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Mallikarjun Basalingappa v. The State Of Karnataka
Summary of Opinion — Huluvadi G. Ramesh, J.
Factual and Procedural Background
The petitioner challenged an order of the Special (Principal Sessions) Judge, Belgaum in Spl. Case No. 15/1998 dated 31.8.2004, which dismissed the petitioner's application under Section 239 of the Code of Criminal Procedure seeking discharge on the ground of an invalid sanction. The underlying criminal proceedings arise from a complaint by Anthony Fernandes, a businessman in Belgaum, who secured a tender to supply desks under the D.P.E.P. scheme. He supplied desks in stages and received payment for part of the supply. The complaint alleges that the petitioner, an Accounts Officer in the relevant office, demanded a bribe (alleged Rs. 50,000) to secure payment for the remaining bill. The Lokayuktha police laid a trap which succeeded; an investigation followed and a charge sheet was filed. The accused was charge-sheeted under sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. The accused applied under Section 239 Cr.P.C. for discharge on the ground that the sanction for prosecution was invalid. The Sessions Judge dismissed that application; the present petition seeks to set aside that dismissal. The court heard submissions from the petitioner's counsel and the State Public Prosecutor / Government Pleader on the point of validity of the sanction.
Legal Issues Presented
- Whether the sanction to prosecute the accused is invalid because it was issued by an Under Secretary who, it is contended, lacked competence to accord sanction under the Prevention of Corruption Act.
- Whether the accused is entitled to discharge at the Section 239 Cr.P.C. stage on the ground that the sanction order is legally defective or was not properly accorded by the competent authority.
Arguments of the Parties
Petitioner's Arguments
- The Under Secretary is not a competent authority to accord sanction; issuance by the Under Secretary violates provisions of the Prevention of Corruption Act.
- The sanction in question was issued by the Under Secretary to the Government of Karnataka, Finance Department, who allegedly is not vested with power to accord sanction to prosecute the accused; therefore the sanction is bad in law and the accused should be discharged.
- Reference was made to rulings previously relied upon before the Sessions Court (specific rulings are not reproduced in this opinion).
State's Arguments (Learned S.P.P.)
- The Government, after perusal of the materials placed before it, has accorded sanction; under the rules of business the Under Secretary is competent to issue the sanction order where the Government has already accorded sanction.
- There is no illegality in the sanction order issued by the Under Secretary.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court examined the sanction order and the accompanying Government proceedings. The sanction order bears the signature of the Under Secretary and is expressed as issued "by order and in the name of Governor of Karnataka." The Government proceedings indicate that the matter (including prosecution papers, FIR and FSL report) was placed before the Government, and that the Government is shown to have looked into the material and accorded sanction.
The court acknowledged a doubt raised by the petitioner's counsel about which authority actually perused the papers and accorded sanction (i.e., whether the Governor, the Government, or another appointing authority). The court observed that the Under Secretary's proceedings refer to a government order of the Finance Department and other government orders, and state that the issuance is in the name of the Governor after the concerned authority perused the materials and formed an opinion to prosecute.
The court held that mere non-production of the Government proceedings by the Under Secretary at this stage does not vitiate the sanction. There is specific reference in the Government proceedings signed by the Under Secretary; if necessary, the accused may insist on production of the said Government orders during trial. If, at trial, it is established that the Government or appointing authority did not apply its mind in accordance with law when according sanction, that issue can be decided then. The court noted that while the Under Secretary is of the same cadre as the accused and is not himself the sanctioning authority, he acted as the issuing authority for an order made by the Government, conforming to formalities under the rules of transaction of business and government rules.
On this basis the court agreed with the Sessions Judge that the question of validity of sanction and whether the appropriate authority applied its mind is a matter for evidence and determination at trial rather than a ground for discharge under Section 239 at this stage.
Holding and Implications
DISMISSED: The petition seeking to set aside the Sessions Court order dismissing the accused's Section 239 Cr.P.C. application was dismissed. The court found no merit in the contention that the sanction was invalid on the materials before it at this stage.
Implications:
- The accused is not discharged at the pre-trial stage on the ground asserted; the criminal proceedings will continue.
- The accused remains entitled, during trial, to seek production of the Government proceedings and to challenge whether the Government or appointing authority applied its mind in accordance with Section 19 of the Prevention of Corruption Act; if it is shown at trial that proper sanction was not accorded, that question can be decided then.
- The opinion confines itself to the present procedural determination and does not purport to lay down any new legal precedent beyond resolving the petition; no broader legal rule was announced.
Huluvadi G. Ramesh, J.:—
The petitioner has sought for setting aside the order passed by the Spl. (prl. Sessions) Judge, Belgaum in Spl. Case No. 15/1998 dated 31.8.2004 in dismissing the application filed by the petitioner under Section 239 of Cr. P.C seeking for the discharge on the ground of invalid sanction.
2. Heard the learned Council for the petitioner and the learned State Public Prosecutor and Government Pleader on the point.
3. The facts which are necessary for disposal of the case is that the complainant-Anthony Fernandes is a businessman and is a resident of camp in Belgaum town. He has filed the complaint against this petitioner stating about 5-6 months prior to filing of the complaint, he had secured a tender for supplying desks worth Rs. 30 lakhs under D.P.E.P scheme from the Deputy Director of Public Instruction, Belgaum. He has supplied desks worth Rs. 15 lakhs and he received the payment. Subsequently, he supplied desks worth Rs. 10-12 lakhs and submitted a bill for payment and he also supplied remaining desks worth Rs. 3,50,000/-. He supplied these desks through his firm name ‘Johnson Handicraft’. It is alleged that this petitioner-accused who is a Accounts Officer working in the said office, was insisting the complainant for payment of bribe amount and with great difficulty he got it cleared for 15 lakhs and for the remaining amount when the bill was submitted, the accused demanded bribe of Rs. 50,000/-. Thereafter, the complaint was filed before the Lokayuktha police. The Lokayuktha police laid a trap and the trap was successful. Thereafter, after completion of the investigation, the charge sheet was filed.
4. For showing official favour for the remaining bill, this petitioner is said to have demanded the amount of Rs. 50,000/- as bribe. Thereafter, the accused was charge sheeted for the offences under section 7, 13(1)(d) r/w 13(2) of P.C Act, 1988. Thereafter, he filed the application under Section 239 Cr. P.C seeking for the discharge on the ground of invalid sanction.
5. It is the submission of the learned Counsel for the petitioner herein that the Under Secretary is not a competent person to accord sanction and there is clear violation of provisions of Prevention of Corruption Act and as such, the accused is entitled for discharge. Accordingly, in support of his argument, he also invited the attention of this Court to the rulings referred before the Sessions Court and he also tried to contend that the sanction in question has been issued by the under Secretary to the Government of Karnataka, Finance Department and he has not been vested with powers to accord sanction to prosecute him and therefore, the sanction is bad in law and submitted that the impugned order is liable to be set aside and the accused be exonerated.
6. The learned S.P.P submitted that by virtue of the order of the Government, after perusal of the materials placed before the Government, the Government has accorded sanction. Under the rules of business transaction, he is competent to issue the sanction order wherein the Government has already accorded sanction and submitted that there is no illegality in the order of sanction issued by the Under Secretary.
7. It is seen that as per the sanction order, the Under Secretary to Government, Finance Department has issued the sanction order and in the order, above his signature, it is mentioned as ‘by order and in the name of Governor of Karnataka’. In the preceding paragraph, it is mentioned that the matter was placed before the Government and it appears that the entire file including the prosecution papers, FIR and FSL report, were placed before the Government and the Government is shown to have looked into the same and accorded sanction and it is the doubt expressed by the learned Counsel for the petitioner that which authority has perused the papers and accorded the sanction. The same is not clear i.e, whether the Governor or the Government or any other appointing authority etc.
8. In the proceedings of the Government of Karnataka, the Under Secretary has referred to the government order of the Finance Department and also referred to various other orders of the Government. It is stated in the said proceedings that issuance of the order by the Under Secretary is in the name of Governor and by order and all the materials are said to have been placed before the concerned authority and who after perusal of the same is said to have formed an opinion that the accused should be prosecuted. Mere non-production of Governmental proceedings by the Under Secretary, may not vitiate the issuance of the sanction order. There is specific reference in the Government proceedings signed by the Under Secretary and if necessary to clarify the position, the accused may insist for production of the same during trail and ultimately if it is found that the Government/appointing authority has not applied its mind in according sanction in accordance with law, that would be the subject matter to hold either way as to whether the sanction is in accordance with law or not. The role of the Under Secretary although is in the equal cadre as that of the accused herein, the Under Secretary is not a sanctioning authority, rather he acted as issuing authority of the sanction order as it is ordered by the Government and also these are all the formalities as provided under the transaction of business rules and the rules of the Government. Accordingly, the sanction order has been issued by the under Secretary to the Government, Finance Department. As rightly observed by the learned Sessions Judge, it is a matter for evidence and during trial, if necessary for the satisfaction of the accused, the accused may insist for production of such Government orders to know whether the sanction order is in accordance with law or not. In view of the same, I do not find any merits in the contention of the learned Counsel for the petitioner. The petition is devoid of merits and it is dismissed accordingly. However, it is open for the petitioner to seek production of such Government order at the time of trial to know whether the Government/appointing authority has passed the order in accordance with law as per Section 19 of Prevention of Corruption Act.
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