Kerala High Court
Sudhakaran vs State Of Kerala on 30 January, 2006
Equivalent citations: 2006(1)KLT955
Author: K. Padmanabhan Nair
Bench: K. Padmanabhan Nair
ORDER K. Padmanabhan Nair, J.
1. The second accused in C.C.No. 43/03 on the file of Enquiry Commissioner and Special Judge, Kozhikode is the revision petitioner in both these Criminal Revision Petitions. Crl.R.P.223/06 is filed challenging an order passed by the learned Judge rejecting the prayer of the accused in the above said case to discharge them under Section 227 of the Code of Criminal Procedure. Crl.R.P.226/06 is filed challenging an order passed by the Special Judge dismissing Crl.M.P.No. 71/05 filed by the Additional Legal Advisor under Section 321 of Cr.P.C., seeking consent to withdraw from the prosecution as against the petitioner.
2. C.C.No. 43/03 arises from Crime No. VC 2/97/KNR registered under Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 and under Section 120B of Indian Penal Code by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Kannur Unit.
3. The petitioner is a member of Indian Administrative Service which is governed by the provisions of All India Service Act, 1951 and the Rules framed thereunder. He is now working as Chief Tribal Re-settlement and Development Officer. During 1991-92 the petitioner was working as the Secretary, Board of Revenue (Land Revenue) and held additional charge of Secretary, Excise (Board of Revenue) for a short period. A criminal case was registered against the petitioner and 7 others including the then Minister for Excise Shri M.R. Raghuchandrabal alleging that on 9.12.1991 the accused entered into a criminal conspiracy at the chamber of the Minister. It was alleged that all the accused including the petitioner conspired together to appoint 151 persons whose names were included in the rank list published by the Kerala Public Service Commission for appointment as Excise Guards at Kannur District. Those persons were illegally appointed in violation of the rules and norms issued by the Government of Kerala for making illegal gains to them. Those 151 persons including A4 to A8 also stated to have gained undue pecuniary advantages. The accused 1 to 3 who were public servants committed criminal misconduct by abetting each other to create 151 vacancies of Excise Guards in Kannur District, though, in fact, no such vacancies existed. The persons so appointed were transferred out to other districts in violation of the prescribed norms and thereby committed the offences punishable under Sections 13(2) read with 13(1)(f) of the P.C. Act, 1988 and Section 120B of Indian Penal Code. In the final report it is admitted that the Government of India refused to grant sanction to prosecute the petitioner for the offence punishable under the provisions of Prevention of Corruption Act. The petitioner was charge sheeted for the offence punishable under Section 120B IPC alone.
4. The State Government accorded, sanction as per order G.O.(MS) No. 100/99/ Vig. dated 1.11.1999. According to the petitioner, though the State Government originally accorded sanction to prosecute him for the offence under the P.C. Act, subsequently the State Government addressed the Central Government to accord sanction under Section 19(1) of the P.C.Act to prosecute him for the offence under P.C. Act since the petitioner is a member of Indian Administrative Service appointed by the Government of India. The Union of India consulted the Chief Vigilance Commissioner, Department of Legal Affairs and also sought the opinion of the Attorney General and placed the entire file before the Competent Authority. In view of the opinion expressed by the Chief Vigilance Commissioner and learned Attorney General, the Competent Authority came to the conclusion that no prima facie case has been made against the petitioner and accordingly rejected the sanction sought for under Section 19 of the P.C.Act. On receipt of that Advocate General who opined that no prosecution will lie against the petitioner for the offence under Section 120B of Indian Penal Code alone. In the meanwhile, Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau filed the final report before the Enquiry Commissioner and Special Judge, Kozhikode. The learned Special Judge took cognizance and numbered the case as C.C.No. 43/03. The State Government has considered the entire matter and decided that there is no justification for proceeding with the case against the petitioner. The Government directed the Director, Vigilance and Anti Corruption Bureau, Thiruvananthapuram, to file a petition under Section 321 Cr.P.C. to withdraw from the prosecution. The Director of Vigilance and Anti Corruption Bureau instructed the Deputy Superintendent of Police to file a report before the court to withdraw from the prosecution. The Additional Legal Advisor, Vigilance and Anti Corruption Bureau, Kozhikode filed Crl.M.P.No. 71/05 under Section 321 of Cr.P.C. praying that necessary orders may be passed to give consent for withdrawal from the prosecution so far as the petitioner alone is concerned. The Additional Legal Advisor filed an affidavit stating that he had examined the entire case records and satisfied that there is no convincing evidence against the petitioner to warrant a conviction of an offence under Section 120B of IPC. So he filed the petition under Section 321 of the Code of Criminal Procedure seeking permission to withdraw from prosecution.
5. The petitioner along with other accused pleaded for discharge under Section 227 of the Code of Criminal Procedure contending that there is no sufficient ground for proceeding against them. It was contended that there are no incriminating materials to frame charge against the petitioner.
6. The learned Special Judge dismissed Crl.M.P.71/05 filed by the Additional Legal Advisor seeking consent to withdraw from the prosecution so far as the petitioner alone is concerned. Crl.R.P. 226/06 is filed challenging that order.
7. The learned Special Judge also rejected the prayer of the accused for discharge and framed charge against all accused persons including the petitioner for the offences punishable under Section 120B of Indian Penal Code and Section 13(1) read with Section 13(1)(d) of the P.C.Act. The charges were read over and explained to the accused. They understood the same and pleaded not guilty. Crl.R.P. 223/06 is filed challenging that order passed under Section 227 of the Code of Criminal Procedure by which it was held that there are materials to proceed against the accused. Since these two Criminal Revision Petitions arise from two orders passed in the same case, these two Criminal Revision Petitions are heard and disposed of by a common order.
8. The allegation levelled against the petitioner was that on 9.12.1991, he along with other accused hatched a criminal conspiracy in the chamber of the then Minister and as a result of that conspiracy, 151 candidates including A4 to A8 who had figured in the ranked list published by the Kerala Public Service Commission for appointment of Excise Guards for Kannur District were appointed illegally in violation of the prescribed rules and norms issued by the Government of Kerala. The further prosecution case was that accused 1 to 3 who are public servants committed criminal misconduct by abetting each other to create 151 vacancies of Excise Guards at Kannur district while no such vacancies actually existed. The further case was that after appointing the 151 persons, they were transferred to other districts in violation of the norms and rules and thereby committed offences punishable under Section 13(2) and 13(1)(d) of the P.C.Act.
9. It is argued that the definite prosecution case is that the petitioner and others conspired together to commit an offence under the P.C.Act and in view of the order of the Central Government declining sanction to prosecute the petitioner for the offence punishable under the provisions of the PC. Act, the charge under Section 120B IPC can have no independent existence. It is submitted that was not the only reason why the Additional Legal Advisor, Vigilance and Ami Corruption Bureau sought permission to withdraw from the prosecution. It is argued that the Learned Special Judge was under a mistaken impression that the Prosecutor did not apply his mind but was acting mechanically and carrying out the order issued by the State Government. It is argued that the Additional Legal Advisor considered the entire prosecution case alleged against the petitioner inc3luding the statements of various witnesses and came to the right conclusion that there is no evidence to substitute the allegation of conspiracy alleged against the petitioner. It is also argued that the learned Special Judge went wrong in relying on the order GO(MS) No. 99/99/ Vig. Thiruvananthapuram dt. 1.11.1999 issued by the Principal Secretary to the State Government. It is argued that the State Government has no power to accord sanction to prosecute a member of Indian Administrative Service in view of the provisions contained in Section 19(1) of the P.C.Act. It is also argued that a reading or that order itself will show that the authority who accorded sanction did not apply his mind properly. It is argued that the Special Judge proceeded on the assumption that the sanction accorded by the Chief Secretary of the State of Kerala is valid since the petitioner was working under the Government of Kerala at the relevant period of time. It is argued that a decision reported in Krishna Iyer v. Stale of Kerala , is not an authority to hold that the State Government is the Competent Authority to accord sanction under Section 9(1) of the P.C.Act regarding an I.A.S. Officer.
10. I shall first consider whether the Chief Secretary to State is the Competent Authority to accord sanction under Section 19(1) of the P.C.Act so far as an I.A.S. Officer is concerned.
11. Section 197 deals with prosecution of Judges and Public Servants. Section 197(1) provides that "when any person who is or was a Judge or Magistrate or Public Servant not removable from his office save by or with the sanction of the Government is accused of an offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty no court shall take cognizance of such offence except with previous sanction of the Competent Authority. If the accused is employed in connection with affairs of the Union, the Central Government is the Competent Authority. If he is employed in connection with the affairs of the State Government, the State Government is the Competent Authority. The word 'offence' is defined under Section 2(n) of the Criminal Procedure Code. It reads as follows:
2(n) "Offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle Tresspass Act, 1871 (1 of 1871).
In view of the definition of the word offence under Section 2(n) of the Code of Criminal Procedure, it would appear that Section 197 not only applies to offence punishable under the provisions of the Indian Penal Code, but to any offence punishable under any law for the time being. Section 197 of Code of Criminal Procedure is a general provision. The object of this section is to guard Public Servants against vexatious proceedings. It has been considered proper that the well considered opinion of superior authority is obtained before launching a criminal prosecution against the public servant. The purpose of the section is to enable a public servant to perform their duties fearlessly by protecting them from vexatious, mala fide or false prosecution for acts done in the performance of their duties.
12. Section 19 of the P.C.Act also deals with sanction for prosecution. It is a special provision contained in a special enactment. Section 19 reads as follows:
(1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the prevision sanction,--
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office by or with the sanction of the Central Government, of that Government.
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government.
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) ...
(4) ...
Previous sanction of the Competent Authority is a prerequisite for taking cognizance of the offences under Sections 7, 10, 11, 13 and 15 of the P.C.Act. If there is no sanction, no cognizance of the above said offences can be taken. Section 19 has been incorporated in the P.C.Act to safeguard the innocent public servants. Section 19 of the P.C.Act enjoins that Competent Authority should apply its mind to the facts of the case, consider all materials and evidence collected during investigation and take an independent decision as to whether the sanction should be accorded or not.
13. It is true that Section 197 of Code of Criminal Procedure and Section 19 of the P.C.Act deals with sanction for prosecution. But the sanction required under Section 197 of Cr.P.C. and sanction required under Section 19 of the Act, 1988 stand on different footings. In Ramesh Lal Jain v. Nagunder Singh Rana 2005 AIR SCW 5875, it was held as follows:
13. Sanction required under Section 97, Cr.P.C. and sanction required under the 1988 Act stand on different footings. Whereas sanction under the Indian Penal Code in terms of the Code of Criminal Procedure is required to be granted by the State; under the 1988 Act it can be granted also by the authorities specified in Section 19 thereof.
14. It was also held that the offences under 1988 Act and Indian Penal Code are different and distinct. In Dilawar Singh v. Parvinder Singh 2005 (4) KLT 1029 (SC) : 2005 AIR SCW 6021 it was held as follows:
...The Prevention of Corruption Act is a special statute and as the preamble shows this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. Therefore, the provisions of Section 19 of the Act will have an overriding effect over the general provisions contained in Section 190 or 319, Cr.P.C.
It was also held that the Special Judge cannot proceed against a person for an offence under the P.C.Act if no sanction has been granted by the appropriate authority for prosecution of such person as the existence of sanction is sine qua non for taking cognizance of the offence qua that person. So, the sanction required under Section 197 of Cr.P.C. and Section 19 of the P.C.Act, 1988 are different and distinct. In some cases, the Competent Authority may be one and the same. Who is the Competent Authority to grant sanction under Section 19 of the P.C.Act, so far as an I.A.S.Officer is concerned? Is it the State Government or the Central Government? Section 19 of the 1988 Act itself provides the answer to the above stated questions.
15. The petitioner is a member of Indian Administrative Service which is formed under Section 2 of the All India Service Act, 1951. Section 2 of the Act, 1951 provides that All India Service means service known as the Indian Administrative Service or the service known as Indian Police Service or other service specified in Section 2A. Section 2A deals with other services formed under the Act. Section 3 deals with regulation of recruitment and conditions of service. Section 3 provides that the Central Government may, after consultation with the State Governments make rules for the regulation of recruitment and the conditions of service of persons appointed, to an All India Service. In exercise of the powers conferred under Section 3 thereof, the Central Government had framed All India Services (Discipline and Appeal) Rules, 1955 which was subsequently replaced by All India Service (Discipline and Appeal) Rules, 1969. In V.S. Agarwal v. State of Punjab a Constitution Bench of the Supreme Court has considered the validity of All India Service Act and also the All India Service (Discipline and Appeal) Rules, 1955. It was held as follows:
Rule 3 provides for penalties, which are seven in number. Rule 4 provides for the authorities, who can impose the penalties, and three of the penalties, namely, dismissal, removal or compulsory retirement, can only be imposed by the Central Government, while the other four penalties can be imposed by the State Government.
Rule 6 of All India Service (Discipline and Appeal), Rules, 1969 deals with penalties. Rule 7 deals with the authority to institute proceedings and to impose penalty. Rule 8 deals with procedure for imposing penalty. Rule 7(2) of All India Service (Discipline and Appeal) Rules, 1969 reads as follows:
7.(1) xxx xxx xxx (2) The penalty of dismissal, removal or compulsory retirement shall not be imposed on a member of the Service except by an order of the Central Government.
So a reading of Rule 7 make it very clear that the Competent Authority to impose the penalty of dismissal, removal or compulsory retirement on an I.A.S.Ofiicer is the Central Government and not the State Government. Of course, the other penalties prescribed under Rule 7 can be imposed by the State Government.
16. The history and scheme of All India Service came up for consideration in Gadur Kishan Sao and Ors. v. Sutirtha Bhattaacharya and Ors. . It was held as follows:
Even prior to the independence of the country, in a conference held under the Chairmanship of Sardar Vallabhai Patel, a decision had been taken to create two All India Services such as Indian Administrative Service and Indian Police Service to replace the former Indian Civil Service and Indian Police. It was further decided that the recruitment to these two services should be made through the Federal Public Service Commission on the basis of annual competitive examination. In the very same meeting, a further decision had been taken that maximum of 25% of the cadre of posts in the All India Services should be thrown open to the State Civil Service Officers and State Police Officers of outstanding merit. In pursuance of the aforesaid decision, the two All India Services were formed and they were put on statutory basis under the Indian Civil Administrative Service Cadre Rules, 1950. Parliament then passed the All India Services Act, 1951 under Article 312(1) of the Constitution which empowers the Government of India to make after consultation with the State Government, rules for the regulation of recruitment and conditions of service of the persons appointed to an All India Service. In exercise of power under Section 3 of the Act, the Recruitment Rules, the Cadre Rules, the All India Services (Conditions of Service-Residuary Matters) Rules, 1960 have been made by the Central Government. The Cadre Rules enable the Central Government to determine the strength and composition of the cadre in each State by framing regulations and in exercise of such power, the Cadre Strength Regulations, 1955 have been framed by the Central Government and not only the total authorised strength of the cadre for each State has been indicated but also it indicates the number of posts for different categories of posts within the cadre. Thus the Act, the Rules and the Regulations are a complete set of provisions dealing with different aspects of the service conditions to the Indian Administrative Service and the entire scheme contained in these rules and regulations have to be borne in mind while deciding the issues involved in this case.
(emphasis supplied) So, the position is no more res integra. Petitioner cannot be dismissed, removed or compulsorily retired from service except by an order by the Central Government. State Government has no authority to pass an order dismissing or removing the petitioner from service.
17. Section 19(1)(b) of the 1988 Act imposes two conditions. The person must be employed in connection with the affairs of State. He must be a public servant not removable from his office save by or with the sanction of the State Government, of that Government. The State Government can accord sanction under Section 19 of the P.C.Act only if the public servant satisfies both the above said conditions. These two conditions are not disjunctive but is conjunctive. Even if the public servant is employed in connection with the affairs of the Kerala State, if he cannot be removed from his office with the sanction of the State Government, the Competent Authority under Section 19 of the Act is not the State Government. The petitioner is a member of Indian Administrative Service constituted under the All India Service Act, 1951. He can be removed from service only by the Central Government. Section 19(2) makes the position clear, Sub-section (2) of Section 19 of the Act provides that if any doubt arises as to who is the Competent Authority, then the sole test is to consider who is the authority competent to remove the public servant from his office at the time when the offence was alleged to have been committed. So far as the petitioner is concerned, it is only the Central Government and not the State Government.
18. The learned Special Judge had relied on a decision reported in Krishna Iyer v. State of Kerala . The principle laid down in that decision can have no application in the facts and circumstances of the case. In Krishna Iyer's case a Division Bench of this Court considered whether the sanction for prosecution passed by the Secretary to Vigilance Department of State for taking cognizance of offences against any officer working under other departments of the State Government is legal and valid. The question whether the State Government can accord sanction to prosecute a member of Indian Administrative Service was not raised and considered in that decision. The petitioner cannot be prosecuted for an offence punishable under Section 13(2) read with Section 13(1)(d) of the P.C. Act since the Competent Authority had refused to accord sanction. There is nothing on record to show that Competent Authority did not apply his mind while refusing sanction for prosecution. On the other hand he had considered the opinion of Chief Vigilance Commissioner and learned Attorney General and passed the order. The view taken by the Special Judge that petitioner can also be prosecuted for such an offence in view of the sanction order issued by the State is illegal and is only to be set aside.
19. The next question arising for consideration is whether the order passed by the learned Judge dismissing the petition filed by the Additional Legal Advisor, Vigilance and Anti Corruption Bureau is legal and proper. The learned Special Judge took a view that the petition filed by the Additional Legal Advisor was not having personal satisfaction in filing the petition and he had filed the petition in the case only because of the fact that the Central Government refused to sanction and prosecute and the decision to withdraw from prosecution was taken by the Government. The view taken by the learned Special Judge is that the Prosecutor was simply carrying out a decision taken by the Government. The Government only requested the Director, Vigilance ana Anti Corruption Bureau to move the Enquiry Commissioner and Special Judge for consent to withdraw from the prosecution so far as the petitioner is concerned in C.C.No. 43/03. Of course, the Director, Vigilance and Anti Corruption Bureau as per his letter No. G5 (SJK) 20167/2003 dt. 26.2.2005 directed the Deputy Superintendent of Police to file a report before the Special Judge in consultation with the Legal Advisor, Vigilance and Anti Corruption Bureau for withdrawing the prosecution against the petitioner and delete his name from the array of the accused and to report compliance with a copy of the report and orders of the Enquiry Commissioner. But the Deputy Superintendent of Police did not file any report as directed by the Director. The Additional Legal Advisor, Vigilance and Ami Corruption Bureau, Kozhikode had filed a petition. The petition was supported by an affidavit sworn to by the Additional Legal Advisor, VACB, Kozhikode who filed the petition himself and not by the Deputy Superintendent of Police. So, it cannot be held that the Additional Legal Advisor simply carried out a direction of the Government. The State Government as per order dated 1.11.1999 accorded sanction to prosecute the petitioner for the offence under Section 120B IPC and also for the offence under Section 13(2) read with Section 13(1)(d) of the P.C.Act. The Competent Authority after applying its mind refused the sanction sought for to prosecute the petitioner for the offences under the P.C.Act. On receipt of that order, State Government as per letter No. 2042/A2/99/Vig. dt. 6.11.2003 sought opinion of the learned Advocate General. After perusing the entire materials, the learned Advocate General forwarded his opinion to the Government. The operative portion of the opinion reads as follows:
I am therefore of the opinion that in the light of the views taken by the learned Attorney General of India and the decision arrived at by a very important authority, viz, the competent authority does not advisable to proceed with the case of conspiracy alone against A2, Mr. Sudhakaran I.A.S. In the petition filed under Section 321 of the Code of Criminal Procedure, the Additional Legal Advisor narrated the entire history of the case. He had also referred the opinion to the Advocate General. The petition was supported by an affidavit sworn to by the Additional Legal Advisor also. In paragraph 6 of the affidavit, the Additional Legal Advisor had stated that the prosecution for the offence under Section 120B alone can result in conviction. The relevant paragraphs read as follows:
6. The prosecution for offence under Section 120B alone cannot result conviction. After perusing the opinion of the learned Advocate General dated 28.5.2004, the letter from the Director of Vigilance and Anti Corruption Bureau dated 26.2.2005 and also the Government letter dated 18.2.2005, this deponent is fully satisfied that the prosecution of A2 for the offence under Section 120B alone will not end in conviction.
7. On a careful examination of the charge sheet this deponent is satisfied that there is no convincing evidence against A2 under Section 120B.
He had also referred to a decision rendered by this Court in Crl.M.C.No. 5632/02. So it is not a case wherein the Additional Legal Advisor mechanically filed a report in view of the decision taken by the Government. The affidavit sworn to by the Additional Legal advisor shows that he had applied his mind and come to an independent conclusion that there is no convincing evidence against the petitioner warranting conviction of an offence under Section 120B of the Indian Penal Code. The learned Special Judge had relied on the decisions reported in Abdul Kareem v. State of Karnataka and Rahul Agarwal v. Rakesh Jain . In R.K. Jain v. State the Apex Court after elaborate discussion of the subject had laid down the principles to be followed while dealing with a petition filed under Section 321 Cr.P.C. In Rahul Agarwal's case (supra) it was held that even if the Government directs the Public Prosecutor to withdraw the prosecution and application is filed to that effect, the court must consider all relevant circumstances and found out whether the withdrawal of the prosecution would advance the cause of justice. It was further held that if the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal from the prosecution. It was further held that the discretion under Section 321 Cr.P.C. is to be carefully exercised by the court having due regard to all relevant facts and shall not be exercised to stifle the prosecution.
20. In S.K. Sukla v. State of U.P. 2005 AIR SCW 6054 the Apex Court held as follows:
33...However, Section 321 of the Code does not lay any bar on the Public Prosecutor to receive any instruction from the Government before he files an application under that section. If the Public Prosecutor received such instructions, he cannot be said to act extraneous influence. On the contrary, the Public Prosecutor cannot file an application for withdrawal of a case on his own without instruction from the Government, since a Public Prosecutor cannot conduct a case absolutely on his own, or contrary to the instruction of his client, namely, the Government.... "If the Government gives instructions to a Public Prosecutor to withdraw from the prosecution of a case, the latter after applying his mind to the facts of the case may either agree with instructions and file a petition stating grounds of withdrawal or disagree therewith having found a good case for prosecution and refuse to file the withdrawal petition.... The Public Prosecutor cannot act like a post box or act on the dictate of the State Governments. He has to act objectively as he is also an officer of the Court. At the same time court is also not bound by that the courts are also free to assess whether the prima facie case is made or not. The court if satisfied, can also reject the prayer.
In this case, the learned Advocate General who had opined that it is not advisable to proceed with the case of conspiracy in the case of the petitioner. It is also to be remembered that the Chief Vigilance Commissioner and learned Attorney-General were of the opinion that there is no material to show that the petitioner committed any offence under the P.C.Act. So the Government requested the Director to move the Special Judge. The Prosecutor had considered all aspects of the matter and also the materials and evidence on record. He had found that there is no convincing evidence against the petitioner for warranting a conviction under Section 120B of Indian Penal Code. The Prosecutor did not act mechanically as directed by the Government or as a Post Office in filing the petition for withdrawing from the prosecution. The learned Special Judge did not consider any of these aspects while dismissing the petition. He acted illegally and exceeded in exercise of the jurisdiction vested in him and acted as appellate authority on the decision of the Prosecutor. So, the order passed by the learned Special Judge dismissing the application filed by the Additional Legal Advisor is illegal and liable to be set aside. I do so.
21. It is seen that after dismissing the petition, the learned Special Judge has held that the petitioner is also liable to answer charge under Section 13(1)(d) read with Section 13(2) of the P.C.Act and Section 120B of IPC. In view of the order of the Competent Authority rejecting the prayer to accord sanction to prosecute the petitioner, the petitioner cannot be tried for an offence punishable under Section 13(1)(d) and 13(2) of the P.G.Act. It is not a case in which the prosecution failed to move the Competent Authority for sanction but a case in which the Competent Authority refused the sanction sought for. So, the order passed by the Enquiry Commissioner and Special Judge, Kozhikode on 18th November, 2005 to frame charge for an offence punishable under Section 13(1)(d) read with Section 13(2) of the P.C.Act against the petitioner is without jurisdiction and liable to be set aside.
22. The learned Special Judge had found that there are materials to frame charges under Section 120B and 109 of Indian Penal Code against the petitioner also. Since I have already found the permission sought for by the Prosecutor to withdraw from prosecution is to be granted, I am not considering separately whether there are materials to frame charges under Sections 109 and 120B of Indian Penal Code.
23. In the result, Criminal Revision Petitions are disposed of in the following manner.
Crl.R.P.223/06The Criminal Revision petition is allowed in part. The decision of the Enquiry Commissioner and Special Judge that the petitioner is liable to be prosecuted for the offence under Section 13(2) read with Section 13(1)(d) of the P.C.Act is set aside.
Crl.R.P.226/06The order passed by the learned Enquiry Commissioner and Special Judge Kozhikode dismissing Crl .M.P.No. 71/05 in C.C.No. 43/03 is hereby set aside. That petition is allowed. Consent is given to the Prosecutor to withdraw from the prosecution the case so far as the petitioner who is the second accused in C.C. No. 43/03 on the file of Enquiry Commissioner and Special Judge, Kozhikode. All further proceedings against the petitioner alone in C.C. No. 43/03 are dropped and the petitioner is acquitted under Section 321(b) of the Code of Criminal Procedure.