Valid Prosecution Sanction For Corruption Case Can't Be Withdrawn In Absence Of New Material Warranting Review: AP High Court
The Andhra Pradesh High Court has held that a valid prosecution sanction under the Prevention of Corruption Act, 1988 cannot be withdrawn once it has been acted upon and criminal proceedings have commenced and that only fresh material can warrant such reconsideration.
The Court accordingly dismissed a challenge by a retired Executive Engineer in the Municipal Administration and Urban Development Department to the revival of prosecution sanction against him in a disproportionate assets case under the 1988 Act.
Section 19 of the Prevention of Corruption Act, 1988 requires prior sanction of the competent authority before a Court can take cognizance of specified offences against a public servant.
A Single Judge Bench of Justice Balaji Medamalli was dealing with a challenge to G.O.Rt. No. 763 dated October 3, 2024, by which the Government cancelled its earlier order withdrawing the prosecution sanction against the petitioner.
The Court observed:
“...once the criminal prosecution has been set in motion pursuant to a valid sanction, the authorities cannot withdraw the sanction by invoking their power of review in the absence of any new material warranting such reconsideration. In the present case, it is not the case of the prosecution that certain new material came to light after the grant of sanction or after filing of the charge sheet, which warranted withdrawal of the sanction. The recommendation for withdrawal was made on the basis of the same material that had already been considered while granting the sanction. The question as to whether the disproportionate assets of petitioner exceeded or were less than 20% of his known sources of income is a matter that can be considered by the competent criminal Court during the trial. Petitioner has an opportunity to raise all his contentions in this regard before the said Court. Therefore, the said issue cannot be made a ground for withdrawing the sanction after the criminal prosecution has already been set in motion.”
The case concerned a retired Executive Engineer, who had joined the Municipal Administration and Urban Development Department in 1977 and retired in 2017.
In 2010, the Anti-Corruption Bureau (ACB) registered a case alleging that he possessed assets disproportionate to his known sources of income. The investigation was followed by filing of a charge sheet before the Special Court for ACB cases at Visakhapatnam.
The Government had initially granted sanction for prosecution through G.O.Ms. No. 200 dated September 20, 2014. The criminal proceedings thereafter remained pending before the Special Court.
The petitioner subsequently through multiple representations contended that several legitimate sources of income and other relevant material had not been properly considered while calculating the alleged disproportionate assets. According to him, a proper calculation would show that the alleged disproportionate assets were within the permissible 20% variation prescribed under a 2008 Government Memo.
The petitioner therefore sought reconsideration of the matter and withdrawal of the prosecution sanction.
Upon examining the material and documentary evidence, the Government found that certain income and other relevant factors had not been properly considered and that the alleged disproportionate assets were within the permissible range.
Consequently, the Government withdrew the earlier prosecution sanction issued under G.O.Ms. No. 200 by issuing G.O.Ms. No. 63 dated May 16, 2024.
Thereafter, the Director General, ACB, addressed a letter, advising the Government to reconsider the withdrawal. The ACB pointed out that the sanction had already been acted upon, a charge sheet had been filed and the competent Court had taken cognizance of the offence.
Upon considering the ACB's advice and the legal position, the Government issued G.O.Rt. No. 763 dated October 3, 2024, cancelling G.O.Ms. No. 63 and thereby restoring the earlier prosecution sanction.
The petitioner challenged this decision, contending that the Government had relied upon the same material that had already been considered while withdrawing the sanction. He argued that there was no fresh material warranting reconsideration and that the subsequent decision amounted to a change of opinion.
The Court considered the law relating to reconsideration of prosecution sanction and noted that a mere change of opinion on the same material cannot constitute a valid ground for reviewing an earlier decision.
However, fresh material may warrant reconsideration.
The Court further observed:
Though Section 19 of the Prevention of Corruption Act, 1988, is intended to protect public servants from unnecessary or vexatious prosecution, in the present case, the Government had considered the material available on record and, upon being satisfied that there are sufficient grounds to proceed against the petitioner, had granted sanction for prosecution. In absence of any new material, subsequent withdrawal of such sanction on the basis of very same material cannot be sustained. Therefore, the withdrawal of sanction under G.O.Ms.No.63, without there being any new material warranting such reconsideration, cannot be countenanced. Respondent No.2, having subsequently brought the relevant material and the applicable judicial pronouncements to the notice of the Government, rightly sought reconsideration of the decision taken under G.O.Ms. No.63. Upon consideration of the said report, the Government issued the impugned order withdrawing the earlier decision to withdraw the sanction and thereby allowing the criminal prosecution to proceed in accordance with law.”
The Court observed that the question as to whether the disproportionate assets of the petitioner exceeded or were less than 20% of his known sources of income was a matter that could be considered by the competent criminal Court during the trial.
The petitioner would have an opportunity to raise all his contentions in this regard before the criminal Court.
Finding no illegality or infirmity in the impugned order, the Court dismissed the writ petition.
Case Title: Metta Appana v. The State of Andhra Pradesh and Others
Case No.: W.P.No.25988 of 2024
Counsel for Petitioner: V.V. Satish
Counsel for Respondents: S. Syam Sunder Rao, SPP for ACB & Sameera Bokka, Assistant Government Pleader