
sanction Under Section 19 of the POC Act. The law on the point is
quite clear that sanction to prosecute the public servant for the
offences under the POC Act is not required if the public servant
had already retired on the date of cognizance by the court. In S.A.
Venkataraman v. State 1958 SCR 1040 while construing
Section 6(1) of the Prevention of Corruption Act, 1947 which
provision is in pari materia with Section 19(1) of the POC Act, this
Court held that no sanction was necessary in the case of a person
who had ceased to be the public servant at the time the court was
asked to take cognizance. The view taken in S.A.
Venkataraman (supra) was adopted by this Court in C.R.
Bansi v. State of Maharashtra (1970) 3 SCC 537 and
in Kalicharan Mahapatra v. State of Orissa (1998) 6 SCC 411
and by the Constitution Bench of this Court in K.
Veeraswamy v. Union of India (1977) 3 SCC 440. The High
Court was not therefore justified in setting aside the order passed
by the Special Judge insofar as charge under the POC Act was
concerned.
State of Kerala v. Padmanabhan Nair wherein the Honble
apex Court at para No.6 held as under:
6. The correct legal position, therefore, is that an accused
facing prosecution for offences under the P.C. Act cannot claim
any immunity on the ground of want of sanction, if he ceased to
be a public servant on the date when the court took cognizance of
the said offences. So the High Court was at any rate wrong in
quashing the prosecution proceedings in so far as they related to
offences under the P.C. Act.
Neelam Bhardwaj vs. State of Chhattisgarh wherein the
High Court of Chhattisgarh at Para No.11 held as follows:
11. From the aforesaid enunciation of law, it is quite vivid,
if the accused has ceased to be public servant at the time, when
the Court is called upon to take cognizance of offence alleged to
have been committed by him as public servant. Section 19 of
Prevention of Corruption Act, requiring previous sanction for
prosecution is not attracted.
Kalicharan Mahapatra v. State of Orissa wherein the
Honble apex Court at Para No.14 held as follows:
14. The result of the above discussion is thus: A public
servant who committed an offence mentioned in the Act, while he
was a public servant, can be prosecuted with the sanction
contemplated in Section 19 of the Act if he continues to be a
public servant when the court takes cognizance of the offence.
But if he ceases to be a public servant by that time the court can
take cognizance of offence without any such sanction. In other
words, the public servant who committed the offence while he
was a public servant, is liable to be prosecuted whether he
continues in office or not at the time of trial or during the
pendency of the prosecution.
As per the principle enunciated in the cases in M.China Gopala
Krishna, Labh Singh, Padmanabhan Nair, Neelam Bhardwan and
Kalicharan Mahapatra cited supra, if a Government employee
retired from service, as on the date of taking of cognizance of
offence, no sanction is required as contemplated under Section 19
of the P.C. Act. Therefore, the decision in V.Suryanarayana is no
way helpful to the case of the petitioner.
26 As stated supra, in the instant case, the crime was registered
against the petitioner on 26.10.2009. The petitioner retired from
service on attaining the age of superannuation on 31.12.2010.
Charge sheet was filed on 12.11.2013. Therefore, the petitioner
was not in service as on the date of taking cognizance of offence by
the Court. Having regard to the facts and circumstances of the
case and also the principle enunciated in cases M.China Gopala
Krishna, Labh Singh, Padmanabhan Nair, Neelam Bhardwan and
Kalicharan Mahapatra cited supra, I am unable to accede to the
contention of the learned counsel for the petitioner that criminal
prosecution is not maintainable against the petitioner for want of
sanction.
27 The various points urged by the petitioner are not
sustainable either on facts or in law. The petitioner failed to
establish that continuation of criminal proceedings against him
would amount to abuse of process of law which warrants
interference of this Court by exercising jurisdiction under Section
482 Cr.P.C. The petition lacks merits and bona fides. Hence
Criminal petition is liable to be dismissed.
28 In the result, the Criminal Petition is dismissed.
Consequently, miscellaneous petitions pending in this Criminal
Petition shall stand closed.
__________________________
T. SUNIL CHOWDARY, J.
Date: 30.01.2017
CRIMINAL PETITION No.16208 of 2014
30-01-2017
Buddi Chandra Mohan, S/o.late B.Krishna Murthy Petitioner
The State of Andhra Pradesh, represented by its Standing Counsel for ACB Cases,
High Court, Hyderabad Respondent
Counsel for the petitioner:Sri V. Pattabhi
Counsel for the respondent: Sri Udaya Bhaskara Rao,
Special Standing Counsel for ACB
<GIST:
>HEAD NOTE:
? CASES REFERRED:
1)(2012) 13 SCC 614
2)(2013) 3 SCC 330
3)(2013) 9 SCC 293
4)(2013) 10 SCC 591
5)(2000) 2 SCC 636
6)2014 (2) ALD (Crl.) 617
7)2004 (1) ALD 620
8)(2009) 1 SCC 180
9)(1999) 1 SCC 31
10 (2006) 4 SCC 57
11)(2016) 1 SCC 560
12)2014(1)ALD(Cri)120
13)2010 (3) ALD 452 (DB)
14)2012 (2) ALD 425
15)2016 (1) ALT (Crl.) 350 (A.P)
16)(2010) 12 SCC 497
17)(2011) 7 SCC 167
18)AIR 1996 SC 901
19)2000 (1) ALD (Crl.) 362 (SC) = 2000 (1) SCR 417
20)(2007) 1 SCC 1
21)(2013) 16 SCC 728
22)(1984) 2 SCC 183
23)2004 CriLJ 3892
24)(2014) 16 SCC 807
25)1999 CriLJ 3696
26)2014 LawSuit (Chh) 232 = 2014 CriLJ 4701
27)1998 (2) ALD (Crl.) 359 (SC)
THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY
CRIMINAL PETITION No.16208 OF 2014
ORDER:
This petition is filed under Section 482 Cr.P.C seeking to
quash the proceedings in C.C.No.69 of 2013 on the file of the
Special Court for trial of ACB cases in Rayalaseema Region,
Kurnool.
2 The facts leading to the filing of the present petition are,
briefly, as follows:
The petitioner joined the Government service on 05.12.1978
as Probationary Deputy Tahsildar and got promotions from time to
time. The petitioner worked as Special Grade Deputy Collector,
Srisailam Project with effect from 01.03.2009 to 28.10.2009. The
petitioner retired from service on attaining the age of
superannuation on 31.12.2010. On receiving credible information,
that the petitioner has acquired disproportionate assets, while
functioning as a public servant, the Inspector of Police, ACB
registered a case in Crime No.11/RCA-KUR/2009 dated
21.11.2012, against the petitioner, for the offences punishable
under Sections 13 (2) r/w 13 (1) (e) of Prevention of Corruption Act,
1988 (the P.C.Act). After completion of investigation, the
Investigating Officer laid charge sheet on 12.11.2013 against the
petitioner for the aforesaid offences. The learned Special Judge has
taken cognizance of the offences under Sections 13 (2) r/w 13 (1)
(e) of the P.C.Act and numbered the same as C.C.No.69 of 2013.
As per the allegations made in the charge sheet, the petitioner has
acquired disproportionate assets worth of Rs.1,18,11,883/- to the
known sources of his income.
3 The first and foremost contention of the learned counsel for
the petitioner is that this court can quash the criminal proceedings
at any stage. On the other hand, the learned standing counsel for
the respondent ACB contended that the trial was commenced
and as many as 88 witnesses were examined on behalf of the
prosecution and hence this is not the stage to quash the
proceedings against the petitioner.
4 To substantiate the argument, the learned counsel for the
petitioner has drawn the attention of this Court to the following
decisions.
Satish Mehra vs. State (NCT of Delhi) & Another wherein the
Honble apex Court at Para No.14 held as follows:
14. The power to interdict a proceeding either at the threshold
or at an intermediate stage of the trial is inherent in a High Court
on the broad principle that in case the allegations made in the
FIR or the criminal complaint, as may be, prima facie do not
disclose a triable offence, there can be reason as to why the
accused should be made to suffer the agony of a legal proceeding
that more often than not gets protracted. A prosecution which is
bound to become lame or a sham ought to be interdicted in the
interest of justice as continuance thereof will amount to an abuse
of the process of the law. This is the core basis on which the
power to interfere with a pending criminal proceeding has been
recognised to be inherent in every High Court.
Rajiv Thapar vs. Madan Lal Kapoor wherein the Honble
apex Court at Para No.30 held as follows:
30. Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps to determine
the veracity of a prayer for quashment raised by an accused by
invoking the power vested in the High Court under Section 482
CrPC:
30.1. Step one: whether the material relied upon by the
accused is sound, reasonable, and indubitable i.e. the material is
of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the
accused would rule out the assertions contained in the charges
levelled against the accused i.e. the material is sufficient to reject
and overrule the factual assertions contained in the complaint i.e.
the material is such as would persuade a reasonable person to
dismiss and condemn the factual basis of the accusations as
false?
30.3. Step three: whether the material relied upon by the
accused has not been refuted by the prosecution/complainant;
and/or the material is such that it cannot be justifiably refuted
by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result
in an abuse of process of the court, and would not serve the ends
of justice?
30.5. If the answer to all the steps is in the affirmative, the
judicial conscience of the High Court should persuade it to quash
such criminal proceedings in exercise of power vested in it under
Section 482 CrPC. Such exercise of power, besides doing justice
to the accused, would save precious court time, which would
otherwise be wasted in holding such a trial (as well as
proceedings arising therefrom) specially when it is clear that the
same would not conclude in the conviction of the accused.
As per the principle enunciated in the above cited cases, High
Court, at any stage, can quash the proceedings against the
accused if the material produced by him clearly rules out the
allegations made against him and such allegations would not end
in conviction. The Honble apex Court reiterated and reaffirmed the
principle enunciated in the cases cited supra in Prashant Bharti
vs. State (NCT of Delhi) and Umesh Kumar vs. State of Andhra
Pradesh .
5 On the other hand, the learned standing counsel for the ACB
has drawn the attention of this Court to the ratio laid down in
G.Sagar Suri vs. State of U.P wherein the Honble apex Court at
para No.9 held as follows:
9. In State of Karnataka v. L. Muniswamy {(1977) 2 SCC 699}
this Court said that in the exercise of the wholesome power under
Section 482 of the Code the High Court is entitled to quash a
proceeding if it comes to the conclusion that allowing the
proceeding to continue would be an abuse of the process of the
court or that the ends of justice require that the proceedings are
to be quashed.
As per the principle enunciated in the case cited supra, this Court
can quash the criminal proceedings by exercising inherent
jurisdiction under Section 482 Cr.P.C. to prevent abuse of process
of law and thereby to secure the ends of justice. Having regard to
the facts and circumstances of the case and also the principle
enunciated in the cases cited supra, I am unable to accede to the
contention of the learned standing counsel that the present
petition is liable to be dismissed in limine in view of
commencement of trial.
6 The second contention of the learned counsel for the
petitioner is that Inspector of Police is not entitled to investigate
into the offence punishable under Section 13(e) of the P.C. Act. He
further submitted that the investigating officer who was working as
Sub-Inspector of Police was officiated as Inspector of Police and
hence on that ground also the investigation conducted by the
investigating officer is not legally sustainable. In such
circumstances, forcing the petitioner to face the rigour of criminal
trial is nothing short of abuse of process of law.
7 On the other hand, the learned standing counsel for the ACB
submitted that there is no bar to investigate into the matter by the
Inspector of Police in view of the provisions of the P.C. Act. To
substantiate the argument, the learned counsel for the petitioner
has drawn the attention of this Court to the ratio laid down in
V.Suryanarayana vs. State wherein this Court at Para No.17 held
as follows:
17. The learned Senior Counsel for the petitioner placed
reliance upon Section 17(c) of the P.C.Act which contemplates
that a Deputy Superintendent of Police or a Police Officer of
equivalent rank alone is entitled to investigate any offence
punishable under the P.C.Act in residuary circumstances not
covered by Sections 17(a) and 17(b). Where the case is covered by
Section 17(a), the question of Section 17(c) being applicable does
not arise. Indeed, Section 17 of the P.C.Act is mandatory.
However, where Sri G.Sudhakar is an Inspector of Police of the
Delhi Special Police Establishment, Section 17(a) of the P.C.Act
empowers him to conduct the investigation. I therefore reject the
contention of the learned Senior Counsel for the petitioner that
the investigation is bad being in violation of Section 17 of the
P.C.Act.
As per the principle enunciated in the case cited supra, the
Inspector of Police is competent to investigate into the ACB cases,
in view of Section 17 of the P.C. Act. The question raised in the
case on hand is identical to the issue decided in the case cited
supra. Having regard to the facts and circumstances of the case
and also the principle enunciated in the case cited supra, I am
unable to accede to the contention of the learned counsel for the
petitioner that the investigation conducted in this case is not
legally sustainable.
8 The learned counsel for the petitioner vehemently submitted
that after receipt of final report, the Government can initiate
departmental proceedings instead of prosecuting the petitioner;
therefore, continuation of criminal proceedings against the
petitioner is not sustainable. To substantiate the argument, the
learned counsel for the petitioner placed reliance on the Memo
No.623/Spl.C/A1/2008-1 dated 15.10.2008. The relevant portion
of the said Memo is extracted hereunder:
2. The Government, after careful examination, have accepted
the recommendations of the Group of Ministers. The following
instructions are issued in respect of certain recommendations
relating to ACB / Vigilance cases:
(i) .
(ii) After receipt of the Final report of the Investigating
Agency, the Department concerned shall examine further within
one month and take a decision as to entrust the case:
1. either for prosecution; or
2. for departmental action; or
3. for placing the accused officer on his
defence before the Tribunal for
Disciplinary Proceedings; or
4. for closure of the case and seek the advice
of A.P. Vigilance Commission.
A perusal of the above Memo, at a glance, demonstrates that after
filing the final report, the Government may resort to any one of the
modes indicated above.
9 It is the further contention of the contention of the learned
counsel for the petitioner that on 12.2.2014 the then Chief
Minister of the Composite State of Andhra Pradesh ordered
departmental enquiry against the petitioner and that fact was
suppressed by the prosecution agency by withholding concerned
file. The learned counsel for the petitioner has drawn attention of
this Court to Page No.67 of the material papers which reads as
follows:
The following file is approved:
Sl.No.
File No. & CMF No.
Subject
Endorsement
1
48523/Vig.III(1)/2009
Disproportionate assets
case registered by ACB
against Sri B.
Chandramohan, former
Spl. Collector, SSP,
Kurnool and now retired
from service to initiate
disciplinary action.
Ordered for
departmental
enquiry on para
278 (A) and (B)
on page 71 n.f.
10 The fact remains that the investigating officer filed charge
sheet in the year 2013. The Special Court has taken cognizance of
the offence in the year 2013 itself. In the reply to the counter filed
on behalf of the respondent, the petitioner pleaded that his
application under the Right to Information Act to issue copies of
the Note File in Rc. No.48523/Vig.III(1)/2009 was rejected and this
Court may call for the Note File. The petitioner filed a petition
seeking permission of the Court to permit him to take additional
grounds and the same was allowed.
In Uma Engineering Company v Chief Technocal Examiner
(CE), Irrigation Wing , it was held at para Nos.15, 16 and 17
(Manupatra) as follows:
15. A plain reading of Section 8 (Freedom of Information Act,
2002) would show that certain types of information inter alia, the
minutes or records of advise including legal advice, opinions or
recommendations made by any officer of a public authority
during the decision making process prior to the executive
decision or policy making is not treated as information shall be
exempted of the disclosure. ("Information" as defined by Clause
(d) of Section 2).
16. Therefore, the information sought by the petitioner, i.e.,
alleged note orders issued by the Hon'ble Minister squarely fall
within Section 8(e) of the Act and therefore, the petitioner cannot
claim or enforce freedom of information under the Act.
17. There is yet another reason to conclude that the petitioner
cannot insist on the supply of note orders to him. In the system
of administration followed in Indian sub continent (which is
credited Lord Macual), before any order is passed, the matter is
generally considered on various levels i.e., from the level of a
Clerk or Assistant, Head Clerk or Superintendent, the Junior
Management Cadre Officer, Middle Management Cadre Officer,
top Bureaucrats, Hon'ble Ministers, Every one contributes to the
decision making process. All the notings made in that file at
different levels cannot be called decisions as such. The
collectivity of opinion and reasons therefore will ultimately
manifest in the form of a decision which is communicated to a
person. A person at whose instance a decision was taken, is no
doubt entitled to receive and to be communicated a copy of the
order containing the decision. Such person, however cannot
claim any right from any of the notings in the file. Therefore,
office notings in departmental files do not create any rights and
such notings cannot be enforced in a Court of Law.
In the absence of production of the original file, it is not fair on the
part of this Court to express any opinion with regard to the validity
or otherwise of the same. While exercising power under Section
482 Cr.P.C. there is no need to call for the records, in view of the
above decision.
11 The learned standing counsel for the respondentACB
submitted that the petitioner has produced a part of the alleged
note file. He further submitted that notings on the file itself will
not create any right in favour of the petitioner. That is only an
internal correspondence of the Government. To substantiate the
same, he has drawn the attention of this Court to the ratio laid
down in Sethi Auto Service Station vs. Delhi Development
Authority wherein the Honble apex Court at para Nos.14 to 17
held as follows:
14. It is trite to state that notings in a departmental file do not
have the sanction of law to be an effective order. A noting by an
officer is an expression of his viewpoint on the subject. It is no
more than an opinion by an officer for internal use and
consideration of the other officials of the department and for the
benefit of the final decision-making authority. Needless to add
that internal notings are not meant for outside exposure. Notings
in the file culminate into an executable order, affecting the rights
of the parties, only when it reaches the final decision-making
authority in the department, gets his approval and the final order
is communicated to the person concerned.
15. In Bachhittar Singh v. State of Punjab {AIR 1963 SC 395},
a Constitution Bench of this Court had the occasion to consider
the effect of an order passed by a Minister on a file, which order
was not communicated to the person concerned. Referring to
Article 166(1) of the Constitution, the Court held that order of the
Minister could not amount to an order by the State Government
unless it was expressed in the name of the Rajpramukh, as
required by the said article and was then communicated to the
party concerned. The Court observed that business of State is a
complicated one and has necessarily to be conducted through the
agency of a large number of officials and authorities. Before an
action is taken by the authority concerned in the name of the
Rajpramukh, which formality is a constitutional necessity,
nothing done would amount to an order creating rights or casting
liabilities to third parties. It is possible, observed the Court, that
after expressing one opinion about a particular matter at a
particular stage a Minister or the Council of Ministers may
express quite a different opinion which may be opposed to the
earlier opinion. In such cases, which of the two opinions can be
regarded as the order of the State Government? It was held that
opinion becomes a decision of the Government only when it is
communicated to the person concerned.
16. To the like effect are the observations of this Court in
Laxminarayan R. Bhattad v. State of Maharashtra {(2003) 5 SCC
413}, wherein it was said that a right created under an order of a
statutory authority must be communicated to the person
concerned so as to confer an enforceable right.
17. In view of the above legal position and in the light of the
factual scenario as highlighted in the order of the learned Single
Judge, we find it difficult to hold that the recommendation of the
Technical Committee of DDA fructified into an order conferring
legal right upon the appellants.
As per the principle enunciated in the cases cited supra, no right
will be conferred on the person unless and until he receives the
official communication of the final order from the Government. It is
not the case of the petitioner that he received the official
communication from the Government with regard to initiation of
departmental enquiry and also closing of criminal prosecution
against him.
12 The learned counsel for the petitioner submitted that the
Government, having taken a decision to initiate departmental
enquiry against the petitioner, ought not to have continued the
criminal proceedings against him. To substantiate the argument,
the learned counsel for the petitioner has drawn the attention of
this Court to the ratio laid down in State of Bihar v. Suprabhat
Steel Ltd. and State of Jharkhand vs. TATA Cummins Ltd
wherein the Honble apex Court held that the notifications meant
for implementing the industrial policy of the State Government
cannot override the incentive policy.
In Lloyd Electric and Engineering Limited vs. State of
Himachal Pradesh the Honble apex Court at para No.13 held as
under:
13. The High Court, with great respect, has gone wrong in
not appreciating the background of the case and the decision of
the Council of Ministers to extend its own Industrial Policy
announced in 2004 and the tax concession beyond 31.03.2009.
Once the Council of Ministers takes a policy decision, the
implementing Department cannot issue a notification contrary to
the policy decision taken by the Government. The High Court also
erred in analyzing and understanding the Notification dated
18.06.2009 as if it introduced the CST concession @ 1 per cent
with effect from the date of issuance of notification.
In Mohd. Aleemuddin vs. State of A.P a learned single Judge
of this Court held that the competent authority or the Government
having refused to grant sanction to prosecute the Government
employee is not legally justified to accord sanction basing on the
same material subsequently.
13 In the above cases, the State Government has taken a policy
decision, but the implementing department issued a notification
contrary to the policy of the Government. Therefore, the Honble
apex Court held that the notification issued by the implementing
department has no legal sanctity. The Memo dated 15.10.2008
cannot be equated with the policy decision of the Government in
the public interest. It is not the case of the petitioner that the ACB
issued the notification contrary to the Memo of the Government
dated 15.10.2008. The facts of the case on hand are different from
the facts of the cases in Suprabhat Steel Ltd., TATA Cummins Ltd.,
Mohd. Aleemuddin and Lloyd Electric and Engineering Limited
supra. Hence, those decisions are no way helpful to the petitioner.
14 Even assuming but not conceding that the Government has
taken a decision to initiate departmental enquiry, whether the
same is having any binding force or not?
15 The learned standing counsel for the ACB submitted that
there is no specific recital in the alleged note file to drop the
criminal proceedings against the petitioner and in such
circumstances, the relief sought by the petitioner cannot be
granted. To substantiate the argument, the learned standing
counsel has drawn the attention of this Court to the ratio laid
down in K.Srinivasulu v. Government of Andhra Pradesh wherein
this Honble Court at para Nos.19 and 20 held as follows:
19. G.O.Ms.No.25 dated 15.01.2009 does not even state that
sanction was being refused. All that the G.O. records is that the
Government had decided to initiate a departmental enquiry
against the 4th respondent. Both the Learned Additional Advocate
General and Sri P. Gangaiah Naidu would submit that, since the
Government had directed that disciplinary proceedings be
initiated against the 4th respondent, it must be inferred that the
Government had rejected the request of the Anti-Corruption
Bureau for grant of sanction.
20. There must be a clear recital in the sanction order that
sanction, for prosecution under the Prevention of Corruption Act,
1988, is being accorded or refused. The memo dated 29.04.2009
merely reiterates the order issued in G.O.Ms.No.25 dated
15.01.2009 and both these proceedings do not explicitly state
that sanction for prosecution of the 4th respondent, under the
Prevention of Corruption Act, 1988, was being refused. It is
evident, therefore, that the impugned order also suffers from non-
application of mind.
16 There is no specific recital in the note file dated 12.02.2014
refusing sanction or dropping criminal proceedings against the
petitioner. The learned standing counsel for ACB further submitted
that the identical question fell for consideration before this Court
in K.Rama Krishna Raju vs. Government of A.P. , wherein this
Court held at para Nos.12 to 14 as follows:
12. Sri N. Ravi Prasad, would place reliance on the memo
No.623/Spl.C/A1/2008-1 dated 15.10.2008 wherein the
Government had accepted the recommendations of a group of
Ministers, and had issued certain instructions in respect of
certain recommendations relating to ACB/Vigilance cases. In
clause (ii) thereof it is noted that, after receipt of the final report
of the investigating agency, the Department concerned should
further examine, within one month, and take a decision whether
to entrust the case either for prosecution or for departmental
action or for placing the accused officer on his defence before the
Tribunal for Disciplinary Proceedings or for closure of the case
and seek the advice of the A.P. Vigilance Commission. According
to the Learned Counsel, the said memo permitted the Department
either to prosecute or to take departmental action or to initiate
disciplinary proceedings against the officer by having an enquiry
conducted by the Tribunal for Disciplinary Proceedings; the
respondents were entitled only to choose one amongst the three
i.e., either to prosecute or to initiate disciplinary action or to take
disciplinary proceedings before the Tribunal for Disciplinary
Proceedings and, as they had earlier chosen to refer the matter to
the Tribunal for Disciplinary Proceedings, they could not now
grant sanction to prosecute the petitioner under the Prevention of
Corruption Act, 1988. This contention is only to be noted to be
rejected.
13. The Memo dated 15.10.2008 is more in the nature of
administrative/executive instructions issued by the Government
under Article 162 of the Constitution of India. The requirement of
according sanction is under Section 19 of the Prevention of
Corruption Act, 1988. Such an exercise of statutory power cannot
be curtailed or negated by executive/administrative instructions.
If the rules are silent on any particular point, the Government
can fill up gaps and supplement the rules and issue instructions
not inconsistent with the rules already framed. (Sant Ram
Sharma v. State of Rajasthan {AIR 1967 SC 1910}; Union of India
vs. K. P. Joseph {(1973) 1 SCC 194}; Dhananjay Malik v State of
Uttaranchal (2008) 4 SCC 171). The Government cannot,
however, supersede statutory rules by administrative
instructions. No executive instructions can be issued, or be read
as, contrary to the statutory provisions in force.
14. Even otherwise, the petitioner cannot seek a mandamus
for enforcement of administrative/executive instructions issued
by the Government. Ordinarily, the High Court would not issue a
writ of mandamus to enforce administrative instructions/
guidelines not having statutory force, and which do not give rise
to any legal right in favour of the petitioner. (J.R. Raghupathy v.
State of A.P {AIR 1988 SC 1681}; Union of India v. S.L. Abbas
{(1993) 4 SCC 357}. I see no reason, therefore, to accept the
petitioners contention that, since the Government had referred
the matter to the Tribunal for Disciplinary Proceedings, it must be
presumed to have refused to accord sanction for prosecution of
the petitioner.
In Akunuri Haranadha Babu Rao vs. State this Court held
as follows:
Again the State Government issued another Memo
No.623/SPL.C/2008-2, dated 15.10.2008. The relevant portion of
the said Memo reads as follows:
After detailed deliberations with the representatives of the
Associations, the concerned Heads of Departments/Departments
on the issues raised by the representatives of the Confederation,
the Group of Ministers have submitted a report containing
recommendations on the issues for consideration of the
Government. The Government, after careful examination, have
accepted the recommendation of the Group of Ministers, that
while evaluating the disproportionate assets, the existing margin
of 10% may be enhanced to 20%. (underlined by me)
From a perusal of the above Memos at a glimpse, it is
manifest that the State Government issued the Memos for the
benefit of the Government employees, who involved in ACB cases.
The Government servant is entitled to the benefit of the said
Memos in respect of disproportionate assets as given below:
20% margin from 13.2.1989 to 27.02.2003
10% margin from 28.2.2003 to 14.10.2008
20% margin from 15.10.2008 onwards.
The learned senior counsel Sri T.Niranjan Reddy
strenuously submitted that the petitioner is entitled to claim the
benefit of the Memo, which was in force as on the date of the
alleged offence. The FIR was registered on 16.03.1999 on which
date the first Memo, dated 13.02.1989 was in existence. The
State Government accorded permission for prosecution of the
petitioner on 26.11.2007. As on the date of according permission
i.e. 26.11.2007 and filing of the charge sheet i.e. 29.02.2008, the
second memo was in existence. If the argument of the learned
counsel for the petitioner is accepted, the Court has to quash the
proceedings extending the benefit, to the petitioner, covered
under Memo dated 13.02.1989. The State Government accorded
permission for prosecution of the petitioner by scrupulously
following the procedure contemplated under Section 19 of the Act
and also keeping in mind the 2nd memo referred supra.
It is a settled principle of law that the State Government
may issue administrative or executive instructions by way of
Memos and G.Os in pursuance of the power conferred on it under
Article 162 of the Constitution of India. It is needless to say that
Memos or G.Os issued by the State Government must be in
consonance with the provisions of the Act. The Government
cannot, however, supersede the statutory provisions by way of
administrative instructions. No instructions can be issued or be
read contrary to the statutory provisions in force. In the instant
case, the criminal proceedings are initiated against the petitioner
under Section 13 (2) r/w 13 (e) of the Act. It is not mentioned in
these Memos that the instructions have been issued by exercising
power under a specific provision of the Act. Utmost the Memos
may be treated as guidelines for ACB officials, without any
statutory force. The Parliament enacted Prevention of Corruption
Act, 1988 by repealing the Act II of 1947. Even assuming without
conceding that the State Government has power to make
necessary Rules under the Act, but under any circumstances
those Rules should not run contrary to the provisions of the Act.
17 There is no material on record to establish that the State
Government has communicated the decision of dropping of the
criminal proceedings against the petitioner to ACB. The facts of
the case on hand are almost identical to the facts of the cases in
K.Srinivasulu, K.Rama Krishna Raju and Akunuri Haranadha
Babu Rao cited supra. Therefore, the point urged by the learned
counsel for the petitioner is no more res integra. Having regard to
the facts and circumstances of the case, I am of the considered
view that the Memo is no way helpful to the petitioner for quashing
the criminal proceedings.
18 The predominant contention of the learned counsel for the
petitioner is that taking of cognizance of offence without sanction
from competent authority is not legally sustainable. The learned
standing counsel for the ACB strenuously submitted that by the
time of taking cognizance, the petitioner retired from service;
therefore, no sanction is required to prosecute the petitioner.
19 The crime was registered against the petitioner on
26.10.2009. The petitioner retired from service on attaining the age
of superannuation on 31.12.2010. Charge sheet was filed on
12.11.2013. Subsequently the Court has taken cognizance of the
offence. The fact remains that by the time of taking cognizance,
the petitioner was not in service. The Court has taken cognizance
of offence nearly three years after the retirement of the petitioner.
20 The crucial question that falls for consideration is whether
sanction is a condition precedent to prosecute a retired employee.
The learned counsel for the petitioner has drawn the attention of
this Court to the ratio laid down in Louis Peter Surin vs. State of
Jharkhand wherein the Honble apex Court at Para No.3
observed as follows:
3. We see from the judgments (Mahendra Lal Dua v. State
of Bihar, (2002) 1 SCC 149 and Ramanand Chaudhary v. State of
Bihar, (2002) 1 SCC 153) cited by Mr. Vikas Singh that they
proceed on facts which are akin to the present one. In both cases
sanction was granted after a delay of thirteen years while the
officials concerned were still in service under the State
Government. We find in the matter before us that the appellant
had superannuated in the year 1997 and the cognizance had
been taken by the Special Judge four years thereafter in a matter
arising out of an F.I.R. registered in April 1984 even though the
request for sanction had been rejected by the State Government
on two occasions. In view of these peculiar facts we are of the
opinion that the initiation of proceedings against the appellant
was not justified.
In the above decision, the apex Court observed that the initiation
of proceedings was not justified as the State Government twice
refused sanction for prosecution of the appellant therein while he
was in service.
21 The learned counsel for the petitioner as well as the learned
standing counsel for the respondentACB have placed reliance on
the ratio laid down in Chittaranjan Das v. State of Orissa wherein
the Honble apex Court at Para Nos.12, 13 and 14 held as follows:
12. Sanction is a device provided by law to safeguard public
servants from vexatious and frivolous prosecution. It is to give
them freedom and liberty to perform their duty without fear or
favour and not succumb to the pressure of unscrupulous
elements. It is a weapon at the hands of the sanctioning authority
to protect the innocent public servants from uncalled-for
prosecution but not intended to shield the guilty.
13. Here in the present case while the appellant was in service
sanction sought for his prosecution was declined by the State
Government. The Vigilance Department did not challenge the
same and allowed the appellant to retire from service. After the
retirement, the Vigilance Department requested the State
Government to reconsider its decision, which was not only
refused but the State Government while doing so clearly observed
that no prima facie case of disproportionate assets against the
appellant is made out. Notwithstanding that the Vigilance
Department chose to file a charge-sheet after the retirement of the
appellant and on that the Special Judge had taken cognizance
and issued process.
14. We are of the opinion that in a case in which sanction
sought for is refused by the competent authority, while the public
servant is in service, he cannot be prosecuted later after
retirement, notwithstanding the fact that no sanction for
prosecution under the Prevention of Corruption Act is necessary
after the retirement of the public servant. Any other view will
render the protection illusory. Situation may be different when
sanction is refused by the competent authority after the
retirement of the public servant as in that case sanction is not at
all necessary and any exercise in this regard would be action in
futility.
22 In the cases cited supra, the Government declined to grant
sanction when the accused was in service. In the instant case, the
Government has not declined to grant sanction for prosecution of
the petitioner at any point of time. Therefore, the facts of the case
on hand are entirely different from the facts of the case cited
supra. Hence the above two decisions will no way improve the
case of the petitioner.
23 The learned counsel for the petitioner also placed reliance on
the ratio laid down in R.Balakrishna Pillai v. State of Kerala .
This decision deals with the scope of Section 197(1) Cr.P.C. but not
Section 19 of the P.C. Act.
24 The learned counsel for the petitioner further placed reliance
on V.Suryanarayana Case cited supra, wherein a learned single
Judge of this Court held that sanction is necessary to prosecute
even a retired government employee basing on G.Sagar Suri vs.
State of U.P. and Prakash Singh Badal vs. State of Punjab .
G.Sagar Suri Case is not arising out of the provisions of the P.C.
Act. As per the principle enunciated by the Honble apex Court in
Prakash Singh Badal case, no sanction is necessary if the public
servant in question had ceased to be a public servant as on the
date of taking of cognizance.
In Ajoy Acharya v. State Bureau of Investigation against
Economic Offences , the Honble apex Court after referring the
decisions in R.S. Naik v A.R.Antulay and Prakash Singh Badal
Case, at para No.14 (Manupatra) held as follows:
14. The judgments referred to in paragraph 13 above, were relied
upon by the Courts below to reject the contention advanced at the
hands of the Appellant, that sanction was essential before the
Appellant could be prosecuted. It would be pertinent to mention,
that extracts from the judgments referred to in paragraph 13
reproduced above, deal with two pointed situations. Firstly,
whether sanction before prosecution is required from each of the
competent authorities entitled to remove an accused from the
offices held by him, in situations wherein the accused holds a
plurality of offices. The second determination was in respect of
the requirement of sanction, in situations where the accused
no longer holds the office, which he is alleged to have
abused/misused, for committing the offence(s) for which he
is being blamed. In answer to the first query, it has
unambiguously been concluded, that if an accused holds a
plurality of offices, each one of which makes him a public servant,
sanction is essential only at the hands of the competent authority
(entitled to remove him from service) of the office which he had
allegedly misused. This leads to the clear inference, that other
public offices held by the accused wherein an accused holds a
plurality of offices, are irrelevant for purposes of obtaining
sanction prior to prosecution. On the second issue it was
concluded, that sanction was essential only if, at the time of
taking cognizance, the accused was still holding the public
office which he had allegedly abused.
(emphasis supplied)
25 At this juncture, the learned standing counsel for ACB has
placed reliance on the following judgments to contend that no
sanction is necessary to prosecute a retired Government employee
under the provisions of the P.C. Act.
M.China Gopala Krishna vs. State of A.P wherein this Court
at para No.14 held as under:
14. The learned counsel for the appellant Sri P. Lakshman
Rao could not lay his hands on any decision of the Supreme
Court distinguishable from the above decision. The evidence
available on record indicates that the appellant retired on 31-07-
1993 and the Court took cognizance of the offence on 01-09-
1993. Since the retirement of the appellant was much prior to the
date of the Court taking cognizance of the offence, there is no
necessity for any sanction to prosecute the officer. I therefore, do
not find any force in the contention of the counsel for the
appellant in this regard. This point is accordingly answered
against the appellant.
State of Punjab vs. Labh Singh wherein the Honble apex
Court at Para No.9 held as under:
9. In the present case the public servants in question had
retired on 13.12.1999 and 30.04.2000. The sanction to prosecute
them was rejected subsequent to their retirement i.e. first on
13.09.2000 and later on 24.09.2003. The public servants having
retired from service there was no occasion to consider grant of
sanction Under Section 19 of the POC Act. The law on the point is
quite clear that sanction to prosecute the public servant for the
offences under the POC Act is not required if the public servant
had already retired on the date of cognizance by the court. In S.A.
Venkataraman v. State 1958 SCR 1040 while construing
Section 6(1) of the Prevention of Corruption Act, 1947 which
provision is in pari materia with Section 19(1) of the POC Act, this
Court held that no sanction was necessary in the case of a person
who had ceased to be the public servant at the time the court was
asked to take cognizance. The view taken in S.A.
Venkataraman (supra) was adopted by this Court in C.R.
Bansi v. State of Maharashtra (1970) 3 SCC 537 and
in Kalicharan Mahapatra v. State of Orissa (1998) 6 SCC 411
and by the Constitution Bench of this Court in K.
Veeraswamy v. Union of India (1977) 3 SCC 440. The High
Court was not therefore justified in setting aside the order passed
by the Special Judge insofar as charge under the POC Act was
concerned.
State of Kerala v. Padmanabhan Nair wherein the Honble
apex Court at para No.6 held as under:
6. The correct legal position, therefore, is that an accused
facing prosecution for offences under the P.C. Act cannot claim
any immunity on the ground of want of sanction, if he ceased to
be a public servant on the date when the court took cognizance of
the said offences. So the High Court was at any rate wrong in
quashing the prosecution proceedings in so far as they related to
offences under the P.C. Act.
Neelam Bhardwaj vs. State of Chhattisgarh wherein the
High Court of Chhattisgarh at Para No.11 held as follows:
11. From the aforesaid enunciation of law, it is quite vivid,
if the accused has ceased to be public servant at the time, when
the Court is called upon to take cognizance of offence alleged to
have been committed by him as public servant. Section 19 of
Prevention of Corruption Act, requiring previous sanction for
prosecution is not attracted.
Kalicharan Mahapatra v. State of Orissa wherein the
Honble apex Court at Para No.14 held as follows:
14. The result of the above discussion is thus: A public
servant who committed an offence mentioned in the Act, while he
was a public servant, can be prosecuted with the sanction
contemplated in Section 19 of the Act if he continues to be a
public servant when the court takes cognizance of the offence.
But if he ceases to be a public servant by that time the court can
take cognizance of offence without any such sanction. In other
words, the public servant who committed the offence while he
was a public servant, is liable to be prosecuted whether he
continues in office or not at the time of trial or during the
pendency of the prosecution.
As per the principle enunciated in the cases in M.China Gopala
Krishna, Labh Singh, Padmanabhan Nair, Neelam Bhardwan and
Kalicharan Mahapatra cited supra, if a Government employee
retired from service, as on the date of taking of cognizance of
offence, no sanction is required as contemplated under Section 19
of the P.C. Act. Therefore, the decision in V.Suryanarayana is no
way helpful to the case of the petitioner.
26 As stated supra, in the instant case, the crime was registered
against the petitioner on 26.10.2009. The petitioner retired from
service on attaining the age of superannuation on 31.12.2010.
Charge sheet was filed on 12.11.2013. Therefore, the petitioner
was not in service as on the date of taking cognizance of offence by
the Court. Having regard to the facts and circumstances of the
case and also the principle enunciated in cases M.China Gopala
Krishna, Labh Singh, Padmanabhan Nair, Neelam Bhardwan and
Kalicharan Mahapatra cited supra, I am unable to accede to the
contention of the learned counsel for the petitioner that criminal
prosecution is not maintainable against the petitioner for want of
sanction.
27 The various points urged by the petitioner are not
sustainable either on facts or in law. The petitioner failed to
establish that continuation of criminal proceedings against him
would amount to abuse of process of law which warrants
interference of this Court by exercising jurisdiction under Section
482 Cr.P.C. The petition lacks merits and bona fides. Hence
Criminal petition is liable to be dismissed.
28 In the result, the Criminal Petition is dismissed.
Consequently, miscellaneous petitions pending in this Criminal
Petition shall stand closed.
__________________________
T. SUNIL CHOWDARY, J.
Date: 30.01.2017
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