THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN AND THE …acb.telangana.gov.in/ACB/Downloads/Judgement/K.Srinivasulu Vs Govt. of... · THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE

* THE HON’BLE SRI JUSTICE GODA RAGHURAMAND

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.ASecretariat, 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 1482 1996 Crl.L.J. 29623 2009(3) ALT 7704 1997(7) SCC 622

5 AIR 2005 SC 5406 2007(5) ALT 7037 1958 SCR 762 = AIR 1958 SC 1248 (1978) 4 SCC 32 = AIR 1978 SC 1749 (1984) 2 SCC 183 = AIR 1984 SC 68410 (1986) 2 SCC 679 = AIR 1987 SC 53711 (1995) 6 SCC 225 = AIR 1996 SC 18612 (1996) 4 SCC 472 = AIR 1996 SC 191013AIR 2004 SC 51714AIR 1979 SC 67715(2007) 11 SCC 273162000(4) ALD 66517AIR 1995 SC 785181992 Suppl (1) SCC 22219AIR 1973 SC 21312075 Ind App 30 = AIR 1948 PC 8221(2004) 4 SCC 615222006(4) Crimes 27823(1997) 8 SCC 7324(2007) 4 SCC 38025(1991) 4 SCC 54261993(2) SCC 703271987(1) SCC 22728(2003) 7 SCC 546 29(2004) 11 SCC 130(2001) 6 SCC 584

31(1998) 1 SCC 226

THE HON’BLE SRI JUSTICE GODA RAGHURAMAND

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 SUFFERFROM 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 KNOWNSOURCES 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 THEREQUEST FOR SANCTION, BE EXAMINED BY THE SANCTIONINGAUTHORITY?

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 THEDISPOSAL 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 PETITIONIN 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 law, raise substantial issues of

accountability of those entrusted with the responsibility of administration. It

furnishes enough cause for an individual to approach by way of a writ petition. The

authorities can neither be permitted to seek shelter under the technicalities of

locus standi nor can they plead restraint in the exercise of discretion as grave

issues of public concern outweigh such considerations. (Bangalore Medical

Trust v. B.S. Muddappa[25]).

Public interest litigation is an effective weapon in the armoury of law for

delivering justice to citizens. It should be aimed at redressal of genuine public

wrong or public injury and not be publicity-oriented or founded on personal

vendetta. It has to be used with great care and circumspection. The Court must

be satisfied about (a) the credentials of the applicant; (b) the prima facie

correctness or nature of information given by him; and (c) the information being

not vague and indefinite. The Court has to be extremely careful to see that, under

the guise of redressing a public grievance, it does not encroach upon the sphere

reserved by the Constitution to the Executive and the Legislature. The Court must

ensure that a member of the public, who approaches the Court, is acting bonafide

and not for personal gain or private/political motive or other oblique

considerations. The petitions of busybodies deserve to be thrown out at the

threshold and, in appropriate cases, with exemplary costs. (Dattaraj Nathuji

Thaware5).

On the question of locus-standi, it needs to be noted that the petitioner, a

practising Advocate, has invoked this Court’s jurisdiction questioning the action of

the first respondent in not according sanction to the 2nd respondent to prosecute

the 4th respondent for offences punishable under Section 13(1)(e) read with

Section 13(2) of the Prevention of Corruption Act, 1988.

The petitioner herein, in an affidavit filed before this Court, has furnished his

enrolment number. We see no reason, therefore, to suspect that he is not a

practicing advocate. The petitioner has stated that the service rivalry between the

4th respondent and Sri B.V. Rami Reddy are not within his personal knowledge; he

was not at all concerned with the same; he was not connected with either Sri B.V.

Rami Reddy or any other person in the police department; and he did not know

them at all. He would deny the allegation that he was used as a tool, by persons

inimical to 4th respondent, to file this writ petition. He would submit that these

allegations leveled against him were false, frivolous and invented by the 4th

respondent for the purpose of this Writ Petition. We see no reason either to doubt

the petitioner’s bonafides or to be persuaded that the petitioner had been set up by

Sri B.V. Rami Reddy, or any other officer of the police department, to create

problems for the 4th respondent.

There is no material on record even to create a suspicion, let alone

establish, that the petitioner was acting for extraneous reasons and not in public

interest. Even otherwise if any other member of the public, to whom the conduct

alleged against the petitioner in the present case could not be attributed, can file

such a writ petition for the same relief, this disability would not attach to him. The

relief claimed by the petitioner being in the nature of a class action, without

seeking any relief personal to him, ought not to be dismissed merely on the

ground of lack of standing since this is a matter of public concern and relates to

the good governance of the State itself. (Dr. Kashinath G. Jalmi v. The

Speaker[26]).

Even in cases, where the petitioner may have moved the Court for

redressal of personal grievances, the Court, in the interest of justice and in

furtherance of public interest, may enquire into the state of affairs of the subject

matter of litigation. (Shivajirao Nilangekar Patil v. Dr Mahesh Madhav

Gosavi[27]; Guruvayoor Devaswom Managing Committee v. C.K. Rajan[28];

Indian Banks' Assn. v. Devkala Consultancy Service[29]).

The contents of impugned orders, under challenge in the writ petition, are

not in dispute. It is not even the 4th respondent’s case that the ACB report, relied

on by the petitioner, is false or fabricated. The information furnished by the

petitioner regarding the sanction order, or events preceding thereto, are also

admitted to be true.

The subject matter of challenge in this writ petition is the order of the

Government directing initiation of disciplinary proceedings instead of according

sanction to prosecute the 4th respondent. One of the guiding principles for the

sanctioning authority would be the public interest (Krishanchand Khushalchand

Jagtiani12; Mansukhlal Vithaldas Chauhan4) . The authority which has been

conferred the power to grant or refuse sanction is expected to act consistent with

public interest and the interest of law — both of which demand that, while a public

servant be not subjected to harassment, genuine charges and allegations should

be allowed to be examined by the Courts. Both the considerations aforesaid

should be present in the mind of the authority while deciding the question of grant

of previous sanction. (R.S. Nayak9; Krishanchand Khushalchand Jagtiani12).

Even if there were several other cases, involving amassing of wealth far in

excess of known sources of income, where sanction has not been accorded by

the Government that would not render the present writ petition devoid of public

interest. While all those indulging in acts of corruption must also be severely

dealt with, failure of the Government to do so would not justify this Court refusing

to entertain a writ petition questioning the action of the Government in not

according sanction for prosecution in a particular case. Unlike in D. Siva

Prasad6, the present writ petition, filed by a practicing Advocate, is in larger

public interest.

The admonition of the Supreme Court, in Dattaraj Nathuji Thaware5 that

the Bar Council and Bar Associations should ensure that no member of the Bar

abets the filing of frivolous petitions carrying the attractive brand name of PIL, and

that no one should be permitted to bring disgrace to the noble profession has no

application to the case on hand since the petitioner’s complaint is failure of public

duty on the part of the sanctioning authority to apply its his mind to the facts of the

case and in not examining whether a prima facie case for sanction of prosecution,

under Section 19 of the Prevention of Corruption of Act, 1998, has been made out

from the report of the Anti-Corruption Bureau and its enclosures.

As an order of sanction lifts the bar for prosecution, mechanical refusal to

grant sanction could well result in a corrupt officer being let off scot-free. 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[30]).

India which was ranked 72nd in the year 2007, in the Corruption Perception

Index (CPI), on the basis of a survey carried out by Transparency International,

has in the year 2009 been ranked higher at 84 from out of the 180 surveyed

nations. India’s integrity score, a major component of the survey, stands at 3.4

out of the highest score of 10 which indicates that the country has a long way to

go in eradicating corruption. A country with a higher score from out of 10 is

considered to be less corrupt. India’s rank has been calculated by collecting date

from 13 sources, all of which measure the overall extent of corruption by gauging

the frequency and size of bribes in public and political sectors. (Business

Standard, February 6th 2010).

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[31]).

Refusal to accord sanction, where a prima facie of corruption is made out,

would encourage others to indulge in similar acts. A challenge to the order

refusing to accord sanction for prosecution under the Prevention of Corruption

Act, 1988 should not be lightly brushed aside. This Court would be failing in its

duty if it were to turn a blind eye to the ever increasing acts of corruption by public

officials. Courts would not easily accept the submission that it should not

entertain a writ petition, filed in public interest, questioning the failure of the

Government to accord sanction to prosecute officials alleged to possess assets

far disproportionate to their known sources of income. In a public interest

litigation, filed regarding acquisition of alleged wealth, it would be wrong in law for

the Court to judge the petitioner’s interest without looking into the subject-matter

of his complaint and, if the petitioner shows failure of public duty, the Court would

be in error in dismissing the PIL. (Vishwanath Chaturvedi24).

We see no reason to non-suit the petitioner on this ground.

DOES CLOSURE OF CR. NO.8/ACB-CIU-HYD/2006 NECESSITATE THEIMPUGNED PROCEEDINGS BEING UPHELD?

Both the learned Additional Advocate General, and Sri P. Gangaiah Naidu

Learned Senior Counsel, would submit that no useful purpose would now be

served in examining the validity of G.O.Ms. No.25 Home (SC.A) Dept, dated

15.01.2009 as the F.I.R. in Cr. No.8 of 2006 was subsequently closed.

A final report was filed in the Court of the Principal Special Judge for SPE &

ACB Cases, Hyderabad on 16.07.2009 requesting that, in view of G.O.Ms. No.25

dated 15.01.2009, the 1st respondent’s memo dated 29.04.2009, the 2nd

respondent’s memo dated 12.05.2009 instructing the investigating officer to submit

draft charges in respect of allegations of disproportionate assets and violation of

conduct rules by the accused officer, orders be issued for closure of the F.I.R.

and return of the seized records and documents. A copy of G.O.Ms. No.25, dated

15.01.2009 and Memo No. 204 dated 12.05.2009 were enclosed thereto.

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, noted that a

memo was filed seeking closure of the F.I.R. in Crime No.8 to enable

departmental proceedings to be initiated against the accused as directed by the

1st respondent in G.O.Ms. No.25 dated 15.01.2009. The Learned Judge heard the

Special Public Prosecutor and, after perusing the final report and G.O.Ms. No.25

dated 15.01.2009 issued by the 1st respondent, observed that having regard to the

intention of the Government not to prosecute the 4th respondent for being in

possession of disproportionate assets, and as it intended to initiate departmental

action, the final report was being accepted and the F.I.R. was being closed. The

Learned Judge directed the seized records to be returned to the investigating

officer.

It is evident that Cr. No.8 of 2006 was directed to be closed, by the Learned

Principal Special Judge for SPE & ACB Cases, Hyderabad by his order dated

31.07.2009, on the ground that the Government had refused to accord sanction

and that it intended to initiate disciplinary proceedings. Now that the impugned

order, impliedly refusing to accord sanction, is quashed the Government must

examine the request for sanction afresh, in the light of the report of the ACB and

its enclosures, and take a considered decision whether or not to accord sanction

for prosecution of the 4th respondent. We consider it wholly inappropriate to

adjudicate on the effect of the subsequent order of closure of Cr. No.8 of 2006 on

the prior order in G.O.Ms. No.25 dated 15.01.2009, as the question regarding the

consequences of the competent authority passing an order afresh

according/refusing sanction is, as at present, hypothetical.

Viewed from any angle the impugned G.O and the Memo

No.1843/SC.A/A1/2006-11 dated 29.04.2009 must be, and are accordingly,

quashed. The 1st respondent shall examine the Anti-corruption Bureau’s request

for sanction afresh and take a decision whether or not to accord sanction for

prosecution of the 4th respondent under the provisions of the Prevention of

Corruption Act, 1988. The entire exercise in this regard, culminating in an order

being passed afresh, shall be completed within a period of three months from the

date of receipt of a copy of this order.

The Writ Petition is allowed. However, in the circumstances, without costs.

______________________GODA RAGHURAM,J

Date: 26 .02.2010

____________________________ RAMESH RANGANATHAN,JMRKR/ASP

L.R. copy to be markedB/oAsp/mrkr

[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[13] AIR 2004 SC 517[14] AIR 1979 SC 677[15] (2007) 11 SCC 273[16] 2000(4) ALD 665[17] AIR 1995 SC 785[18] 1992 Suppl (1) SCC 222[19] AIR 1973 SC 2131[20] 75 Ind App 30 = AIR 1948 PC 82[21] (2004) 4 SCC 615[22] 2006(4) Crimes 278[23] (1997) 8 SCC 73

[24] (2007) 4 SCC 380[25] (1991) 4 SCC 54[26] 1993(2) SCC 703[27] 1987(1) SCC 227[28] (2003) 7 SCC 546 [29] (2004) 11 SCC 1[30] (2001) 6 SCC 584[31] (1998) 1 SCC 226