IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE NINETEENTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 449 of 2002 Between: Tetali Satyanarayana Reddy S/o.Kanikireddy R/o. Marteru, Penumantra Mandal, W.G.District. ..... PETITIONER AND 1 The government of A.P. REp by its Secretary (Revenue) Revenue Department, Hyderabad. 2 K.Kanna Babu REvenue divisional Officer, (Joint Collector), Narsapur,W.G.District. 3 Wilson Babu Revenue Divisonal Officer, Poduru Mandal, W.G.District. 4 Y.Vijaya Kumar Jr.Engineer, Panchayat Raj, Palakollu, W.G.District. 5 D.Suresh Babu Mandal Surveyor, Ponduru Mandal, W.G.District. 6 Veera Pothana REvenue Inspector, Poduru Mandal, W.G.District. ..RESPONDENTS Counsel for the Petitioner:SRI.K.V.SUBRAHMANYA NARUSU Counsel for respondents 1 to 5: GP FOR REVENUE Counsel for respondent No.6: None appeared The Court made the following : O R D E R: This writ petition is filed for a writ of Mandamus to set aside memo No.5117/VIG III (1)/2001 dated 20-08-2001 issued by respondent No.1 and for a consequential direction to the respondents to accord sanction to launch prosecution against respondents 2 to 6. Heard Sri K.V.Subrahmanya Narusu, learned counsel for the petitioner, and the learned Government Pleader for Revenue for respondents 1 to 5. No one appeared for respondent No.6. The petitioner is the owner of the properties comprised in R.S.Nos.196 and 198 of Jagannadhapuram Village. He was also in occupation of some extent of land in R.S.No.197 and he claims that Jagannadhapuram Gram Panchayat gave tree patta in favour of his father in the years 1928 and 1940 and in his favour on 29-08-1962, in pursuance of which coconut trees were planted over the said land. The petitioner averred that 49 coconut trees were in existence at the relevant point of time. It is the further case of the petitioner that he constructed a rice mill in R.S.No.196 in the year 1974 apart from a kallam with Kadapa slabs, a shopping complex in R.S.Nos.196 and 198 and a compound wall with the approval of the Gram Panchayat. The petitioner pleaded that on 07-06-1998, with the aid and instigation of respondents 2 to 6, the Sarpanch and Upa-Sarpanch of Jagannadhapuram Gram Panchayat came to his rice mill along with men and machinery and removed all the coconut trees high-handedly, destroyed the kallam, demolished the compound wall and the staircase of the shopping complex with the help of machinery brought by them without notice to him. The petitioner estimated the loss suffered on account of the said act at Rs.5,00,000/- and averred that he filed O.S.No.146 of 1998 on the file of the Junior Civil Judge, Palakol for damages. The petitioner further averred that he got issued notice dated 15-02-1999 to respondent No.1 enclosing a copy of the plaint and order of injunction in I.A.No.487 of 1998 seeking sanction of prosecution of respondents 2 to 6 under Section 197 of the Code of Criminal Procedure, 1973 (for short “the Code”); that as respondent No.1 has not taken a decision on his notice, he filed W.P.No.15057 of 1999, which was disposed of by this Court by order dated 24-10-2001, wherein this Court, inter alia, gave liberty to the petitioner to send a copy of legal notice dated 15-02-1999 to the Home Secretary of Government of Andhra Pradesh; that after the petitioner filed a contempt case, wherein a direction was given to the Principal Secretary to respondent No.1 to dispose of the petitioner’s representation/legal notice, and a further contempt case filed by him, respondent No.1 issued memo dated 20-08-2001, whereby it negatived the petitioner’s request for granting sanction to prosecute respondents 2 to 6. This memo is assailed in this writ petition. On behalf of respondents 1 and 2, the Officer on Special Duty, Revenue Department, Secretariat Buildings filed a counter-affidavit, wherein he, inter alia, stated that in pursuance of the resolutions of the Mandal Praja Parishad and the Jagannadhapuram Gram Panchayat, to evict the encroachers from R.S.No.197, which was a poramboke land, the encroachers were evicted on 07-06-1998 in the presence of the Panchayat Raj and the Revenue officials; that as the encroachments were removed after following due procedure and that the Officers did not evict the encroachers, the petitioner’s request for prosecuting them was negatived. It is further averred that the Government found that there was no truth in the allegation made by the petitioner that the Revenue officials removed all the coconut trees, destroyed the kallam and demolished the compound wall of the petitioner, and that therefore, the impugned memo does not suffer from any illegality. At the hearing, Sri K.V.Subrahmanya Narusu, learned counsel for the petitioner, submitted that a public servant not removable from his office save by or with the sanction of the Government cannot be prosecuted for any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty, unless sanction for this purpose is given by the Government under Section 197 of the Code and in the face of the clear and unequivocal allegations made by the petitioner that respondents 2 to 6 have aided and instigated the Sarpanch and Upa-Sarpanch of Jagannadhapuram Gram Panchayat to enter the private land of the petitioner in Survey Nos.196 and 198, fell the coconut trees and demolish kallam and compound wall, there is no justification for respondent No.1 in denying sanction to prosecute respondents 2 to 6. The learned counsel for the petitioner placed reliance on the judgments of the Supreme Court in Amrik Singh v. State of Pepsu[1], Gauri Shankar Prasad v. State of Bihar and another[2] and Sankaran Moitra v. Sadhna Das and another[3]. Opposing these contentions of the learned counsel, the learned Government Pleader submitted that the only allegation made by the petitioner is that respondents 2 to 6 aided and instigated the Sarpanch and the Upa-Sarpanch to remove the encroachments and demolish the private properties of the petitioner and that the Government, as a fact, found that there was no truth in the said allegation. He, therefore, sought to justify the impugned memo. The legal position regarding the requirement of sanction to prosecute a public servant, who is not removable from his office, otherwise than by the Government’s sanction, is too well settled in the judgments cited by the learned counsel for the petitioner supra, and the host of various other judgments of the Apex Court. If the acts complained of are directly concerned with the official duties of a public servant, he cannot be prosecuted without a sanction. In Amrik Singh (1 supra), the Supreme Court held that if an act is complained of against the public servant, whereupon if the public servant claims that he has done the said act by virtue of his office, then sanction would be necessary irrespective of whether the act done by him was in proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial. The Supreme Court had occasions to deal with the manner in which the State Government should exercise its power under Section 197 of the Criminal Procedure Code, 1973. I n Matajog Dobey v. H.C.Bhari[4], the Apex Court held that the discretionary power vested in the sanctioning authority is not necessarily a discriminatory power. While dealing with the power under Section 197 of Cr.P.C with reference to sanction for prosecution under the Prevention of Corruption Act, 1988, the Supreme Court in Mansukhlal Vithaldas Chauhan v.State of Gujarat[5], held that the word ‘sanction’ implies application of mind to the facts of the case and also to the material and evidence collected during investigation by the authority competent to grant sanction. The Supreme Court further held: “sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty.” It also held that the validity of sanction would depend upon the material placed before the authority and the fact that all the relevant facts, material and evidence have been considered by it and that the order of sanction must ex facie disclose that the sanctioning authority had considered such evidence and material collected during investigation and placed before it. In the instant case, the only reason given by respondent No.1 for refusing to accord sanction is that there is no truth in the allegation made by the petitioner that the officers concerned were involved in either removal of encroachments from R.S.No.197 or demolishing the properties of the petitioner situated in his patta land in R.S.Nos. 196/1 and 198/1. Though the memo of respondent No.1 referred to proceedings of the Collector dated 06-04-2001, the contents of the said proceedings have not been discussed by the Government. It is axiomatic that when a sanction is sought to prosecute a public servant, respondent No.1 is entitled to be, prima facie, satisfied that there is some truth in the allegations made against the public servant. I may hasten to add that in the guise of arriving at this satisfaction, the Government cannot make a roving enquiry, and give findings of fact thereupon. If the applicant is able to produce some credible material, on the basis of which the Government can arrive at a prima facie conclusion that the complaint is not vexatious and that the alleged act committed by the public servant was while discharging or purporting to discharge his official duties constitutes an offence, it is the duty of respondent No.1 to give sanction. The learned counsel for the petitioner admitted that no material was sent by the petitioner along with notice dated 15-02-1999 to prima facie show that the properties in Survey Nos.196 and 198 were demolished. As respondent No.1 also failed to discuss the material, based on which it arrived at the finding that there is no truth in the petitioner’s allegation of demolition of the private properties, I am of the view that respondent No.1 should reconsider the representation of the petitioner. The petitioner is permitted to make a fresh representation along with the material in respect of the claim that his private properties in Survey Nos.196 and 198 of Jagannadhapuram Village were demolished. The impugned memo is accordingly set aside. The petitioner is permitted to file his representation, within a period of six (6) weeks from today, and on receipt of the said representation, respondent No.1 shall give the petitioner an opportunity of personal hearing, pass a detailed speaking order and communicate the same to the petitioner, within a period of eight (8) weeks thereafter. Subject to the above, the writ petition is disposed of. C.V.NAGARJUNA REDDY, J Dated 19th March, 2009 vrn [1] AIR 1955 Supreme Court 309 [2] AIR 2000 SC 3517 [3] AIR 2000 SC 1599 [4] AIR 1956 SC 44 [5] (1997) 7 SCC 622