Saturday, 13 June 2015

Whether govt can withdraw sanction for prosecution granted under prevention of corruption Act?


    A perusal of Section 19 and relevant case law would denote that the
sanctioning authority, on perusal of entire material before it and on due
application of mind, shall come to a conclusion as to whether or not accord
sanction to prosecute concerned public servant. When once that exercise is
completed and concomitant acts are being followed in a court of law and
when there arose no compelling and justifiable reasons, the Government
cannot withdraw the sanction once accorded. In fact, Section 19 has not
saddled the Government with such power, as can be seen from the language  
of the section. Whether the Government can assume such power under other  
enactments was dealt with by a learned single Judge of this High Court in
M.Veeraiah Chowdarys case (1 supra). Learned Judge on perusal of 
Section 21 of Central General Clauses Act and Section 15 of AP General
Clauses Act and also the relevant case law has held thus:
19. From the above, it is evident that Section 21 of the General Clauses Act
(or other analogous provisions in the: State enactments) does not by itself
confer power on the Government to rescind notification and the existence of
such a power has to be cull out from the provisions of the enactment under
which the notifications came to be issued.
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO           

Criminal Revision Case No.2042 of 2006 

Dated;27-08-2014 

G. Audiseshaiah.... Appellant
Vs
The State of A.P,Rep. by the Spl. Public Prosecutor,Through Inspector of
Police, ACB Nellore.. Respondent  

HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO             
Citation;2015 CRLJ(NOC)234HYD

        This Crl. Rev. Case is directed by the petitioner/accused against the
order dated 11.08.2006 in Crl.M.P.No.515 of 2006 in C.C.No.26 of 2005
passed by the learned Special Judge for SPE & ACB cases, Nellore refusing 
to accord consent under Section 321 Cr.P.C to the Public Prosecutor to
withdraw the case against the Accused Officer (AO) who was facing
charges under Sections 7 and 13(2) r/w 13 (1)(d) of Prevention of
Corruption Act, 1988 (for short P.C. Act) on the allegation that he being a
Senior Accountant in the office of District Treasury Office, Nellore, a public
servant, demanded and accepted bribe of Rs.2,000/- from the complainant,
who is an Assistant Executive Engineer, R & B Quality Control, Sub-
Division, Nellore for passing the bill of increment arrears on 11.01.2005 and
successfully trapped by the ACB officers on the complaint given by the
complainant.
2)      The Special Public Prosecutor filed petition before the trial Court
seeking consent to withdraw the case against AO on the ground that the
Government, on the petition moved by the AO, issued G.O.Ms.No.417  
dated 25.11.2005 cancelling its earlier orders issued in G.O.Ms.No.187
Finance (Admin-III) department dated 26.07.2005 according sanction for
prosecution of the AO, observing that ends of justice would be met if the
AO is placed on his defence before the Tribunal for disciplinary proceedings
instead of prosecution and also departmental action.  The Government
wanted to withdraw the prosecution and issued orders in Memo No.1764- 
B/30/A1/Admin-III/2005 dated 29.01.2005 and placed AO on defence  
before the Tribunal for disciplinary proceedings to enquire into the
allegations of corruption.  The Special Public Prosecutor submitted that in
view of the consequent orders issued by the Director General, Anti
Corruption Bureau (ACB), Hyderabad in R.C.No.6/RCT-NNL/2005 dated   
10.04.2006 requesting the Special Public Prosecutor to file petition under
Section 321 Cr.P.C before the trial Court, he filed the petition and sought for
the consent of the trial Court as required under Section 321 Cr.P.C.
3)      The trial Court refused to accord sanction on the following
observations:
a)      That the sanction once accorded under the Act cannot be withdrawn 
or rescinded and Government has no authority to withdraw or cancel the
sanction order already issued to prosecute the accused and that the ultimate
decision to withdraw from prosecution should rest with the Public
Prosecutor only as held in a decision reported in M. Veeraiah Chowdary vs.
The State of Andhra Pradesh .
b)      That the Public Prosecutor being the minister of justice has to apply
his independent mind and exercise his discretion.  He shall act as a limb of
the judicial process but not as an extension of the Executive.  The decision
to withdraw must be of the Public Prosecutor and not of other authorities.
c)      That the Governments decision to place the AO on defence before
the Tribunal for disciplinary proceedings cannot be a ground for
withdrawing the prosecution.
     On the above observations, the trial Court dismissed the petition filed
by the Special Public Prosecutor.
        Hence the Criminal Revision Case moved by the AO.  
4)     Heard arguments of Sri Pradyumna Kumar Reddy, learned counsel for
petitioner/AO and Sri Ghani A Musa, learned Special Standing Counsel for
ACB (Spl.S.C.).
5a)     Impugning the order of the trial Court, learned counsel for revision
petitioner firstly argued that the trial Court ought to have seen that the
Government was not totally withdrawing the prosecution against the AO but
only changing the forum from the trail Court to the Tribunal for disciplinary
proceedings and therefore, the trial Court ought to have considered the issue
objectively and accorded consent for withdrawal of the prosecution.
b)      Secondly, he would argue that the trial Court mistook that the move to
withdraw from prosecution has not emanated from the Special Public
Prosecutor.  He submitted that the Government under G.O.Ms.No.117 dated  
25.11.2005 had only cancelled its earlier orders issued in G.O.Ms.No.187
according sanction for prosecution but the move to withdraw prosecution
was originated from the Special Public Prosecutor on his independent
consideration of the matter.  Therefore, the view of the trial Court that
Special Public Prosecutor has not independently applied his mind and
exercised his discretion was not correct.  He thus prayed to allow the
revision petition.  He cited the decision reported in Bairam Muralidhar vs.
State of Andhra Pradesh  on the duty of Public Prosecutor and role of the
Court in a petition under Section 321 Cr.P.C.
6)      Per contra, vehemently opposing the revision petition, learned Spl.S.C
would argue that the charge against the AO is under Prevention of
Corruption Act and as such the sanction once accorded by the Government  
cannot be re-backed as held in the M. Veeraiah Chowdarys case (1 supra).
Be that it may, the ground shown for withdrawal of prosecution i.e, placing
the AO on defence before the Tribunal for disciplinary proceedings will not
in any way advance the public interest or the administration of criminal
justice which is sine qua non for according consent by trial Court and
therefore, the trial Court was right in rejecting the petition.  He vehemently
argued that initiation of departmental proceedings or the proceedings before
the Tribunal for Disciplinary proceedings cannot serve a good reason to seek
for consent to withdraw the prosecution since criminal prosecution stands
altogether on a different footing.  He thus prayed to dismiss the revision
petition.
7)      In the light of above arguments, the points arise for determination are:
1.      Whether the Government can withdraw the consent once given  
under Section 19 of P.C Act?
2.      Whether the learned Special Public Prosecutor has exercised
his independent application of mind in invoking petition under
Section 321 Cr.P.C.? 
3.      Whether the Governments decision to place AO on his 
defence before the Tribunal for disciplinary proceedings is a
sufficient and good ground to accord consent by the Court?
8a) POINT No.1: As already narrated supra, the AO is facing charges under
Sections 7 and 13 (2) r/w 1(1)(d) of PC Act for soliciting bribe to do an
official favour. The Government have earlier issued sanction order for
prosecution of AO vide G.O.Ms.No.187 Finance (Admn.III) Department  
dated 26.07.2005. The impugned order reads as if on the petition filed by
AO stating that allegation of demand of bribe levelled against him by the
complainant is false as the concerned bill was audited by him on 29.12.2004
and sent to the S.T.O. for scrutiny, the Government seemingly convinced
and issued another G.O.Ms.No.417 dated 25.11.2005 withdrawing the  
earlier G.O.Ms.No.187, according consent and proposed to place the AO on 
his defence before the Tribunal for disciplinary proceedings instead of
facing prosecution before the trial Court and also departmental action.
b)      In this back drop, a pertinent question that would arise is when once
the Government, on perusal of entire material relating to the allegations
touching the corruption of a public servant and on due application of mind
having issued sanction for his prosecution basing on which consequential
acts are followed in a court of law, can withdraw consent not on the ground
that subsequent material came to its notice revealed the innocence of the
accused but on a simple ground since the accused says that he did not
commit the act of corruption and in fact there was no occasion for him to
demand bribe. 
c)      It is well known that for taking cognizance of an offence punishable
under Sections 7, 10, 13 and 15 of PC Act against a public servant the
concerned Court requires previous sanction of competent authority to
prosecute the said public servant. It is a sort of protective mechanism against
the mischievous and motivated complaints against honest and duty bound 
public servants. Section 19 of P.C Act which provides such mechanism 
reads thus:
Section 19 - Previous sanction necessary for prosecution:--

(1) No court shall take cognizance of an offence punishable under sections
7, 10, 11, 13 and 15 alleged to have been committed by a public servant,
except with the previous sanction,

(a) in the case of a person who is employed in connection with the affairs of
the Union and is not removable  from his office save by or with the sanction
of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of
a State and is not removable from  his office save by or with the sanction of
the State Government, of that Government;

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

(2) Where for any reason whatsoever any doubt arises as to whether the
previous sanction as required under sub-section (1)should be given by the
Central Government or the State Government or any other authority, such
sanction shall be given by that  Government or authority which would have
been competent to remove the public servant from his office at the time when
the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974),

(a) no finding, sentence or order passed by a special Judge shall be
reversed or altered by a Court in appeal,  confirmation or revision on the
ground of the absence of, or any error, omission or irregularity in, the
sanction required under sub-section (1), unless in the opinion of that court,
a failure of justice has in fact been  occasioned thereby;

 (b) no court shall stay the proceedings under this Act on the ground of any
error, omission or irregularity in the sanction granted by the authority,
unless it is satisfied that such error, omission or irregularity has resulted in
 a failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground
and no court shall exercise the  powers of revision in relation to any
interlocutory order passed in any inquiry, trial, appeal or other
 proceedings.

(4) In determining under sub-section (3) whether the absence of, or any
error, omission or irregularity in, such sanction has occasioned or resulted
in a failure of justice the court shall have regard to the fact whether the
objection could and should have been raised at any earlier stage in the
proceedings.

Explanation. 
For the purposes of this section,
(a)  error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any
requirement that the prosecution shall be at the  instance of a specified
authority or with the sanction of a specified person or any requirement of a
similar nature.
d)      A perusal of Section 19 and relevant case law would denote that the
sanctioning authority, on perusal of entire material before it and on due
application of mind, shall come to a conclusion as to whether or not accord
sanction to prosecute concerned public servant. When once that exercise is
completed and concomitant acts are being followed in a court of law and
when there arose no compelling and justifiable reasons, the Government
cannot withdraw the sanction once accorded. In fact, Section 19 has not
saddled the Government with such power, as can be seen from the language  
of the section. Whether the Government can assume such power under other  
enactments was dealt with by a learned single Judge of this High Court in
M.Veeraiah Chowdarys case (1 supra). Learned Judge on perusal of 
Section 21 of Central General Clauses Act and Section 15 of AP General
Clauses Act and also the relevant case law has held thus:
19. From the above, it is evident that Section 21 of the General Clauses Act
(or other analogous provisions in the: State enactments) does not by itself
confer power on the Government to rescind notification and the existence of
such a power has to be culled out from the provisions of the enactment under
which the notifications came to be issued.
20. The orders issued by the State Government according permission under 
Section 19(1) of the Act radically differ from the other administrative orders
in many respects. One of the distinguishing features is that with the grant of
permission under Section 19(1), the prosecution against the accused public
servant stands launched and thereafter nothing remains to be done by the
Government, which accorded the sanction. So far as the other administrative
orders are concerned, the subject-matter, the evaluation of pros and cons by
the Government, the subsequent changes in the matter or policy of the
Government, etc., may, require the Government to respond to such situations.
The administrative actions by their very nature are not static. They need to
be taken, monitored from time to time, and changed or rescinded, depending
on the circumstances. Such an exercise will be possible if only the
Government continues to be in control of the situation after initiation of the
action. The same however does not hold good in case of according sanction
for taking cognizance of the matters or putting the adjudicatory process in
motion. Once such sanction is accorded, the respective Courts or Tribunals
will be in seisin of the matter and the same need to be adjudicated in
accordance with the relevant statutes.
        Thus, it was held that the competent authority who issued
sanction proceedings cannot exercise its power either under Section 19
of P.C. Act or under Section 21 of the Central General Clauses Act or
Section 15 of the A.P. General Clauses Act to withdraw the sanction. I
endorse the same view. Therefore, in the instant case the Government
was not justified in withdrawing the sanction.  This point is answered
accordingly.

9 a) POINT No.2: The role of public prosecutor in moving an
application under Section 321 Cr.P.C. is independent and significant.
His job is not that of a postman to just convey Governments intention
to withdraw the case. On the other hand, on a careful appraisal of
material before him, he should come to an independent conclusion that
there exists a strong material to withdraw the case and in doing so his
act should serve the public interest and advance the cause of
administration of criminal justice. The Government or any other
authority in this regard cannot command him but only commend and so  
also cannot demand him but can only denote the need for withdrawal.
However, the decision must gush out from the fountain head of his
independent thinking and backed by a valid and justifiable ground like
the subsequent material which was unearthed showing the absolute 
innocence of the accused or the closure of prosecution will bring
harmony and peace among the members of the society or the like. 
b)      In Bairam Muralidhars case (2 supra) the Honourable Apex
Court delineated the role of public prosecutor thus:
18. the central question is whether the public prosecutor has really
applied his mind to all the relevant materials on record and satisfied
himself that the withdrawal from the prosecution would subserve the
cause of public interest or not.  Be it stated, it is the obligation of the
public prosecutor to state what material he has considered.  It has to
be set out in brief.
c)      In the instant case, as can be seen from the impugned order
unfortunately it does not appear learned special public prosecutor
served the purpose more than a postman. Except voicing the
Governments order that when the AO already audited arrears bill on
29.12.2004 and sent the same to S.T.O. for scrutiny and as such there
was no occasion for him to accept bribe on 11.01.2005 and seeking
consent of the Court on that score, learned Special Public Prosecutor
has not made an objective assessment of material on record.  Even
assuming that AOs version that he audited the bill on 29.12.2004 and
sent to S.T.O. for scrutiny is true, still the possibility of his putting
LW1 in ignorance of this fact and demanding bribe cannot be ruled out.
So, the AOs version may at best serve as a shield of defence but not a
sword to close the prosecution. All these facts have to be decided only
after full fledged trial. Learned Special Public Prosecutor should have
visualized this possibility before embarking upon filing petition
seeking consent of the court. Therefore, I am constrained to hold that
Special public prosecutor has not given an independent and objective
consideration of the matter. This point is answered accordingly.
10 a) POINT No.3: The next aspect for consideration is whether
decision of the Government to direct AO to appear before the Tribunal
for disciplinary proceedings can be a good ground for prosecution to
withdraw the case and the Court to accord consent. The answer is
emphatic no because the ground on which prosecution seeks 
withdrawal of the case will not subserve the avowed object of public
interest and advancement of criminal justice. It may at best serve the
interest of AO but not the society which has a right to demand for
prosecution of an accused who faces corruption charges. We have a 
number of decisions in this regard.
b)      In State v. Mohmood Butt and others  learned Judge in similar
circumstances observed thus: 

18. In my opinion the mere holding of an administrative enquiry
by the Chief Secretary of the U.P. Government; is not a sufficient
ground to subvert the normal course of justice.  Departmental
action in the case of an officer of Government is something within
its exclusive jurisdiction.  Courts of law are not concerned with
the departmental or administrative enquiries and the result of
such enquiries. I, therefore do not consider this a sufficient
ground for according my sanction to the withdrawal application
c)      The above judgment was followed by the Madras High Court in its
judgment in Moulana Basha v. State rep. by the Inspector of Police
wherein it was held thus:
 Where a prosecution before a Criminal Court and a
departmental proceeding can separately exist, to my mind, the
consent to withdraw from the prosecution cannot be granted
merely on that score. The pendency of a departmental enquiry will
not be a sufficient ground for consenting to withdraw the pending
prosecution. I gain support for my view, from P.N.Bakshi, J. of the
Allahabad High Court, in State v. M.Butt.
d)      Thus, there can be no two opinions that taking up departmental
proceedings cannot be held as a ground for giving consent to prosecution to
withdraw the case under Section 321 Cr.P.C.  They both being parallel and
water tight compartments, concerned authority or public prosecutor cannot
implore the Court to give consent for withdrawal of prosecution on the
ground of continuing only departmental proceedings against the errant
officer.  This point is accordingly answered.
11)     In the result, in view of the above discussion, the decision of the trial
Court was impeccable and impregnable and there are no merits in the
Crl.R.C.  Accordingly, Crl.R.C. is dismissed by confirming the order of the
trial Court passed in Crl.M.P.No.515 of 2006 in C.C.No.26 of 2005.
        As a sequel, miscellaneous applications pending, if any, shall stand
closed.
_______________________    
U. DURGA PRASAD RAO, J      
Date: 27.08.2014
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