Baburao Mudbi vs The State of Karnataka

Budihal R.B, J.—This petition is filed under Section 482 of Cr.P.C. requesting to quash FIR/complainant in crime No. 14/2008 on the file of the 2nd respondent vide Annexure-A and also the order passed by the 1st respondent dated 14.3.2014 vide No. DPAR 185 SAS 2008 Vide Annexure-C and to quash the entire proceedings before the Lokayuktha Court CCH No. 24 in the said crime.

The petitioner, in the petition grounds, has urged that the 1st respondent had not considered the documents and the material evidence furnished by the investigating officer before passing the impugned order at Annexure-C. The order impugned is totally a non speaking order and liable to be set aside. The Central Government referred to in the order impugned is not applicable to the facts of the case. It is further urged that the State is acting under Section 19 of the Prevention of Corruption Act (for short ''the Act'') and the said Section does not give power to review the earlier order. The order impugned is not based on any new material or fact made available by the investigating agency. Based on the earlier available material, the 1st respondent had no power to review the order. It is well established principles of law that the power of review cannot be accepted on the same set of facts considered earlier. Unless there is change in the material or new fact is brought, the 1st respondent is not entitled to review or reconsider the earlier decision. It is further averred in the petition grounds that the investigating officer submitted a complaint giving wrong details of salary of the petitioner including income of the parents and making a issue of withdrawal of certain amounts from the account of petitioner, which is a declared income. The investigating officer had unnecessarily taken imaginary cost of the house and a site in RMV Layout, whereas the cost of the site was only Rs. 30.00 lakh. However, the cost was taken as Rs. 98,35,000/- making a difference of Rs. 68,35,000/-. The investigating officer could not have included in the petitioner''s account, the assets of the parents of the petitioner, when they were the independent tax payers. There were various infirmities and the earlier cabinet sub committee took note of and submitted to the cabinet which considered all these aspects along with the reply of the petitioner and came the conclusion that there would be difference of less 10% of income which is permissible as per the judgments of the Hon''ble Supreme Court and refused sanction to prosecute the petitioner. Without considering these aspects, the present Government had taken another decision after review on the same set of facts and granted permission. The report and reply of the petitioner was considered in detail and order was passed refusing to permit prosecution. The petitioner was in service when the previous order at Annexure-B was passed. But, now, after delay of two years after his retirement, the present order is passed. Therefore, there is delay on the part of the 1st respondent and that the petitioner is retired from service after the earlier order refusing to permit prosecution. On this ground also, the impugned order is liable to be set aside.

Since this Court has granted stay of the impugned order, the respondent has filed I.A. No. 2/2014 seeking vacation of the stay order.

Heard the arguments of learned Senior Counsel and counsel on record appearing for petitioner and also the learned Special Public Prosecutor appearing for the respondent 2 on admission and also on application I.A. No. 2/2014 seeking vacation of the stay order.

Learned Senior Counsel appearing for the petitioner during the course of the arguments submitted that under Section 19 of the Act, the Government has no power to review the order at Annexure-B and pass another order as per Annexure-C. There was no fresh material for reviewing the earlier order and for passing the order at Annexure-C. The learned counsel submitted that Section 197 of Cr.P.C. is also similar to provisions of Section 19 of the Act. Because of change of Government, again the very same material alleged to have been considered and the earlier order Annexure-B had been reviewed for passing subsequent order under Annexure-C, which is totally impermissible in law. The learned Counsel submitted that when the offence was said to have been committed, the petitioner was in service. The respondents kept quiet for a period of two years, after his retirement from service, now they are making an attempt to proceed against him which is against the provisions of law. Hence, he submitted that the petition be allowed and order under revision be set aside and till the passing of the final order, the interim order of stay granted may be continued by rejecting the application I.A. No. 2/2014. In support of his arguments, the learned Counsel has relied upon the following decisions filed along with memo dated 14.11.2014:

"1. State of Himachal Pradesh Vs. Nishant Sareen,

M. Meenakshi and Others Vs. Metadin Agarwal (D) by LRs. and Others, "

Contrary to this, learned Special Public Prosecutor for respondent No. 2, during the course of the arguments, submitted that the earlier order has not been reviewed. It is only the clarification which is issued against the State Government. As on the date the FIR was registered for the alleged offences, the petitioner was an IAS officer and hence, Central Government was the competent authority and the State Government was not having any jurisdiction to pass the order at Annexure-B with regard to prosecution of the petitioner. The order at Annexure-B is without jurisdiction and non-est in law. It need not be challenged by the respondents and get set aside. He submitted that as the petitioner is now retired from service, no sanction for prosecution is necessary. If there is a prima facie material against the petitioner as per the investigation report, he has got stay order at the hands of this Court. Hence, he submitted that main petition as well as the application under which interim stay was granted may be dismissed. In support of his contention, the Special Public Prosecutor for respondent No. 2 has relied upon the following decisions filed along with memos dated 17.10.2014 and 14.11.2014:

"1. Sri. Sirajin Basha Vs. Sri. B.S. Yediyurappa

Abhay Singh Chautala Vs. C.B.I.,

C.B.I. Vs. Ashok Kumar Aggarwal,

State of Maharashtra Vs. Pravin Jethalal Kamdar (Dead) by Lrs.,

Dr. Jagmittar Sain Bhagat Vs. Dir. Health Services, Haryana and Others,

State of Himachal Pradesh Vs. Nishant Sareen,

Superintendent of Police (C.B.I) Vs. Deepak Chowdhary and others, "

I have perused the petition averments so also the application I.A. No. 2/2014 and the documents produced by the respective parties and the decisions relied upon by learned Counsel on both sides.

The petitioner, who is said to be an accused person under the Prevention of Corruption Act Case, filed a petition for quashing FIR/Complaint in crime No. 14/2008 on the file of the 2nd respondent, as per Annexure-A to the petition. According to the contention of the petitioner, when the prosecution sought sanction for his prosecution, the concerned authorities of Government of Karnataka, after perusing the investigation materials, passed an order at Annexure-B dated 31.5.2012. In Annexure-B, it is clearly mentioned that the State Government was not satisfied about the existence of the prima facie case. It is further stated that the State Government had also taken into account unblemished career of the officer in the Government of Karnataka spanning over 35 years. Taking into consideration all the above factors, in totality, the State Government rejected the application of the investigating officer Lokayuktha to permit them to prosecute Dr. Baburao Mudbi, the petitioner herein. The contention of the petitioner is that once decision is taken by the competent authority in rejecting request for issue of the sanction holding that there is no prima facie case, the said order cannot be reviewed by issuing subsequent proceedings as per Annexure-C. Annexure-C is the proceeding of the Government of Karnataka dated 14.3.2014, wherein it is stated that State Government examined the proposal and the recommendation contained in the final investigation report of the Lokayuktha and in letter dated 31.5.2012 referred at (2 above) the application of the investigating officer of Karnataka Lokayuktha Police wing for sanction of prosecution in respect of Dr. Baburao Mudbi, IAS was rejected for the reasons indicated in the said letter. It is also mentioned in Annexure-C that in the subsequent development, on a clarification sought by the State Government, the Government of India, Department of Personnel and Training, in its letter dated 5.4.2013 have clarified that in respect of recommendation of prosecution, sanction pertaining to IAS officers under the Prevention of Corruption Act (for offences punishable under sections 7, 10, 11, 13 and 15), Department of Personnel and Training being the Cadre Controlling Authority, is competent to grant sanction or otherwise. In pursuance to this, State Government has examined the case of the petitioner keeping in view the clarification furnished by the Government of India, Department of Personnel and Training and also the fact that the officer has already retired from service on attaining the age of superannuation, in consultation with the Department of Law, Justice and Human Rights. Further paragraph in the said letter is that as per the guidelines contained the letter dated 27.9.1999 of the Government of India, Department of Personnel and training, it is not necessary to submit proposal to Government of India for obtaining sanction against retired IAS officers, since the competent authority under the Central Government is not required to accord sanction under section 9(1) of the Act as the officer has ceased to be the public servant in terms of the Supreme Court Judgment in R.S. Nayak (Appellant) v. A.R. Antulay (respondent) (AIR 1989 SC 684). It is also mentioned that in view of the above, State Government withdraws its letter dated 31.5.2012 refusing sanction of prosecution in respect of Dr. Baburao Mudi, IAS (Retd.) and the Lokayuktha police wing is requested to proceed further as per law in terms of the guidelines of the Government of India, Department of Personnel and Training, contained in the letter dated 27.10.1999.

Therefore, the question is whether Annexure-C issued by the Government of Karnataka is amounting to reviewing its earlier order issued as per Annexure-B.

I have perused the decision relied on by learned Counsel for the petitioner rendered by the Hon''ble Supreme Court in Crl. Appeal No. 2353/2010 (arising out of SLP (Crl.) No. 2239/2010) decided on 9.12.2010. In the said decision, earlier sanction order was issued by the Principal Secretary (Health), Government of Himachala Pradesh, who was the competent authority authorized under the Rules of Business for according sanction in the matter. At the first instance, when the materials were placed before the Principal Secretary (Health) for examination of the case, it was found no justification in granting sanction to prosecute the respondent therein and accordingly, sanction was refused. The Vigilance Department took up the matter from the Principal Secretary (Health) for grant of sanction, as in their opinion, sufficient evidence existed to prosecute the respondent. The competent authority reconsidered the matter and granted sanction to prosecute the respondent vide its order dated 15.3.2008. The other facts in the said decision go to show that as there was no change in the investigation material and on the basis of the said materials, the competent authority issued sanction order and hence, their Lordships of the Hon''ble Supreme Court laid down the proposition that the Government cannot review its earlier order, when there is no change in the investigation material.

But before coming to the issue of sanction order, in the case on hand, let me refer to Section 19(2) of the Act:

"Section 19 Previous sanction necessary for prosecution :

(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 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."

The above provision clearly shows that sanction shall be given by the Government or the 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. In this case, when the offence alleged to have been committed on 29.1.2008, i.e., date of registration of the FIR, the petitioner herein was the IAS officer. Therefore, the competent authority to remove him from service is the Government of India, Department of Personnel and Training. When that is so, the Government of Karnataka was not the competent authority as on the said date and was not supposed to consider case of the petitioner for issue of sanction and the proceedings under Annexure-B dated 31.5.2012 is without jurisdiction.

In the reported decision relied upon by the learned Counsel for the petitioner, the authority, which rejected the sanction, at the first instance and issued sanction subsequently, on the request of Lokayuktha, was the competent authority. But here it is not so. When the Government of Karnataka was not the competent authority to consider the case for issue of sanction order, no importance can be attached to Annexure-B and it cannot be said that issue of the further proceedings as per Annexure-C is amounting to review of its earlier order by the Government.

It is contended by the learned Counsel for the petitioner that the earlier order issued by Government of Karnataka under Annexure-B was not at all challenged by the prosecution. In this connection, learned Counsel for the respondent Lokayuktha relied upon decision of the Hon''ble Supreme Court dated 7.3.2000 in State of Maharashtra v. Praveen Jethala Kamdar (Dead) by L.Rs. and another decision Dr. Jagmittar Sain Bhagat Vs. Dir. Health Services, Haryana and Others, (Synopsis B). The Hon''ble Supreme Court in the said two decisions has held that when any order or the proceeding is made by the authority having no jurisdiction, the same can be ignored as nullity i.e. non existent in the eye of law and is not necessary to set it aside. Therefore, the contention of the learned Counsel for the petitioner that the prosecution has not challenged Annexure-B to get it set aside, will not come to the aid and assistance of the petitioners'' contention.

Looking to the entire materials on record, I am of the opinion that there is no merit in the criminal petition and accordingly, it is rejected. Consequently, interim order of stay of further proceedings granted by this Court on 13.5.2014 stands vacated.