STATE OF KARNATAKA Vs. GANGAYYA VEERAYYA GADIGEPPANAVAR

JUDGEMENT

(1.) THOUGH this criminal appeal has been listed for orders on the ground that there is an office objection since it relates only to the filing of the certified copy, we have waived the objection and we have heard the learned Govt. Pleader on merits.

(2.) THIS case Involves a clear point of law because, the accused at the relevant time was the Secretary of a Co-operative Society and even though the trial Court convicted him for criminal breach of trust and falsification of accounts, the appeal Court set aside the conviction on the ground that the requisite sanction under Section 111 of the co-operative Societies Act had not been obtained. While doing so, the appeal Court has relied on a recent Division Bench decision of this Court in case of State P. S. I. (I and 0), athanl Police Station v. Pundalik Annappa garage reported in (2002) 4 Kant LJ 409 wherein the Division Bench of this Court has very clearly held that Section 111 mandates the grant of sanction for prosecution under the Co-operative Societies Act and that if this mandatory precondition is breached, that the prosecution is vitiated.

(3.) THE submission canvassed by the learned Govt. Pleader is that the auditor had found certain lapses on the part of the accused which were reported and that pursuant to this, the Registrar had directed a prosecution. His submission is that this action must be construed as sanction irrespective of whether the specific formal terms were used or not and that there is substantial compliance of Section 111. Normally, we might have considered this argument but it is not possible to do so because, Section 111 mandates that before sanction is accorded, the accused must be given an opportunity of being confronted with the charges against him and of tendering an explanation if the authority is satisfied that the accused has acted in good faith, that the sanction shall not be granted. There is a reason why this procedure has got to be followed because this Court has come across situations in which auditors have recklessly given findings against office bearers and employees and after a lengthy trial, the Court has found that those findings were unjustified. Since the consequences of a prosecution are extremely serious, the law mandates that a proper enquiry following the rules of natural justice be held prior to the grant of sanction and in our considered view, this is a mandatory safety provision from the point of view of the accused, but it is of equal importance to the department and the society in order to avoid unnecessary legal proceedings. There can be no second opinion about the fact that if this mandatory pre-condition is not followed that the prosecution will be vitiated and to this extent, the appeal court was justified in setting aside the conviction.