M. Siddalingayya vs State

Anand Byrareddy, J.—Heard the learned Counsel for the appellant and the learned Special Public Prosecutor. The present appeal is filed by the accused in Special Case No. 1 of 2000 on the file of the Court of the Sessions Judge, Koppal. It was alleged against the appellant that on reliable information received with regard to amassing of wealth disproportionate to the known sources of income of the appellant, the Police Inspector, Lokayukta Police, Raichur, registered a case against the accused who was working as a Junior Engineer in T.R. Sub-Division, Vaddarahatti Camp in PWD Gangavathi and a raid was conducted in the residential quarters of the accused after obtaining a search warrant on 8-7-1987 and seized certain articles, the description of which are mentioned in the search panchanama, in the presence of three panch witnesses. Several movables and other valuables were seized. The accused was a Government servant who was appointed as an Overseer on 12-8-1957 and he was a Junior Engineer as on the date of the raid. He has two sons and one daughter, all of whom studied in a Government Primary School and thereafter they had attended College at Hospet. One of his sons is a B.Sc. graduate and his youngest son is a B.E. graduate who passed out of Bapuji Institute of Engineering and Technology, Davanagere. The appellant was a native of a Village in Shikaripura Taluk of Shimoga District. He belongs to the Jangam Lingayath community. His father had died in the year 1970-1971. He had not inherited any property from his father. The accused was working as an Assistant Engineer at the time of retirement in February 1993.

After detailed investigation, it was found that the appellant was if illegal possession of pecuniary sources and properties worth Rs. 7,11,839.65/-, which was about Rs. 2,02,616/- in excess of the income earned as per the calculation at Exhibit P. 63. Exhibit P. 3 is the valuation report of the building owned by the accused at Davanagere and Hagribommanahalli. Exhibit P. 4 is the break up details of savings and other sources given as declaration by the accused while obtaining loan and there are other material documents as regards the sanction of house building advances and details of his pay and the assets and liability information furnished by the appellant during the relevant period. There is also a statement showing the domestic expenditure of the accused from 12-8-1957 to 30-6-1989 which has been calculated as per Exhibit P. 9. It was on this basis that the appellant was charge-sheeted. The plea of the accused was recorded for an offence punishable u/s 5(1)(e) of the Prevention of Corruption Act, 1947 (hereinafter referred to as ''the 1947 Act'', for brevity) punishable u/s 5(2) of the said Act. The appellant pleaded not guilty and claimed to be tried. According to him, he had satisfactorily accounted for all the properties not only in his own name, but also in the name of his wife. His statement u/s 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to ''Cr.P.C.'' for brevity) was recorded and thereafter the prosecution tendered its evidence through PWs. 1 to 32 and marked Exhibits P. 1 to P. 64 and material objects M.Os. 1 to 39. The appellant also tendered evidence and examined 12 witnesses and marked several documents namely Exhibits D. 1 to D. 50. The Court below framed the point for its consideration namely, "Whether the accused had committed criminal misconduct in discharge of his official duty as sought to be made out by the prosecution", and proceeded to consider the material on record and ultimately convicted the accused u/s 235(2) of the Cr.P.C. for an offence punishable u/s 5(1)(e) of the 1947 Act and insofar as the punishment is concerned, the Trial Court held that the appellant was sentenced to rigorous imprisonment for three months and to pay a fine of Rs. 15,000/- and ordered confiscation of the articles, name M.Os. 3 to 30, to the State. The remaining articles were ordered to be returned to the accused. It is that which is under challenge in the present appeal.

Though several grounds are raised in the appeal, the learned Counsel for the appellant has pointed out that the prosecution of the appellant was under the Prevention of Corruption Act, 1947. Section 6 of the said Act, reads as follows:

(1) No Court shall take cognizance of an offence punishable u/s 161 or Section 165 of the Indian Penal Code or under sub-section (2) of Section 5 of this Act, 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;

(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;

(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 whether the previous sanction as required under sub-section (1) should be given by the Central or 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.

He would further point out that the sanction order in the present case on hand, is at Exhibit P. 29 and from a perusal of the same, it is clear that the sanction order is issued in name of the Government of Karnataka and signed by an under Secretary to the Department of Public Works and CAD and he would point out that Article 166 of the Constitution of India lays down that, all executive action of the Government of a State shall be expressed to be taken in the name of the Governor and therefore, in the face of it, the sanction order being an executive action of a Government of a State, cannot be expressed to be taken in the name of the Governor through the medium of an under Secretary, and there is no indication that the under Secretary was the Competent Authority who could grant sanction insofar as the prosecution of the accused is concerned. He would also point out that this is endorsed by the very author of the sanction order, who is examined as P.W. 24, and would take this Court through the cross-examination of the said witness, whereby, he has categorically admitted that he was not competent and was not authorised by the Governor to issue the sanction order in the name of the Government and further, he was not the authority who could appoint the appellant nor the authority who could remove him from service.

Therefore, the learned Counsel for the appellant would submit that this circumstance is sufficient to allow the appeal and set aside the judgment, notwithstanding the material that has been placed on record, which again could not stand the test of scrutiny. But however, he would submit that if the appeal is to be allowed on this ground alone, it would not be necessary to address the other infirmities that are apparent in the case of the prosecution and the findings of the Court below. He would place reliance on a decision of the Apex Court in the case of State Inspector of Police Vs. Surya Sankaram Karri, , to submit that when there was no valid sanction order, the prosecution is vitiated and therefore, the appellant could not have been prosecuted.

On the other hand, the learned Special Public Prosecutor Sri M.B. Gundawade appearing for the respondent would submit that on merits, the appellant has no case whatsoever, as the several valuables seized from the possession of the appellant are not disputed. On the other hand, it is claimed that the silver, gold and other immovable property which is not denied, is sought to be explained on the footing that it has been acquired over time and it is the property of his spouse and also certain articles which were sent by his daughter who lives in Bombay, for safe keeping and insofar as the properties are concerned, they are all constructed after obtaining loans which are sanctioned by his employer and there is no irregularity in the same. However, based on the valuation and the assets statement declared by the appellant and even on a liberal valuation of the properties, it is noticed that the appellant is not in a position to explain the difference in the value of the assets and therefore, a clear case of acquisition of properties beyond the known sources of income, is made out. Even if the properties belonged to his wife or other parties, it was necessary for the appellant from time to time to have filed his assets and liability statement explaining such possession, in the absence of which it is not open for the appellant to claim that the same does not belong to him or that they have been legitimately obtained by his wife. It is deemed to be the property of the appellant and therefore, would submit that on merits, there is absolutely no case made out by the appellant in the case on hand. Insofar as the prosecution being vitiated on account of there being an invalid order of sanction, is also not relevant, as there are a catena of decisions which have laid down that want of sanction or the absence of sanction shall not vitiate the prosecution, unless there is a failure of justice and in any event, such sanction order is not denied. But, it is only the validity of the same which is sought to be questioned. The same having been issued by the under Secretary in the name of the Government of Karnataka, cannot be held to be bad in law, as the author of the document is an authorised officer of the State Government and is deemed that he is so authorised to represent the Government of Karnataka. It is also sought to be made out that any such invalidity ought of have been urged before the Trial Court and there being no case made out of any failure of justice on account of such invalidity of sanction, the same cannot be canvassed at this stage in appeal, and would seek to rely on a decision of this Court in the case of Puttaraje Urs Vs. State, , to contend that the invalidity or the absence of sanction would not invalidate the proceedings unless it results in failure of justice and in the absence of any such demonstration of failure of justice in the present case on hand, it cannot be said that the conviction ought to be set aside on that account.

It is further contended that Section 30 of the Prevention of Corruption Act, 1988 (hereinafter referred to as ''the 1988 Act'', for brevity) provides for repeal of the 1947 Act and by virtue of Section of the General Clauses Act, 1897, the rigour of Section 19 shall be read into the 1947 Act. Therefore, the validity or otherwise of the sanction is immaterial, unless failure of justice has occasioned, which it is for the appellant to demonstrate and the bald assertion that the Sanctioning Authority was not competent to issue the order of sanction, by itself would not demonstrate a failure of justice and hence, would seek that the matter be addressed on merits and not merely on the ground of whether or not there was a valid sanction order.

The learned Special Public Prosecutor would also contend that there are decisions which have taken the view that even if there is no valid sanction, the entire proceedings are not to be vitiated and since no cognizance could be taken unless there is a valid sanction, the proceedings should revert back to the stage of taking cognizance after securing valid sanction over such further prosecution and this is in line with Section 465 of the Cr.P.C., which again contemplates situations where there are irregular proceedings which would not vitiate the prosecution. Therefore, would submit that even if this Court were to take a view that the proceedings were vitiated on account of there being no valid sanction, the proceedings can revert back to the stage of taking cognizance, as there is a clear case of amassing illegal wealth beyond the known sources of income by the appellant and he has to be brought to book, which has been established at the trial in the present case on hand.

The learned Counsel for the appellant by way of reply, would point out that the decision in Surya Sankaram Karri''s case, is rendered as on 24-8-2006 and is not only with reference to the 1988 Act, but also with reference to the 1947 Act and it is thereafter that the Supreme Court has come to the conclusion that if there was no valid sanction, the prosecution is vitiated. Hence, he would submit that the contention that by virtue of a repeal by the 1947 Act read with Section 6 of the General Clauses Act, would require this Court to consider the effect of Section 19 of the 1988 Act, is not tenable. He would further submit that even on merits, insofar as the material documents that are cited by the prosecution are concerned, are required to be placed before the Sanctioning Authority, assuming that the Sanctioning Authority was not to issue the sanction order unless all the documents are placed before the said authority, in the absence of which, the proceedings are vitiated. This is as laid down in the judgment of the Apex Court in the case of State of Karnataka Vs. Ameer Jan, , that the Sanctioning Authority did not have the occasion to peruse the records and therefore, the proceedings were held to be bad. In this light, he would submit that the appeal would have to be allowed and the judgment set aside. In the light of the above contentions, from a bare perusal of Exhibit P. 29, which is stated to be issued by the under Secretary, Department of Public Works and CAD, in the name of the Government of Karnataka, as rightly pointed out by the Counsel for the appellant, all executive orders or action by the State shall be issued in the name of the State by the Governor and only if the officer is authorised by the Governor, it may possible for the Government to issue in the name of the Governor on behalf of the Government of Karnataka. Therefore, on the face of it, the order does not indicate that the authority was competent to issue such an order. The very author of the sanction order having been examined as P.W. 24 has categorically admitted that he was not competent to do so. Though his statement alone would not be sufficient to hold that the sanction order was valid or invalid, it remains a fact that it was not issued by the Competent Authority. In that, he was neither competent to appoint nor to remove him from service. Therefore, on several counts, the sanction order can be said to be bad in law and applying the decision of the Supreme Court in the case of Surya Sankaram Karri, grant of proper sanction by a Competent Authority is a sine qua non for taking cognizance of the offence and it is desirable that the question as regards sanction be determined at an earlier stage. When sanction itself is a nullity, therefore, all further action taken pursuant to the sanction would also be bad in law. The contention that there could be a failure of justice occasioned by such an invalid sanction order in the present case on hand, this can be demonstrated with reference to the circumstances. The check period in question was from 1957 to 1987 and the requirement of a Government servant to furnish his annual statement of assets and liabilities has come into force from the year 1965. Therefore, the requirement of such declaration not being present from the date of his appointment and the properties of his wife and his daughter having come into his hands over a period of time, the same not having been declared, is not unusual or cannot be held to be a suppression of acquisition of wealth other than under the known sources of income. This is a circumstance which would have to be taken into consideration. The fact that the sanctioning authority was not the actual authority who has issued the sanction order, it is quite possible that if the matter had been placed before the Competent Authority, this circumstance would have been taken into consideration in proceeding against the appellant in the first instance. That would be one way of addressing whether that failure of justice has occasioned by virtue of the actual authority who has granted the sanction not being the Competent Authority.

The further contention of the learned Special Public Prosecutor that even if the sanction order is held to be bad in law, the proceedings ought not to be quashed in entirety and that the matter should be reverted to the stage of pre-cognizance and proceedings ought to be carried on from that stage, is again a contention which cannot be readily accepted. Such an exercise may be appropriate given the facts and circumstances of a particular case. The present appellant had retired from service in the year 1993 and proceedings have gone on and continued to go on even as on date. The appellant is now aged 82 and the proposal of the learned Special Public Prosecutor that the matter should be reverted to the stage of pre-cognizance and that a sanction order could be obtained even now and proceedings taken thereafter, would necessarily require several years, going by the progress of the present matter upto date. Hence, such an exercise in the present case on hand in the discretion of this Court, is not warranted and given the circumstances of the case, this Court is of the opinion that the sanction order on the face of it having been found to be invalid, the fact that the appellant had not raised such a contention at the trial, is irrelevant when on the face of it the sanction order is found to be bad in law.

Consequently, the appeal is allowed. The judgment of the Court below is set aside. The appellant is acquitted and the property confiscated shall be returned to the appellant after holding an appropriate inquiry u/s 452. The fine amount paid shall be refunded to the appellant. The bail bond shall stand cancelled.