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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M.NAGAPRASANNA, J.
Smt. Shreeroopa, D/o Late G Thimma Naik – Appellant
Versus
The State Of Karnataka, Represented By The Principal Secretary, Department Of Public Administration And Reforms (DPAR) – Respondent
Writ Petition No. 8905 of 2022 (S-RES) C/W Writ Petition No.9183 of 2022
Decided on : 13-07-2022
Prevention of Corruption Act, 1988 – Section 17A – Enquiry or inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties - Whether this act of approval would stand scrutiny of law is what is to be considered at this juncture - Whether approval is sought for an enquiry, inquiry or an investigation - If enquiry into circumstances in which alleged administrative or official act was done by public servant or where malfeasance committed by public servant which would involve an element of dishonesty or impropriety is to be proceeded against, approval of competent authority is required(Para 22).
Finding of the Court: Section 17A and its purport must be observed with complete strictness bearing in mind public interest and protection available to such officers, against whom offences are alleged, failing which many a time it would result in a malicious prosecution. Section 17A is clearly a filter that prosecution must pass in order to discourage or avoid vexatious prosecution, though cannot be considered as a protective shield for guilty, but a safeguard for innocent.
Result: Writ Petition is allowed-in-part.
ORDER
In W.P.No.8905/2022:
The petitioner is before this Court calling in question an order dated 21.04.2022 passed by respondent No.1 according approval for conduct of investigation against the petitioner for the alleged offences punishable under the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the said Act' for short).
2. Heard the learned Senior counsel, Sri. D.R. Ravi Shankar appearing for the petitioner, Smt. Shilpa S. Gogi, learned HCGP appearing for respondent Nos.1 and 2, Sri. B.S. Sachin, learned counsel appearing for respondent No.3 and Sri. P.N. Manmohan, learned counsel appearing for respondent No.4.
3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:
The petitioner is an officer of the Karnataka Administrative Service having joined the service in the year 1999 and has since then been promoted to higher echelons of office. At the relevant point in time, the petitioner was holding the post of Deputy Secretary-2 in the Bangalore Development Authority (hereinafter referred to as 'the BDA' for short). It is this that tenure of the petitioner that forms the gravamen in the lis.
4. The issue in the lis dates back to 05.10.2007 when the BDA decided to accede to the request of the members of the Scheduled Caste/Scheduled Tribes, Government for allotment of sites to totaling 46 sites, to 46 members measuring 20 x 30 feet. The list of beneficiaries, who was also included in the Government order dated 05.10.2007. In the said Government order, the name of one Hanumamma was found at Sl.No.36 to be one of the prospective allottees in terms of the decision of the Government to allot sites of the aforesaid dimension to 46 people. The communication of the Government dated 05.10.2007 is placed before the BDA and the Board resolves on 20.03.2008 in its resolution No.385/2008 to accept the Government Order dated 05.10.2007 and allot 46 sites to 46 members belonging to Scheduled Caste/Scheduled Tribes. This was accepting the agenda that was placed before the Board in resolution No.385/2008.
5. Pursuant to the said resolution, the sites were sought to be allotted on 18.07.2008. Here again, the name of Hanumamma is found at Sl.No.36. Several proceedings were drawn pursuant to the said resolution and decision emerges to allot the sites. The note sheets that are appended to the petition also notices the fact the amount of Rs.59,038/-paid by Hanumamma and like towards the allotment sought to be made by the BDA. It is after all these proceedings, an allotment letter is issued in favor of Hanumamma on 02.08.2008, by the BDA.
6. During the afore-quoted proceedings, the petitioner was not in the BDA. The petitioner, on transfer as Deputy Secretary-2, joins the BDA in the month of March 2009 and on the basis of afore-quoted proceedings, executes a lease-cum-sale agreement in favor of Hanumamma on 26.06.2009. After 26.06.2009, what transpires is, astounding silence. Later in the year 2021, complaint in the name of one M. Narayanaswamy is received by the BDA, alleging that the sale deed that was executed in furtherance of the agreement to sell, was a fraud played by Hanumamma as the allotment of the property has been made to 4 members of a single family.
7. Based upon the said complaint, the Anti Corruption Bureau (hereinafter referred to as 'the ACB' for short) writes to the Government on 26.11.2021 seeking approval to conduct, inquiry, enquiry or investigation as obtaining under Section 17A of the said Act. The communication that was sent from the ACB to the Government was forwarded to the Commissioner, BDA seeking his opinion about the communication of the ACB for approval under Section 17A of the said Act. The Commissioner, BDA unequivocally declines the said permission sought on the ground that the allotment was in terms of the resolutions of the BDA. This communication was forwarded to the State and the competent authority accords approval/permission on 21.04.2022 on the gr
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