* THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION No. 14967 of 2009 % 26-02-2010 # Sri K.Srinivasulu …. Petitioner Vs. $ 1. The Government of A.P. rep. By its Prl. Secretary, Home (SC.A)Dept. Block No.A Secretariat, Hyderabad and 3 others .. Respondents ! Counsel for the petitioners – Sri R.N.Hemendranath Reddy ^ Counsel for respondent No.1: Addl. Advocate General Counsel for respondent No.2 : V.Ravi Kiran Rao Counsel for respondent No.4 : Sri P. Gangaiah Naidu < Gist: >Head Note ? [1] AIR 1958 SC 148 2 1996 Crl.L.J. 2962 3 2009(3) ALT 770 4 1997(7) SCC 622 5 AIR 2005 SC 540 6 2007(5) ALT 703 7 1958 SCR 762 = AIR 1958 SC 124 8 (1978) 4 SCC 32 = AIR 1978 SC 174 9 (1984) 2 SCC 183 = AIR 1984 SC 684 10 (1986) 2 SCC 679 = AIR 1987 SC 537 11 (1995) 6 SCC 225 = AIR 1996 SC 186 12 (1996) 4 SCC 472 = AIR 1996 SC 1910 13AIR 2004 SC 517 14AIR 1979 SC 677 15(2007) 11 SCC 273 162000(4) ALD 665 17AIR 1995 SC 785 181992 Suppl (1) SCC 222 19AIR 1973 SC 2131 2075 Ind App 30 = AIR 1948 PC 82 21(2004) 4 SCC 615 222006(4) Crimes 278 23(1997) 8 SCC 73 24(2007) 4 SCC 380 25(1991) 4 SCC 54 261993(2) SCC 703 271987(1) SCC 227 28(2003) 7 SCC 546 29(2004) 11 SCC 1 30(2001) 6 SCC 584 31(1998) 1 SCC 226 THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 14967 of 2009 ORDER:(Per: The Hon’ble Sri Justice Ramesh Ranganathan) This writ petition is filed in public interest questioning the action of the 1st respondent in not according sanction to the 2nd respondent to prosecute the 4th respondent for offences punishable under Section 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988. Facts, in brief, are that the 2nd respondent Anti-Corruption Bureau (ACB) registered a case in Crime No. 8/ACB-CIU-HYD/2006 on 10.11.2006 against the 4th respondent for the offence under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988. After obtaining search warrants from the Principal Special Judge for SPE & ACB Cases, Hyderabad simultaneous searches were conducted on the residential premises of the 4th respondent and in his office room. Certain incriminating documents were seized. The 1st respondent placed the 4th respondent under suspension vide G.O.Rt. No. 90 Home (SC.A) Dept, dated 22.11.2006. Pursuant to a preliminary report submitted by the 2nd respondent on 12.12.2006, and on receipt of authorization from the 1st respondent, an application was moved and, on permission being accorded by the Principal Special Judge for SPE & ACB Cases, Hyderabad, the properties of the 4th respondent were attached. On the representation of the 4th respondent the 1st respondent, vide G.O.Rt. No.90 dated 18.01.2008, reinstated him into service pending finalization of the ACB enquiry. On completion of investigation the 2nd respondent, vide proceedings in Rc. No.204/RCA-CIU/2006 dated 06.08.2008, submitted the final report to the 1st respondent wherein he recorded a finding that the 4th respondent had acquired assets worth Rs.43,87,669.71/- disproportionate to his known sources of income. The draft sanction order, the imputations of misconduct and the list of witnesses and documents were enclosed to the said report and the 1st respondent was requested to accord sanction for the prosecution of the 4th respondent. The 1st respondent, vide G.O.Ms. No.25 Home (SC.A) Dept, dated 15.01.2009, directed initiation of a departmental enquiry against the 4th respondent. The 2nd respondent was directed to furnish the draft articles of charges, the statement of imputations of misconduct and the list of witnesses and documents etc., for initiating departmental action. Since G.O.Ms. No.25 dated 15.01.2009 made no mention, regarding sanction for prosecution of the 4th respondent, the 2nd respondent, vide letter in Rc. No.204/RCA-CIU/2006 dated 02.02.2009, requested the 1st respondent to reconsider the matter and issue revised orders according sanction for prosecution as the 4th respondent, in his view, did not deserve lenient treatment. However the 1st respondent, by memo No.1843/SC.A/A1/2006-11 dated 29.04.2009, reiterated the orders issued earlier in G.O.Ms. No.25 dated 15.01.2009. Thereafter a final report was filed in the Court of the Principal Special Judge for SPE & ACB Cases, Hyderabad on 16.07.2009 requesting that orders be issued for closure of the F.I.R. and return of the seized records and documents. The Principal Special Judge for SPE & ACB Cases, Hyderabad, by order in Application No.622 of 2009 in Crime No.8 of 2006 dated 31.07.2009, accepted the final report, closed the F.I.R and directed that the seized records be returned to the investigating officer. Detailed affidavits, counter affidavits and additional affidavits have been filed by the petitioner and the respondents in this writ petition. Oral submissions were made by Sri R.N. Hemendranath Reddy, Learned Counsel for the petitioner, the Learned Additional Advocate General appearing on behalf of the State Government, Sri V. Ravikiran Rao, Learned Counsel appearing for the 2nd resondent Anti-couuption Bureau and Sri P. Gangaiah Naidu, Learned Senior Counsel appearing for the 4th respondent. The rival contentions urged before this Court can, conveniently, be classified as under:- SANCTION ORDER – IS IT BEREFT OF REASONS? DOES IT ALSO SUFFER FROM NON-APPLICATION OF MIND? Sri R.N. Hemendranath Reddy, learned Counsel for the petitioner, would submit that refusal of the 1st respondent to accord sanction for prosecuting officers such as the 4th respondent, who possessed assets far disproportionate to their known sources of income, rendered the efforts made by the ACB & Vigilance Commission futile and enabled such corrupt officers to go scot free; G.O.Ms. No.25 dated 15.01.2009 and Memo No.1843 dated 29.04.2009 issued by the 1st respondent do not contain reasons for not according sanction; the 1st respondent did not apply its mind to the matter of according sanction and committed grave illegality in not according sanction to prosecute the 4th respondent; it was not open to the sanctioning authority to judge the truth of allegations made against the accused; sanction could not be withheld in a mechanical manner and if officers, who amassed disproportionate wealth and assets, were allowed to escape the clutches of the law as a result of such illegal and unjustifiable acts of the Government it would encourage others to continue indulging in corrupt activities; failure on the part of the 1st respondent to accord sanction to prosecute corrupt officials, against whom adequate evidence was gathered during investigation, was a colourable exercise of power. Learned Counsel would rely on Indu Bhusan Chatterjee v. State of West Bengal[1] and Jagjit Singh v. The State of Punjab[2]. The Learned Additional-Advocate General, appearing on behalf of the 1st respondent, would contend that it was well within the powers of the Government not to accord sanction; the fourth respondent had not been let off as departmental proceedings had been initiated against him; the petitioner could not dictate that sanction should be accorded as these were matters within the sole discretion of the 1st respondent; and the 1st respondent had applied its mind to the material on record and had passed a reasoned order refusing to accord sanction. He would rely on M. Satyanarayana Raju v. The Union of India rep., by its Secretary Law and Legislative Affairs[3] and Manusukhlal Vithaldas Chauhan v. State of Gujarat[4]. Sri P. Gangaiah Naidu, Learned Senior Counsel appearing for the 4th respondent, would submit that the Government was of the opinion that prosecution was not necessary and instead disciplinary action could be taken for all the charges; and the 1st respondent had applied its mind and had rightly refused to accord sanction. Learned Senior Counsel would rely on Manusukhlal Vithaldas Chauhan4; Dattaraj Nathuji Thaware v. State of Maharashtra[5] and D. Siva Prasad v. Government of Andhra Pradesh[6]. Sri V. Ravikiran Rao, Learned Counsel for the 2nd respondent, would submit that the order according, or refusing to accord, sanction was an administrative and not a quasi-judicial order and that the 4th respondent was not entitled to an opportunity of being heard before a decision was taken by the Government whether or not to accord sanction. Learned counsel would rely on Jaswant Singh v. State of Punjab[7]; Parmanand Dass v. State of A.P.[8]; R.S. Nayak v. A.R. Antulay[9]; Comptroller and Auditor-General of India v. K.S. Jagannathan[10]; Supdt. of Police (C.B.I.) v. Deepak Chowdhary[11]; State v. Krishanchand Khushalchand Jagtiani[12] and State of M.P. v. Awadh Kishore Gupta[13]. The requirement of obtaining sanction is to ensure that no public servant is unnecessarily harassed. Such protection is, however, not absolute or unqualified. While a public servant should be not subjected to harassment, genuine charges and allegations should be allowed to be examined by the Court. (Krishanchand Khushalchand Jagtiani12). The object of the provision for sanction is also that the authority giving the sanction should be able to consider for itself the evidence before it comes to the conclusion that the prosecution, in the circumstances, be sanctioned or forbidden. (Jaswant Singh v. State of Punjab7). Sanction lifts the bar for prosecution. Grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act. (Mohd. Iqbal Ahmed v. State of A.P[14]). It is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent, not a shield for the guilty. (Mansukhlal Vithaldas Chauhan4). An order of sanction should not be construed in a pedantic manner. The purpose for which an order of sanction is required to be passed should always be borne in mind. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. (State of Karnataka v. Ameerjan[15]). Before sanction is granted, under Section 19 of the Prevention of Corruption Act, the competent authority should peruse the concerned documents and come to a definite conclusion that it is a case for prosecution or otherwise. It will be a futile exercise if the sanction order is passed in a routine manner. (Mohd. Jaffrullah Khan v. State[16]). The authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. The Legislature has conferred on the authority, competent to remove the public servant from office, the power to grant sanction for the reason that he is competent to judge whether, on the facts alleged, there has been an abuse or misuse of the office held by the public servant. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether, prima facie, it has been so done. (R.S. Nayak9). What is material at the time of grant of sanction is that the necessary facts, collected during investigation, constituting the offence are placed before the sanctioning authority and it has considered the material. (Deepak Chowdhary11). Consideration implies application of mind. Ordinarily the order of sanction must ex-facie disclose that the sanctioning authority had considered the evidence and other material placed before it. (Jaswant Singh7; State of West Bengal v. Mohammed Khaliti[17]; and State of Bihar v. P.P. Sharma[18]; Mansukhlal Vithaldas Chauhan4). The sanctioning authority must accord or refuse sanction with reference to the facts on which the proposed prosecution is to be based. It is desirable that these facts appear on the face of the sanction order. (The State of Rajasthan v. Tarachand Jain[19]; Gokulchand Dwarkadas Morarka v. The King[20]). The order of sanction must ex-facie disclose that the sanctioning authority had considered the evidence and other material placed before it. (State (Anti- Corruption Branch) v. R.C. Anand (Dr)[21]). While the order of sanction need not contain detailed reasons, the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in that regard. Proper application of mind to the existence of a prima facie case regarding the commission of the offence is a precondition for the grant or the refusal to grant sanction. (P.P. Sharma18). G.O.Ms.No.25 dated 15.1.2009 notes the events preceding the request for accord of sanction, and to the representation submitted by the 4th respondent on 9.9.2008. The conclusion of the 1st respondent, as recorded in the said G.O, reads as under: “6. Government after careful examination of the matter in detail and keeping in view of contention raised by the Accused Officer in his representation and proposal of the Director General, Anti Corruption Bureau, Andhra Pradesh, Hyderabad, in the reference 7th read above, have decided and hereby ordered to initiate Departmental enquiry against the Accused Officer Sri Chandragiri Yesuratnam, Deputy Inspector General (Non-Cadre), Special Protection Force, Hyderabad. 7. The Director General, Anti Corruption Bureau, Andhra Pradesh, Hyderabad, is, therefore, requested to furnish the draft articles of charges, statement of imputations, witnesses and documents etc., for initiating departmental action against the Accused Officer Sri Chandragiri Yesuratnam, Deputy Inspector General (Non-Cadre), Special Protection Force, Hyderabad.” The memo dated 29.4.2009 records the request made by the 2nd respondent for reconsideration and thereby the 1st respondent informed the 2nd respondent that the points raised by him were re-examined by the Government in detail and the orders issued, vide G.O.Ms.No.25 dated 15.1.2009, were reiterated. The reasons for the government refusing to accord sanction are not discernable either from G.O.Ms.No.25 dated 15.1.2009 or the Memo of the 1st respondent dated 29.4.2009. The impugned G.O. does not disclose that the authority had arrived at the prima facie satisfaction that the relevant facts, referred to in the report submitted by the Anti-Corruption Bureau, does not constitute an offence under the Prevention of Corruption Act, 1988. It does not also reflect application of mind to the existence or otherwise of a prima facie case regarding commission of the offence, under Section 13(1)(e) of the Prevention of Corruption Act, 1988, by the 4th respondent. The impugned order is bereft of reasons. While the Government has the discretion to grant or withhold sanction, (Gokulchand Dwarkadas Morarka20; Mansukhlal Vithaldas Chauhan4), such discretion should be shown not to have been affected by extraneous considerations. (Mansukhlal Vithaldas Chauhan4). Exercise of discretion by the competent authority, to refuse or accord sanction, must be in accordance with law and, as the competent authority is required in law to assign reasons why it did not consider it necessary to accord sanction for prosecution, exercise of discretion in the present case is illegal. G.O.Ms. No.25 dated 15.01.2009 does not even state that sanction was being refused. All that the G.O. records is that the Government had decided to initiate a departmental enquiry against the 4th respondent. Both the Learned Additional Advocate General and Sri P. Gangaiah Naidu would submit that, since the Government had directed that disciplinary proceedings be initiated against the 4th respondent, it must be inferred that the Government had rejected the request of the Anti-Corruption Bureau for grant of sanction. There must be a clear recital in the sanction order that sanction, for prosecution under the Prevention of Corruption Act, 1988, is being accorded or refused. The memo dated 29.04.2009 merely reiterates the order issued in G.O.Ms. No.25 dated 15.01.2009 and both these proceedings do not explicitly state that sanction for prosecution of the 4th respondent, under the Prevention of Corruption Act, 1988, was being refused. It is evident, therefore, that the impugned order also suffers from non-application of mind. DOES THE REPORT SUBMITTED BY THE ACB ESTABLISH THAT THE 4TH RESPONDENT HAS ASSETS DISPROPORTIONATE TO HIS KNOWN SOURCES OF INCOME? Sri P. Gangaiah Naidu, learned Senior Counsel, would make a detailed analysis of the final report of the Anti-Corruption Bureau in support of his submission that the 4th respondent had established that his assets were not disproportionate to his known sources of income. Learned Senior Counsel would submit that the ACB has failed to take into account the legitimate income derived by the 4th respondent; and the expenditure incurred by him was inflated to justify the conclusion that he possessed assets disproportionate to his known sources of income. It is not for the High Court, in Writ Proceedings, to examine the adequacy or otherwise of the material placed by the Anti-Corruption Bureau (ACB) before the sanctioning authority or to sit in appeal over the findings recorded by it in its report submitted to the Government requesting that sanction be accorded to prosecute the 4th respondent. (R. Sundararajan v. State by D.S.P., SPE, CBI, Chennai[22]). Whether or not the said report makes out a prima facie case for grant of sanction to prosecute the 4th respondent, for possessing assets far disproportionate to his known sources of income, is a matter for examination by the authority competent to accord sanction. We see no reason, therefore, to examine the conclusions of the ACB in its final report, or to adjudicate whether or not the 4th respondent possessed assets disproportionate to his known sources of income. CAN MATERIAL, OTHER THAN THOSE ENCLOSED ALONG WITH THE REQUEST FOR SANCTION, BE EXAMINED BY THE SANCTIONING AUTHORITY? Sri P. Gangaiah Naidu, learned Senior Counsel, would submit that the then Chief Minister had, by endorsement dated 11.12.1988, rejected the A.C.B’s request for sanction to prosecute the 4th respondent on the ground that the petitioner had taken permission for the purchase and sale of all the properties which were the subject matter of the ACB report. Learned Senior Counsel would submit that, in the light of the endorsement of the then Chief Minister dated 11.12.2008 rejecting sanction, even if G.O.Ms. No.25 dated 15.01.2009 is held to be bereft of reasons no interference is called for by this Court in proceedings under Article 226 of the Constitution of India. The Principal Secretary to the Chief Minister, vide letter No.11471/CMP/2008 dated 06.09.2008, enclosed the letter of Dr. Ravi Mallu, Jedcherla-M.L.A. regarding the representation of the 4th respondent requesting to drop all further action/proceedings against him, and informed the Principal Secretary (Home) that the Chief Minister desired that the request be examined and the file circulated. Accordingly a note was put up to the Chief Minster who, by his endorsement dated 11.12.2008, observed: “Keeping in view the permissions taken by the A.O; details of finances and payments made, departmental enquiry may be ordered against Sri Yesuratnam, D.I.G. of Police.” Pursuant to the orders in circulation of the Chief Minister, a draft G.O. was put up for approval which later resulted in issuance of G.O.Ms. No.25 dated 15.01.2009. From G.O.Ms.No.25 dated 15.1.2009 it is evident that it was only after the 2nd respondent had submitted its final report, vide its letter dated 6.8.2008, that the 4th respondent had submitted the representation dated 9.9.2008 to the Chief Minister. The note file placed before this Court discloses that the endorsement of the then Chief Minister dated 11.12.2008 was based the recommendations of a Member of the Legislative Assembly enclosing a copy of the representation submitted by the 4th respondent after the ACB had sought sanction to prosecute him. Grant of sanction is an administrative function. It is neither a quasi-judicial act nor is there a lis involved. The question of giving an opportunity of hearing to the accused before granting sanction does not arise. (Deepak Chowdhary11; P.P. Sharma18). The competent authority was required to exercise his discretion, whether to grant or refuse sanction, only on the report submitted by the ACB and the enclosures thereto. No reliance could have been placed either on a representation submitted by the 4th respondent or the recommendations of the M.L.A, for the sanctioning authority has only to see whether the facts stated in the complaint prima facie discloses the commission of an offence under the Prevention of Corruption Act, 1988 or not. The actual production of evidence are matters of proof during trial and are not to be undertaken at the stage of sanction. (R.C. Anand (Dr)21, Kalpnath Rai v. State[23]). It is not for the competent authority to judge the truth of the allegations in the report submitted by the ACB on the basis of a representation subsequently submitted by the 4th respondent on 09.09.2008. He has no jurisdiction to hold a parallel investigation into the allegations. (Jagjit Singh2; Indu Bhusan Chatterjee1). The sanctioning authority is required to arrive at the prima facie satisfaction that the relevant facts, as discernible from the ACB report, constitute the offence and then either grant or refuse sanction. What is necessary and material is whether the facts collected during investigation constitute the offence for which sanction has been sought for. (Deepak Chowdhary11). SHOULD ADJUDICATION OF THIS WRIT PETITION BE DEFERRED TILL THE DISPOSAL OF W.P. No.23967 of 2009? Sri P. Gangaiah Naidu, learned Senior Counsel, would submit that in W.P. No.23967 of 2009, also a writ petition filed in public interest, a larger relief of according sanction for prosecution in all criminal cases relating to disproportionate assets was sought for; in the said Writ Petition the Division bench had passed an interim order directing the ACB to furnish details of all cases wherein it had recommended prosecution in the past five years; the 4th respondent could not be singled out by the petitioner herein; and the Government had, in several other cases of a similar nature, refused to accord sanction. The ACB has sought sanction for prosecution on the ground that the 4th respondent had acquired assets worth Rs.43.87 lakhs disproportionate to his known sources of income. An employee, alleged to have indulged in acts of corruption, and to have amassed wealth far disproportionate to his known sources of income, cannot be heard to say that he alone should not be singled out and judicial review of the validity of the order refusing sanction should await adjudication of a Writ Petition wherein the challenge is to the action of the Government in refusing to accord sanction for prosecution in all cases of employees alleged to possess assets disproportionate to their known sources of income. If the report of the ACB and its enclosures make out a prima facie case of the 4th respondent having amassed wealth disproportionate to his known sources of income then sanction for his prosecution should, ordinarily, be accorded. If, on the other hand, the ACB report does not make out a prima facie case the sanctioning authority should refuse to accord sanction. While a corrupt employee should be prosecuted forthwith, an innocent man should not have the Damocles sword, (i.e., pendency of this Writ Petition challenging the order of the Government refusing to accord sanction), hanging over his head. The issues raised in this Writ Petition, therefore, necessitate early resolution. We see no reason, therefore, to defer adjudication of this Writ Petition till W.P. No.23967 of 2009 is disposed of. DOES THE PETITIONER LACK LOCUS STANDI TO FILE THIS WRIT PETITION IN PUBLIC INTEREST? Sri P. Gangaiah Naidu, learned Senior Counsel, would submit that the petitioner had falsely stated that he was an advocate; he did not have locus standi to file this writ petition; the writ petition was filed for extraneous reasons at the behest of Sri B.V. Rami Reddy against whom the 4th respondent had submitted an enquiry report on 20.04.2005 holding him guilty of misappropriation of four lakhs; W.P. No.20323 of 2001, filed by Sri B.V. Rami Reddy, was dismissed by this Court on 01.12.2003; the petitioner was only a name lender for Sri B.V. Rami Reddy; and no public interest was involved in this writ petition. Sri R.N. Hemendranath Reddy, Learned Counsel for the petitioner would submit that the petitioner, a practicing advocate, had the locus standi to file this Writ Petition in public interest and the allegations made by the 4th respondent that the petitioner was acting at the behest of Sri Rami Reddy was without basis. Learned Counsel would rely on Vishwanath Chaturvedi v. Union of India[24]. The law, on locus standi, has veered around from genuine grievance against orders affecting prejudicially to sufficient interest in the matter. Action of the executive, in disregard of the provisions of