ORDER
Huluvadi G. Ramesh, J.
1. The petitioner has sought for setting aside the order passed by the Special (Principal Sessions) Judge, Belgaum in Special Case No. 15 of 1998, dated 31-8-2004 in dismissing the application filed by the petitioner under Section 239 of the Cr. P.C. seeking for the discharge on the ground of invalid sanction.
2. Heard the learned Counsel for the petitioner and the learned State Public Prosecutor and Government Pleader on the point.
3. The facts which are necessary for disposal of the case is that the complainant-Anthony Fernandes is a businessman and is a resident of camp in Belgaum town. He has filed the complaint against this petitioner stating about 5-6 months prior to filing of the complaint, he had secured a tender for supplying desks worth Rs. 30 lakhs under D.P.E.P. Scheme from the Deputy Director of Public Instruction, Belgaum. He has supplied desks worth Rs. 15 lakhs and he received the payment. Subsequently, he supplied desks worth Rs. 10-12 lakhs and submitted a bill for payment and he also supplied remaining desks worth Rs. 3,50,000/-. He supplied these desks through his firm name ‘Johnson Handicraft’. It is alleged that this petitioner-accused who is a Accounts Officer working in the said office, was insisting the complainant for payment of bribe amount and with great difficulty he got it cleared Rs. 15 lakhs and for the remaining amount when the bill was submitted, the accused demanded bribe of Rs. 50,000/-. Thereafter, the complaint was filed before the Lokayuktha Police. The Lokayuktha Police laid a trap and the trap was successful. Thereafter, after completion of the investigation, the charge-sheet was filed.
4. For showing official favour for the remaining bill, this petitioner said to have demanded the amount of Rs. 50,000/- as bribe. Thereafter, the accused was charge-sheeted for the offences under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Thereafter, he filed the application under Section 239 of the Cr. P.C. seeking for the discharge on the ground of invalid sanction.
5. It is the submission of the learned Counsel for the petitioner herein that the Under Secretary is not a competent person to accord sanction and there is clear violation of provisions of the Prevention of Corruption Act and as such, the accused is entitled for discharge. Accordingly, in support of his argument, he also invited the attention of this Court to the rulings referred before the Sessions Court and he also tried to contend that the sanction in question has been issued by the Under Secretary to the Government of Karnataka, Finance Department and he has not been vested with powers to accord sanction to prosecute him and therefore, the sanction is bad in law and submitted that the impugned order is liable to be set aside and the accused be exonerated.
6. The learned State Public Prosecutor submitted that by virtue of the order of the Government, after perusal of the materials placed before the Government, the Government has accorded sanction. Under the rules of business transaction, he is competent to issue the sanction order wherein the Government has already accorded sanction and submitted that there is no illegality in the order of sanction issued by the Under Secretary.
7. It is seen that as per the sanction order, the Under Secretary to Government, Finance Department, has issued the sanction order and in the order, above his signature, it is mentioned as ‘by order and in the name of Governor of Karnataka’. In the preceding paragraph, it is mentioned that the matter was placed before the Government and it appears that the entire file including the prosecution papers, FIR and FSL reports, were placed before the Government and the Government is shown to have looked into the same and accorded sanction and it is the doubt expressed by the learned Counsel for the petitioner that which authority has perused the papers and accorded the sanction. The same is not clear i.e., whether the Governor or the Government or any other appointing authority etc.
8. In the proceedings of the Government of Karnataka, the Under Secretary has referred to the Government Order of the Finance Department and also referred to various other orders of the Government. It is stated in the said proceedings that issuance of the order by the Under Secretary is in the name of Governor and by order and all the materials are said to have been placed before the concerned authority and who after perusal of the same said to have formed an opinion that the accused should be prosecuted. Mere non-production of Governmental proceedings by the Under Secretary, may not vitiate the issuance of the sanction order. There is specific reference in the Government proceedings signed by the Under Secretary and if necessary to clarify the position, the accused may insist on production of the same during trial and ultimately if it is found that the Government/appointing authority has not applied its mind in according sanction in accordance with law, that would be the subject-matter to hold either way as to whether the sanction is in accordance with law or not. The role of the Under Secretary although is in the equal cadre as that of the accused herein, the Under Secretary is not a sanctioning authority, rather he acted as issuing authority of the sanction order as it is ordered by the Government and also these are all the formalities as provided under the transaction of business rules and the rules of the Government. Accordingly, the sanction order has been issued by the Under Secretary to the Government, Finance Department. As rightly observed by the learned Sessions Judge, it is a matter for evidence and during trial, if necessary for the satisfaction of the accused, the accused may insist on production of such Government orders to know whether the sanction order is in accordance with law or not. In view of the same, I do not find any merits in the contention of the learned Counsel for the petitioner. The petition is devoid of merits and it is dismissed accordingly. However, it is open to the petitioner to seek production of such Government order at the time of trial to know whether the Government/appointing authority has passed the order in accordance with law as per Section 19 of the Prevention of Corruption Act.