M.L. Girish vs State and Others

P.D. Waingankar, J.—1. Petitioner has filed this petition under Section 482 Cr.P.C. to quash the proceedings initiated against him in Spl.C.C. No. 154/2014 on the file of Prl. Sessions Judge & Special Judge, Bangalore Rural District.

One G. Venkatesh, an Advocate, R/o. Kalidasa Nagar, Doddaballapura filed a complaint before the Police Inspector, Karnataka Lokayukta police station, Bangalore Rural on 20.2.2014. In the complaint, it is alleged that in Doddaballapur Town police station, two cases were registered against him in Cr. No. 152/2013 and Cr. No. 20/2014 for the offence punishable under Section 363 of IPC. He obtained the stay order from this Court in both the cases. Though he is innocent and has not committed any offence, false complaints have been filed against him by the persons inimically disposed against him in order to harass him and to spoil his reputation. Therefore to close those cases, he approached accused No. 1 B. Paramesh the ASI of the Doddaballapur Town Police Station. The accused No. 1-ASI demanded a sum of Rs. 1.00 lakh as bribe amount for himself and his superior officers. He came to the Lokayukta police station on 14.2.2014 and passed on the said information. He was given voice tape recorder and was asked to approach accused No. 1 in the police station and to discuss the matter once again and to record the conversation, if any, with regard to demand for bribe. Accordingly, on 19.2.2014, he approached the petitioner M.L. Girish- PSI of Doddaballapur Town police station in the High Court Premises at about 10.30 a.m. and discussed regarding the withdrawal of false cases filed against him. He assured him to close the cases filed against him and to help him in future and by pointing out to accused No. 1 ASI Paramesh, who was also present, he directed the complainant to talk to accused No. 1. On 20.2.2014, the complainant talked to accused No. 1 at about 7.20 a.m. over his mobile No. 9886876428. He was told by accused No. 1 that an amount of Rs. 20,000/- to 25,000/- has to be given to Girish-the petitioner and he asked him to bring that amount. The complainant recorded the said conversation in his mobile. He being an Advocate was not willing to get his work done by paying the bribe amount to a Public Servant. He lodged a complaint with a request to take action against accused No. 1 and petitioner-accused No. 2. He handed over amount of Rs. 25,000/- to be given as bribe, voice recorder and the conversation recorded by him in his mobile. The complaint came to be registered in Cr. No. 5/2014 in Lokayukta police station, Bangalore Rural District, Bangalore, for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of P.C. Act 1988. The Investigating Officer upon securing the panchas, drew up entrustment panchanama for having entrusted tainted currency notes to the complainant. He proceeded to Doddaballapur Town police station with complainant and witnesses and trapped accused No. 1 while demanding and accepting bribe amount of Rs. 25,000/- from the complainant. A trap panchanama was drawn. Tainted currency notes were recovered from the possession of accused No. 1. During the course of investigation, Investigating Officer could not collect prima-facie evidence against this petitioner, who was arrayed as accused No. 2 and as such this petitioner was given up and charge-sheet came to be filed only against accused No. 1 for the offences punishable under Sections 7, 13(1) (d) r/w Section 13(2) of Prevention of Corruption Act, 1988 in Spl.C.C. No. 154/2014 before the Sessions Judge and Special Judge, Bangalore Rural District.

The complainant was made known of the fact that accused No. 2-petitioner was given up in the charge-sheet. The complainant filed a protest petition before the Special Judge. By order dated 10.2.2015, the Special Judge allowed the protest petition filed by the complainant on 24.11.2014 observing that the material already available on record is sufficient to proceed against the petitioner-accused No. 2. Therefore, to quash the order dated 10.2.2015 passed on protest petition and to quash the proceedings as against him in Spl. C.C. No. 154/2014, this petition is filed under Section 482 Cr.P.C. by the petitioner/accused No. 2.

The submission of the learned counsel for the petitioner is that the Investigating Officer after investigation has rightly given up this petitioner as there was no material, much less, prima-facie material to proceed against the petitioner. It is further submitted that this petitioner neither demanded nor accepted the bribe amount nor the tainted currency notes were recovered from his possession, that the learned Special Judge without there being any material allowed the protest petition filed by the complainant based on the conversation said to have been taken place between the complainant and the petitioner as disclosed by H.R. Ramakrishna- a charge-sheet-witness No. 3. Further it is submitted that the petitioner being a Public servant working as Sub-Inspector of Police, cognisance taken against him without previous sanction as required under Section 19(1) of the Prevention of Corruption Act, 1988(''P.C. Act'' for short) is bad in law, inasmuch as, the Special Judge gets no jurisdiction to take cognisance. Hence the learned counsel for the petitioner sought to quash the proceedings. The learned counsel relied upon the decision of the Apex Court reported in , Laws (SC) - 2015 - 7 - 57 in the case of Nanjappa v. State of Karnataka in support of his submission.

On the other hand, the learned Standing Counsel for respondent No. 1 Lokayukta Sri. Venkatesh S. Arabatti and Smt. Nalina Mayegowda learned counsel appearing for respondent No. 2/complainant by taking me through the provision of Section 19(3) of the P.C. Act would submit that proviso 3 to Section 19 is an exception to Section 19(1) of P.C. Act 1988 and therefore the Special Judge is right in taking cognizance of the offences against the petitioner. Hence both the learned counsel sought for dismissal of the petition.

Section 19(1) of the P.C. Act, reads that:--

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 of the Government-

(a) xxxxxxxxxxxxxxxx

(b) xxxxxxxxxxxxxxxxx

(c) xxxxxxxxxxxxxxxxx"

It opens with the word ''No court shall take cognisance of an offence punishable under sections 7, 10, 11, 13 and 15 except with the previous sanction of the Government. In the case on hand, it is not in dispute that the petitioner is a Public Servant working as Sub-Inspector of Police in Doddaballapur town police station as on the date of alleged incident. It is also not in dispute that no previous sanction has been obtained to take cognizance of the offence against the petitioner. The argument of learned counsel for the Lokayukta and the complainant is that sanction is not a condition precedent to take cognizance of the offences against the petitioner by the Special Judge in view of proviso (3) of Section 19 of P.C. Act, which is an exception to proviso (1) of Section 19 of the Act. Section 19(3) reads that no finding, sentence or order passed by 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. The reading of Section 19(3) makes it clear that the order passed by the trial court cannot be reversed in appeal or revision on the ground of absence, any error, omission or irregularity in, the sanction required under sub-section(1). Thus Section 19(3) will come into play while deciding an appeal or revision filed against the order passed by Special Judge. It has no role to play while taking cognizance by Special Judge or while deciding a case by Special Judge. Therefore, sub-section (3) of Section 19 cannot be called as an exception to Section 19(1). Section 19(1) operates before the Special Judge while Section 19(3) before appellate Court. Thus sanction to prosecute a Public Servant is a pre-condition and as matter of fact, it is a rule. In the absence of valid previous sanction required under Section 19(1) of Prevention of Corruption Act 1988, the learned Special Judge was not competent to take cognizance of the offence alleged against the petitioner. Sanction goes to the root of the jurisdiction of the Special Judge. However the learned Special Judge without discussing anything about the previous sanction to be obtained to take cognizance, conveniently brushed aside the crucial aspect and took cognizance of the alleged offences against the petitioner.

The Supreme Court in a decision reported in LAWS(SC)- 2015 -7-57 in the case of Nanjappa v. State of Karnataka while discussing the necessity of sanction or otherwise, held as under:--

"Prevention of Corruption Act, 1988- Sections 7 and 13 read with Sections 13(2) and 19- Illegal gratification- Sanction for prosecution -Absence of valid sanction affects competence of Court to try and punish accused- Competence of court trying accused so much depends upon existence of a valid sanction- In case sanction is found to be invalid court can discharge accused relegating parties to a stage where competent authority may grant fresh sanction for prosecution in accordance with law- If trial Court proceeds despite invalidity attached to sanction order, same shall be deemed to be non-est in eyes of law and shall not forbid second trial for same offences upon grant of valid sanction for such prosecution. Prevention of Corruption Act, 1988-Sections 7 and 13 read with Sections 13(2) and 19-Criminal Procedure Code, 1973-Section 465- Illegal gratification-Sanction for prosecution -In absence of valid previous sanction required under Section 19 of Prevention of Corruption Act, trial Court was not competent to take cognizance of offence alleged against appellant- Absence of sanction order implied that court was not competent to take cognizance or try accused -Trial by an incompetent Court was bound to be invalid and non-est in law-However, there is no compelling reason for directing fresh trial at distant point of time in a case involving bribe of Rs. 500/- for which appellant has already suffered ignominy of trial, conviction and jail term- Order of reversal of acquittal passed by High Court set-aside.

It is held in para 5 of the judgment that a plain reading of Section 19(1) leaves no manner of doubt that the same is couched in mandatory terms and forbids court from taking cognisance of any offence punishable under Sections 7, 10, 11, 13 and 15 against public servants, except with the previous sanction of the competent authority. The non-obtaining of sanction cannot be regarded as a mere technical defect. Section 19(1) is a complete and absolute bar to any Court taking cognizance of the offences punishable under Sections 7, 10, 11, 13 and 15 of the Act against a public servant.

The Supreme Court in para 15 of the judgment went on record to say "suffice it to say, that a co-joint reading of sub-section 19(3) (4) leaves no manner of doubt, that the said provisions envisage a challenge to the validity of the order of sanction or the validity of the proceedings including finding, sentence or order passed by the Special judge" in appeal or revision before a Higher Court and not before a Special Judge. It is further observed that the rationale underlining the provision obviously is that if the trial has proceeded to conclusion and resulted in a finding or sentence, the same should not be lightly interfered by the appellate or the revisional court simply because there was some omission, error or irregularity in the order sanctioning prosecution under section 19(1) of P.C. Act. Therefore, the cognizance taken against the petitioner is without jurisdiction, inasmuch as, it is bad in law. As such, the petition is allowed. The proceedings initiated against the petitioner in Spl.C.C. No. 154/2014 on the file of Prl. Sessions Judge and Special Judge, Bangalore Rural District in pursuance of Cr. No. 5/2014 of Karnataka Lokayukta police station, Bangalore Rural are hereby quashed."