* THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + W.P.No.29928 of 2011 % Dated 09-12-2011 # Sri K.Rama Krishna Raju …. Petitioner Vs. $ Govt. of A.P. rep. by its Pro. Secretary, Revenue (Vig.IV(2) Department, Secretariat, Hyderabad and 2 others …. Respondents ! Counsel for the Petitioner: Sri N.Ravi Prasad ^ Counsel for respondents : G.P. for Revenue <GIST: > HEAD NOTE: ? Citations: 1) 2010(3) ALD 452 (DB) 2) AIR 2001 SC 3320 3) (2010) 8 SUPREME 496 4) AIR 1997 SC 3400 5) AIR 1996 SC 1910 6) AIR 1958 SC 124 7) AIR 1979 SC 677 8) (2009) 17 SCC 92 9) (2006) 1 SCC 294 10) AIR 1992 SC 1981 11) (2004)8 SCC 200 12) AIR 1969 SC 30 13) (2004) 7 SCC 442 14) (1996) 6 SCC 417 15) AIR 1960 SC 806 16) AIR 1965 SC 155 17) AIR 1999 SC 1416 18) AIR 1998 SC 889 19) AIR 1967 SC 1910 20) (1973) 1 SCC 194 21) (2008) 4 SCC 171 22) AIR 1988 SC 1681 23) (1993) 4 SCC 357 THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.P.No.29928 OF 2011 ORDER: India which was ranked 72nd in the year 2007 in the Corruption Perception Index (CPI), on the basis of a survey conducted by Transparency International, slipped to rank No.84 in the year 2009, from out of 180 surveyed nations, i.e., it was considered far more corrupt in the year 2009 than what was perceived earlier in the year 2007. India’s integrity score, a major component of the survey, stood at 3.4 out of the highest score of 10 which indicated that our country had a long way to go in reducing, let alone eradicating, corruption. A country with a higher score from out of 10 is considered to be less corrupt. India’s rank was calculated collecting data from 13 sources, all of which measured the overall extent of corruption by gauging the frequency and size of bribes in the public and the political sectors. (K. Srinivasulu v. Government of A.P. [1]). In the corruption perception index (CPI) for the year 2010, India was ranked even lower at 87 from out of the 178 surveyed nations. India’s integrity score for the year 2010 fell further to 3.3 from out of 10. For the year 2011, the corruption perception index (CPI) ranks India even lower at 95 from among the 183 surveyed nations with its integrity score falling down further to 3.1 in a scale of 10. Reasons for this infamy are evident and, unless urgent remedial measures are taken to arrest this rapid decline, we might well ﬁnd ourselves in the august company of the most corrupt nations of this Globe. Avarice and insatiable greed is slowly but surely eroding the very system of governance in this country. Corruption, unless severely dealt with, will destroy the very fabric of our society. Corruption by public servants has now reached endemic proportions and monstrous dimensions. Its tentacles have started grappling even institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of public oﬃces, through strong legislative, executive as well as judicial exercises, corrupt public servants may well paralyse the functioning of such institutions. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. (K.C. Sareen v. CBI[2]; K. Srinivasulu1). While most of those who indulge in acts of corruption are seldom caught, even the few, who are, try everything possible to avoid prosecution. The present case is yet another instance where a public servant, who was allegedly caught taking a bribe, seeks to avoid prosecution under the Prevention of Corruption Act, 1988 invoking the jurisdiction of this Court under Article 226 of the Constitution of India. This writ petition is ﬁled to declare the action of the 1st respondent, in issuing G.O.Ms.No.654, Revenue (Vig.IV(2)) Department dated 4.7.2009 according sanction for prosecution of the petitioner for oﬀences punishable under Section 7 and 13(2) of the Prevention of Corruption Act, 1988, as without jurisdiction on the ground that it amounts to reviewing the earlier order in Memo No.50991/Vig.IV(2)/2008-2 dated 5.2.2009 wherein the case of the petitioner was considered, and the matter was entrusted to the Tribunal for Disciplinary Proceedings for a detailed enquiry pursuant to the trap conducted on the petitioner on 22.2.2008. The petitioner was working as a Surveyor in the oﬃce of the Deputy Director of Survey and Land Records, Hyderabad. A complaint was made to the 3rd respondent that the President and Secretary of Pochamma temple had submitted a requisition to conduct survey of the lands of the temple in order to protect the said lands from encroachment. On the ground that the petitioner had demanded Rs.2000/-, for conducting the survey, a trap was laid on 22.2.2008 and, pursuant thereto, Crime No.5/RCT-CR-1/2008 was registered against the petitioner under Section 7 of the Prevention of Corruption Act, 1988. The matter was, thereafter, entrusted to the Tribunal for Disciplinary Proceedings, vide memo dated 5.2.2009, for a detailed enquiry into the allegations leveled against the petitioner. It is the petitioner’s case that the sanction granted thereafter on 4.7.2009, to prosecute him in a court of law, in eﬀect, amounted to reviewing the earlier Government memo dated 05.02.2009 whereby it was decided to take disciplinary action against him. The petitioner’s case, in short, is that the government has no power to review its own order and once a decision is taken, either to grant or not to grant sanction to prosecute a public servant in terms of Section 19 of the Prevention of Corruption Act, it is ﬁnal and cannot be subsequently reviewed by the Government. Learned counsel would rely on State of Himachal Pradesh v. Nishant Sareen [3] in this regard. Sanction for prosecution of a public servant is a weapon to ensure discouragement of frivolous and vexatious prosecution. It is a safeguard for the innocent, not a shield for the guilty. (Mansukhlal Vithaldas Chauhan v. State of Gujarat[4]; K. Srinivasulu1). 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 not be subjected to harassment, genuine charges and allegations should be allowed to be examined by the Court. (State v. Krishanchand Khushalchand Jagtiani[5]). 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 Punjab[6]; K. Srinivasulu1). 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[7]). Superior Courts cannot direct the sanctioning authority either to grant sanction, or not to do so. (State of Punjab v. Mohammed Iqbal Bhatti[8]; Nishant Sareen3). The object underlying Section 19 of the Prevention of Corruption Act, 1988 is to ensure that a public servant does not suﬀer harassment on false, frivolous, concocted or unsubstantiated allegations. The exercise of power under Section 19 is not an empty formality since the Government, or for that matter the sanctioning authority, is required to apply its mind to the entire material and evidence placed before it and, on examination thereof, reach a conclusion fairly, objectively and consistent with public interest as to whether or not, in the facts and circumstances, sanction should be accorded to prosecute the public servant. (Mansukhlal Vithaldas Chauhan4; Nishant Sareen3). An order granting or refusing sanction must be preceded by application of mind on the part of the appropriate authority, (Romesh Lal Jain v. Naginder Singh Rana [9]; Nishant Sareen3), on the material placed before it. The sanctioning authority must apply its mind to such material facts and evidence collected during the investigation. While granting sanction, the authority can neither take into consideration an irrelevant fact nor can it pass an order on extraneous considerations not germane for passing a statutory order. (Mohammed Iqbal Bhatti8; Nishant Sareen3). Although the State, in the matter of grant or refusal to grant sanction, exercises statutory jurisdiction it does not mean that the power once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as such a power is administrative in character. However, while passing an order for grant of sanction, application of mind on the part of the concerned authority is imperative. (Mohammed Iqbal Bhatti8; Nishant Sareen3). The power of review is not unbridled or unrestricted. Once the statutory power under Section 19 of the Act, or Section 197 of the Cr.P.C, has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same material again, because unrestricted power of review may not bring ﬁnality to such an exercise and, on change of the Government or change of the person authorised to exercise the power of sanction, the matter concerning sanction may be reopened by such an authority, and a diﬀerent order may be passed. The opinion on the same material may, thus, keep on changing and there may not be an end to such statutory exercise. A change of opinion per se on the same material cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However in a case where fresh material has been collected by the investigating agency subsequent to the earlier order, and is placed before the sanctioning authority; and, on that basis, the matter is reconsidered by the sanctioning authority; and, in the light of the fresh material, an opinion is formed that sanction to prosecute the public servant may be granted; there may not be any impediment to adopt such a course. (Nishant Sareen3). The question which would necessitate examination is whether the memo dated 5.2.2009, whereby the matter was entrusted to the Tribunal for Disciplinary Proceedings, was in eﬀect an order refusing to accord sanction. It is evident from the said memo dated 5.2.2009 that a discreet enquiry was conducted on the allegations relating to the corrupt activities of the petitioner; the enquiry revealed, prima facie, that there was need to probe the matter in detail; accordingly the Government decided to entrust the case to the Tribunal for Disciplinary Proceedings for a detailed enquiry into the allegations leveled against him; the petitioner should be placed on his defence before the Tribunal for Disciplinary Proceedings under Rule 3 of the APCS (DPT) Rules, 1989 to enquire into the allegations which are held substantiated against him; the Tribunal should conduct a detailed enquiry as per rules into the matter, and submit its report to the Government within the stipulated time; and the Director General, Anti Corruption Bureau, Hyderabad should furnish all the relevant material to the Tribunal for Disciplinary Proceedings to conduct an enquiry into the allegations against the petitioner so as to enable the Tribunal to submit their report to the Government. 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 Government memo dated 5.02.2009 does not even state that sanction for prosecution was being refused. All that the said Government memo records is that the Government had decided to initiate disciplinary proceedings against the petitioner. The said memo dated 5.2.2009 makes no mention of the Government having applied its mind to the question whether or not sanction should be accorded for prosecution of the petitioner. Any decision taken by the 1st respondent, whether to accord or to refuse to accord sanction for prosecution of the petitioner, must be preceded by application of mind to the material on record. Neither does the said memo disclose, nor is it the petitioner’s case, that any such exercise of application of mind by the 1st respondent, to the question of sanction, preceded issuance of the said memo. The mere fact that the petitioner’s case has been referred to the Tribunal for disciplinary proceedings does not necessitate the conclusion that the 1st respondent has decided not to accord sanction to prosecute the petitioner. The nature and scope of a criminal case is diﬀerent from those of a disciplinary proceeding. (Nelson Motis v. Union of India[10]). The approach and the objectives of criminal proceedings and disciplinary proceedings are altogether distinct and diﬀerent. (Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh[11]). Pendency of the proceeding before the criminal court does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The criminal court has no such power. The initiation and continuation of disciplinary proceedings is not calculated to obstruct or interfere with the course of justice in criminal proceedings. (Jang Bahadur Singh v. Baij Nath [12]). Ordinarily, proceedings in a criminal case and departmental proceedings can go on simultaneously. (Kendriya Vidyalaya Sanghthan v. T. Srinivas[13]). The interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent oﬃcer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and, if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in oﬃce indeﬁnitely, i.e., for long periods awaiting the result of criminal proceedings. It only serves the interest of the guilty and the dishonest. All the relevant factors, for and against, should be weighed and a decision taken. (State of Rajasthan v. B.K. Meena [14]; Delhi Cloth and General Mills Company Ltd. v. Kushal Bhan[15]) Tata Oil Mills Company Ltd v. Workmen[16]; Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.[17]). As noted hereinabove, according or refusing to accord sanction for prosecution is not an empty formality and requires application of mind. The mere fact that the matter has been referred to the Tribunal for Disciplinary Proceedings does not, by itself, necessitate the inference that the competent authority had, impliedly, refused to accord sanction for prosecuting the petitioner before the competent criminal court. In the absence of any speciﬁc order being passed earlier refusing to accord sanction for prosecution, it cannot be said that the order according sanction under the impugned G.O. amounts to a review. It would not be appropriate for this Court to infer a refusal to grant sanction from the Government memo dated 05.02.2009 as any such inference may well result in the possibility of a corrupt oﬃcer being let oﬀ scot-free. The adverse impact of lack of probity in public life leading to a high degree of corruption is manifold. The holders of public oﬃces are entrusted with certain powers to be exercised in public interest alone and, therefore, the oﬃce is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with, instead of being pushed under the carpet. If the conduct amounts to an oﬀence, it must be promptly investigated and the oﬀender against whom a prima facie case is made out, should be prosecuted expeditiously so that the majesty of law is upheld and the rule of law vindicated. (Vineet Narain v. Union of India[18]; K. Srinivasulu1). Sri N. Ravi Prasad, would place reliance on the memo No.623/Spl.C/A1/2008-1 dated 15.10.2008 wherein the Government had accepted the recommendations of a group of Ministers, and had issued certain instructions in respect of certain recommendations relating to ACB/Vigilance cases. In clause (ii) thereof it is noted that, after receipt of the ﬁnal report of the investigating agency, the Department concerned should further examine, within one month, and take a decision whether to entrust the case either for prosecution or for departmental action or for placing the accused oﬃcer on his defence before the Tribunal for Disciplinary Proceedings or for closure of the case and seek the advice of the A.P. Vigilance Commission. According to the Learned Counsel, the said memo permitted the Department either to prosecute or to take departmental action or to initiate disciplinary proceedings against the oﬃcer by having an enquiry conducted by the Tribunal for Disciplinary Proceedings; the respondents were entitled only to choose one amongst the three i.e., either to prosecute or to initiate disciplinary action or to take disciplinary proceedings before the Tribunal for Disciplinary Proceedings and, as they had earlier chosen to refer the matter to the Tribunal for Disciplinary Proceedings, they could not now grant sanction to prosecute the petitioner under the Prevention of Corruption Act, 1988. This contention is only to be noted to be rejected. The Memo dated 15.10.2008 is more in the nature of administrative/executive instructions issued by the Government under Article 162 of the Constitution of India. The requirement of according sanction is under Section 19 of the Prevention of Corruption Act, 1988. Such an exercise of statutory power cannot be curtailed or negated by executive/administrative instructions. If the rules are silent on any particular point, the Government can ﬁll up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. (Sant Ram Sharma v. State of Rajasthan[19]; Union of India vs. K. P. Joseph [20]; Dhananjay Malik v State of Uttaranchal[21]). The Government cannot, however, supersede statutory rules by administrative instructions. No executive instructions can be issued, or be read as, contrary to the statutory provisions in force. Even otherwise, the petitioner cannot seek a mandamus for enforcement of administrative/executive instructions issued by the Government. Ordinarily, the High Court would not issue a writ of mandamus to enforce administrative instructions/guidelines not having statutory force, and which do not give rise to any legal right in favour of the petitioner. (J.R. Raghupathy v. State of A.P[22]; Union of India v. S.L. Abbas [23]). I see no reason, therefore, to accept the petitioner’s contention that, since the Government had referred the matter to the Tribunal for Disciplinary Proceedings, it must be presumed to have refused to accord sanction for prosecution of the petitioner. The allegations leveled against the petitioner are of having taken a bribe. Public servants should not be permitted to evade prosecution in cases where such serious allegations of corruption are levelled against them. In such matters this Court would be loathe to exercise its discretionary jurisdiction under Article 226 of the Constitution of India to entertain a Writ Petition seeking a relief which, in eﬀect, is to evade prosecution under the provisions of the Prevention of Corruption Act, 1988. Viewed from any angle, the impugned G.O. does not necessitate interference. The writ petition fails and is, accordingly, dismissed. No costs. Date: 09 .12.2011 ____________________________ RAMESH RANGANATHAN, J Note: L.R. copy to be marked. B/o ASP [1] 2010(3) ALD 452 (DB) [2] AIR 2001 SC 3320 [3] (2010) 8 SUPREME 496 [4] AIR 1997 SC 3400 [5] AIR 1996 SC 1910 [6] AIR 1958 SC 124 [7] AIR 1979 SC 677 [8] (2009) 17 SCC 92 [9] (2006) 1 SCC 294 [10] AIR 1992 SC 1981 [11] (2004)8 SCC 200 [12] AIR 1969 SC 30 [13] (2004) 7 SCC 442 [14] (1996) 6 SCC 417 [15] AIR 1960 SC 806 [16] AIR 1965 SC 155 [17] AIR 1999 SC 1416 [18] AIR 1998 SC 889 [19] AIR 1967 SC 1910 [20] (1973) 1 SCC 194 [21] (2008) 4 SCC 171 [22] AIR 1988 SC 1681 [23] (1993) 4 SCC 357