TTK PRESTIGE LTD vs. THE DEPUTY COMMISSIONER OF INCOME-TAX

The Lokayukta Police, on 25.06.2015, laid the charge sheet against the petitioner for the offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988, and against the accused No.2, wife of the accused No.1 for the offence punishable under Sections 109, 177, 468, 465 & 471 of IPC. The Sessions Judge by order, dated 16.7.2015, took cognizance of the aforesaid offences.

Accused No.2 filed an application for discharge under Section 227 of Cr.P.C. The said application came to be dismissed, against which, Criminal Revision Petition in Crl.R.P. No.814/2015 was filed before this Court. This Court vide order dated 24.02.2016 allowed the Criminal Revision Petition and set aside the order taking cognizance for non-application of mind, and also observed that the Police did not verify the assets of accused No.2 which were assessed by the Income Tax Department. The accused No.2 was discharged, and the same attained finality. Thereafter, the petitioner filed an application seeking discharge on the following grounds: i) Sanction is without authority of law, since it was granted by an incompetent authority;

The application for discharge filed by the petitioner came to be rejected on 23.12.2017, against which, the petitioner preferred writ petition in W.P.No.736/2018. This

Mr. Sandesh J. Chouta, learned senior counsel appearing for the petitioner's counsel would make the following submissions:

On the other hand, Mr. B.S. Prasad, learned Special Public Prosecutor, appearing for the respondent-Lokayukta would make the following submission:

I have examined the submissions made by the learned counsel appearing for the parties.

It is undisputed that the petitioner was working as a Chief Engineer which is a Group A Senior Scale post and he is the head of the Department as specified under item No.19 in Appendix I of the KCSR. 9. Rule 20(1)(a)of the Rules,1977, specifies that all cases specified under Schedule I to these Rules shall be brought before the Cabinet after submission to the Minister-in-charge. 10. Schedule I of the Transaction Rules, 1977 at item No.23 deals with the proposals for dismissal, removal or compulsory retirement Under Article 311 [holding post in Group-A or Group-B] [except those, for imposing the penalties of dismissal, removal or compulsory retirement in accordance with the Karnataka Civil Services (Classification Control and Appeal) Rules, 1957, for an established charge of unauthorized absence]. 11. Rule 21 of the Transaction Rules 1977, specifies that subject to the provision of Rule 20, all cases specified in Schedule I to these Rules shall be brought before the Cabinet. 12. Rule 23 of the Transaction Rules, 1977 deals with the procedure for placing the cases before the Cabinet.

Rule 27 of the Transaction Rules, 1977 deals with the meeting of the Cabinet as directed by the Chief Minister. 14. Rule 28 of the Transaction Rules, 1977 specifies that the Chief Minister or, in his absence, any other Cabinet Minister, nominated by him, shall preside at a meeting of the Cabinet. 15. Rule 29 of the Transaction Rules, 1977 specifies that, when a case has been decided by the Cabinet, the Secretary of the Department shall take action to give effect to the decision. Sub-rule (2) of Rule 29 of the Transaction Rules, 1977 specifies that, the decision of the Cabinet relating to each case, shall be separately recorded and shall be placed with the record of the case. An extract of the decision shall be sent to the Secretary of the Department concerned for necessary action. 16. Rule 37 of the Transaction Rules, 1977 specifies that all cases of the nature specified in the Third Schedule to these rules shall, before the issue of orders thereon, be submitted to the Governor.

Item No.9(b) of the Third Schedule of the Transaction Rules, 1977, deals with the proposals for rejection in rank, compulsory retirement, removal or dismissal from service of the following officer and one of the officer enumerated in the said item includes Heads of the Departments. 18. Rule 40 of the Transaction Rules, 1977 deals with the cases requiring the approval of the Governor under these rules or any provision of law and Bills to be assented to, or reserved for the consideration of the President by the Governor under the Constitution, shall be sent to the Secretary to the Governor for submission to the Governor, by the Secretary of the Department after perusal by the Minister-in-charge. 19. A conjoint reading of the aforesaid rules indicates that the case for granting sanction to prosecute the petitioner is to be placed before the Minister-in-charge, who in turn, has to place the same before the Cabinet and the Cabinet after taking a decision shall recommend to the Governor, who in turn, will direct the Secretary of the Department to pass an appropriate order.

Similar issue involved in this petition came up for consideration before the Co-ordinate of this Court in the case of B. Shivashankar -vs- State by Karnataka Lokayuktha Police, Bengaluru, 2022(3) Kar.L.J. 575 and following points were framed for consideration: "(i) Whether sanction accorded by the incompetent Authority would vitiate the entire proceedings ?. (ii) Whether material collected during the investigation for offence punishable under Section 13(1)(d) of the Act could have been used in the peculiar facts of this case for offences punishable under Section 13(1)(e) of the Act ?"

The Co-ordinate Bench of this Court after examining the Karnataka Civil Services Rules, provisions contained in the Transaction Rules, 1977 at para 16 has held as follows: "16. In the light of the aforesaid judgments of the Apex Court with regard to Competent Authority according sanction and the ground for want of sanction by the Competent Authority as urged by the petitioner deserves to be accepted. Therefore, the subject point that arose for consideration is held in favour of the Petitioner".

The decision rendered in the case of Dr. H.C. Sathyan, supra, is not applicable to the facts of the case, since, the Court was dealing with the sanction granted to prosecute the Officer i.e., Motor Vehicle Inspector, who was not the head

The decision rendered in the case of Sri Theerthira N. Appachu @Titira N. Appachu, supra, was also without reference to the Rules, 21, 23 & 40 of the Karnataka Government (Transaction of Business) Rules, 1977.

Section 19 of the Prevention of Corruption Act, specifies that, no Court shall take cognizance of an offence under sections 7, 10, 11, 13 & 15 in the case of the person who is employed in connection with the affairs of the State and is not removable from his office save by or his sanction of the State Government.

Conjoint reading of the provisions contained in the Section 19 of the Prevention of Corruption Act, KCSR and also the Transaction Rules, 1977, it is clear that the competent authority to take a decision, as to whether sanction can be granted to prosecute the petitioner, who is the head of the Department, is the Cabinet, and upon taking such a decision, the Cabinet has to recommend to the Governor for approval,

In the instant case, sanction to prosecute the petitioner, who is the head of the department has been granted by the Minister-in-charge, who is not the competent authority as specified under KCSR and also the Transaction Rules, 1977.

The Hon'ble Supreme Court in the case of Nanjappa -vs- State of Karnataka, reported in (2015) 14 SCC 186, at para 28 held as follows: "28. The next question then is whether we should, while allowing this appeal, set aside the order passed by the High Court and permit the launch of a fresh prosecution against the appellant, at this distant point of time. The incident in question occurred on 24th March, 1998. The appellant was, at that point of time, around 38 years old. The appellant is today a senior citizen. Putting the clock back at this stage when the prosecution witnesses themselves may not be available, will in our opinion, serve no purpose. That apart, the trial Court had, even upon appreciation of the evidence, although it was not required to do so, given its finding on the validity of the sanction, and had held that the prosecution case was doubtful, rejecting the prosecution story. It will, therefore, serve no purpose to resume the proceedings over and again. We do not, at any rate, see any compelling reason for directing a fresh trial at this distant point of time in a case of this nature involving a bribe of Rs.500/-,for which the appellant has already suffered the ignominy of a trial, conviction and a jail term no matter for a short while. We, accordingly, allow this appeal and set aside the order passed by the High Court."

The petitioner is due for retirement on attaining the age of superannuation in the month of April, 2023. Hence, permitting the respondent to launch criminal prosecution afresh would be an abuse of process of law, since the petitioner will be deprived of speedy trial guaranteed under Article 21 of the Constitution of India for no fault of him.

Accordingly, I pass the following: ORDER i) The writ petition is allowed; ii) The impugned proceedings in Spl.C.C. No.327/2015, pending on the file of the 77th Additional City Civil and Sessions Court and Special Court, Bengaluru, is hereby quashed.