B SHIVARUDRASWAMY Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) A charge-sheet came to be filed against the petitioner herein for offences punishable under Section 13 (l) (d) r/w 13 (2)of the Prevention of Corruption Act, 1988 after the prosecuting agency obtained a fresh sanction order dated 6-10-2000 bearing No. 826/99 where under the competent authority had accorded sanction to prosecute the petitioner for the aforesaid offences. The trial court took cognizance of offences and directed issue of process as against the petitioner herein. The petitioner put in appearance and filed an application for discharge on 17-1-2005. He contended that the competent sanctioning authority earlier in terms of order bearing No. dated 28-6-1999, on going through the prosecution papers and on being satisfied that there was no case made out had declined to accord sanction; and subsequently thereto an order also came to be passed by one Mr. N. R. Jagannath who was the then Under Secretary to government, as at Annexure-D, revoking the order of suspension and directing reinstatement of the petitioner with all consequential benefits which were withheld pursuant to the suspension order; that thereafter, almost after a period of one year two months, a fresh order came to be passed by Mr. N. R. Jagannath, according sanction to prosecute the petitioner on the request made by the additional Director General of Police, Police Wing, karnataka Lokayukta by letter dated 9-12-1999, and that the subsequent order passed by the Government amounts to review of its earlier order for which the Government has no power. The trial Court rejected his claim for discharge and observed that if the petitioner still feels that the order according fresh sanction is bad in law, he could approach the appropriate forum challenging the validity of the same. Hence the present revision petition.

(2.) ACCORDING to the learned counsel for the petitioner, when once the Government had declined to accord sanction to prosecute the petitioner, it could not have accorded sanction to prosecute him at a later point of time, as the Government has no power to review its own order. In support of his contention leamed counsel for the petitioner relies on a decision of the Andhra Pradesh High Court in the case of m. Veeraiah Chowdary v. State of Andhra pradesh reported in 2003 (5) Indian Law decisions H. C. Reports, 71: (2003 Cri LJ 1896), wherein the Court has held that it is not permissible for the State Government to withdraw sanction order as it has no power to review its own order. He also relies upon a judgment of the punjab and Haryana High Court in the case of Dr. Jaswinder Kaur v. State of Punjab reported in 2002 (1) Current Criminal Reports 187, wherein the said Court has held that once the competent authority refuses to grant sanction, it becomes Functus Officio and it cannot review its own order. He further relies on the judgment of the supreme Court in the case of Parkash Singh badal v. State of Punjab reported in 2007 (1)Kar LJ 497 : (AIR 2007 SC 1274) wherein it is held that validity of sanction can be challenged at the time of trial.

(3.) PER contra, learned counsel appearing for the respondent submits that the order passed by the trial Court rejecting the application for discharge cannot be interfered with as it is passed on a ground pertaining to validity of sanction. The trial Court had already taken cognizance and as such it could not have entertained the application for discharge and review its own order of having taken cognizance and that the said order cannot be interfered with in view of Sec. 19 (3) of the Prevention of corruption Act, 1947 which reads as under : 19 (3 ). Notwithstanding anything contained in the Code of Criminal Procedure, 1973 :-