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2017 DIGILAW 795 (KAR)

MANGALA SHRIDHAR v. STATE OF KARNATAKA

2017-04-25

ANAND BYPAREDDY

body2017
ORDER : ANAND BYPAREDDY, J. 1. Heard the learned Senior Advocate Shri P.S. Rajagopal appearing for the counsel for the petitioner and the learned Additional State Public Prosecutor Sri Sandesh J. Chouta appearing for the State. 2. The brief facts are that the appellant was appointed as a Member of Karnataka Public Service Commission in the year 2012. It transpires that a first information report was lodged by the Deputy Secretary to Government before the Vidhana Soudha police station, Bengaluru on 22.06.2013 and again on 25.06.2013, after obtaining a legal opinion, the police have registered a case in Crime No.28/2013 for offences punishable under Sections 120-B, 418, 420, 465 read with Section 34 of the Prevention of Corruption Act, 1988 against the then Chairman of the Karnataka Public Services Commission and others including the present petitioner. A case was thereafter said to have been transferred to the C.I.D. for investigation. The C.I.D. in turn after a detail investigation filed a final report which was placed before the Governor for its prior sanction to prosecute the petitioner. Pursuant to which the Governor is said to have issued an order that the State may proceed in accordance with law. This was taken as grant of sanction. It transpires that the Governor in turn had granted a sanction to prosecute the petitioner, the court below has then taken cognizance and had issued process to the petitioner. It is in that background that the petitioner is before this Court. 3. The primary ground urged is that having regard to the possession which the petitioner occupied, the Governor of the State was not the competent authority to grant sanction and it is the power vested with the President of India in terms of Article 317 of the Constitution of India and apart from this other grounds are raised but on this ground alone the petition would have to be allowed. 4. One other circumstance that is highlighted is that in the course of the proceedings since there were several accused in the case and some of whom were not public servants against whom no sanction was necessary the court has proceeded to take cognizance of the offences against those accused in installments namely as on 7.7.2014 as against accused Nos.6 and 7, on 16.8.2014 as against accused No.2, on 4.2.2017 as against accused Nos.1, 2, 5 and 8. Since this court has already opined that such taking of cognizance in installments is not the correct procedure and that cognizance can be taken in respect of the offences alleged against the accused only once and if there are several accused against some of whom sanction for prosecution may be necessary, it is mandatory that such sanction be awaited till such time cognizance is awaited or otherwise it would lead to confused state of affairs which is impermissible. Consequently, on both these grounds and in so far as the possession as to whether that sanction for prosecution for the present petitioner could be granted only by the President of India would no longer res integra as the State has conceded this position. Therefore, on both grounds namely that the sanction for prosecution granted in the case of the present petitioner is invalid and nonest and secondly that cognizance of the offence could not have been taken in installments, the petition is allowed. The cognizance taken in the several instances as referred to herein above stands quashed. Liberty is however reserved to the State to proceed further in accordance with law after obtaining the necessary sanction against the petitioner. It is further directed that the charge sheet papers be returned by the court below to the Investigating Agency who shall thereupon proceed in accordance with law.