Kerala High Court
Prince Mathew vs State Of Kerala on 5 June, 2020
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 05TH DAY OF JUNE 2020 / 15TH JYAISHTA, 1942
OP(Crl.).No.494 OF 2019
AGAINST THE ORDER IN C.M.P.NO.332/2019 IN CC 336/2016 OF THE COURT
OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, MUVATTUPUZHA
PETITIONERS/PETITIONERS/ACCUSED NO.2 TO 8:
1 PRINCE MATHEW,
AGED 55 YEARS
S/O.SRI.P.M.MATHEW, DEPUTY DIRECTOR OF AGRICULTURE,
IDUKKI, THODUPUZHA, RESIDING AT PERUMATTIKUNNEL HOUSE,
IMKOMBU, KADANAD P.O., MEENACHIL,
KOTTAYAM DISTRICT - 686 653.
2 JOHNSON PURAVAKKATTU,
AGED 53 YEARS
S/O.THE LATE P.V.JOHN, FARM SUPERINTENDENT, ORANGE AND
VEGETABLE FARM, NELLIAMPATHY, PALAKKAD DISTRICT,
RESIDING AT PURAVAKKATTU HOUSE, OTTALLOOR P.O.,
KARIMUKUNNAM, THODUPUZHA, IDUKKI DISTRICT - 685 586.
3 K.P.UNNIKRISHNA PILLAI,
AGED 56 YEARS
S/O.THE LATE K.N.PADMANABHA PILLAI, ASSISTANT DIRECTOR
OF AGRICULTURE (RETIRED), RATTC, VYTTILA, ERNAKULAM
DISTRICT, RESIDING AT KIZHAKKAYIL HOUSE, KOLANY P.O.,
THODUPUZHA, IDUKKI DISTRICT - 685 584.
4 BABU T.GEORGE,
AGED 55 YEARS
S/O.SRI.T.V.GEORGE, PROJECT DIRECTOR, ATMA, PRESENTLY
WORKING AS PRINCIPAL AGRICULTURAL OFFICER, IDUKKI,
THODUPUZHA, RESIDING AT THOPPIL HOUSE, KODIKULAM P.O.,
THODUPUZHA, IDUKKI - 685 582.
5 V.T.SULOCHANA,
AGED 54 YEARS
D/O.THE LATE P.K.THANKAPPAN, DEPUTY PROJECT DIRECTOR,
ATMA, THODUPUZHA, IDUKKI, RESIDING AT KAIRALI BHAVAN,
RAMAPURAM P.O., KOTTAYAM - 686 576.
6 TESSY ABRAHAM,
AGED 53 YEARS
D/O.THE LATE P.C.ABRAHAM, DEPUTY DIRECTOR OF
AGRICULTURE, INTERNATIONAL RESEARCH AND TRAINING
CENTRE FOR BELOW SEA LEVEL FARMING, KUTTANAD,
THOTTAPPALLY P.O., ALAPPUZHA, RESIDING AT AMALA NIVAS,
PAKALOMATTOM P.O., KURAVILANGAD, KOTTAYAM - 686 633.
OP(Crl)No.494 OF 2019
2
7 ANCY JOHN,
AGED 55 YEARS
D/O.THE LATE P.V.JOHN, PRINCIPAL AGRICULTURAL OFFICER,
IDUKKI PRESENTLY WORKING AS ADDITIONAL DIRECTOR OF
AGRICULTURE, DIRECTORATE OF AGRICULTURE, VIKAS BHAVAN,
THIRUVANANTHAPURAM, RESIDING AT KOOVELIKALAPPURA
HOUSE, VAZHAKKULAM P.O., MUVATTUPUZHA,
ERNAKULAM DISTRICT - 686 670.
BY ADVS.
SRI.O.V.RADHAKRISHNAN (SR.)
SRI.P.KRISHNANKUTTY NAIR (KOLLAMALA)
SMT.K.RADHAMANI AMMA
RESPONDENTS/RESPONDENTS/COMPLAINANT & ACCUSED NOS.10 & 11:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
2 JOSE SEBASTIAN,
S/O.JOSEPH, PURAKKATTU HOUSE, THIDANADU, KONDOOR,
KOTTAYAM - 686 123.
3 KURUVILA JOSEPH,
S/O.KURUVILA, NADUTHOTTIYIL HUSE, TEEKOY, MEENACHIL
TALUK, KOTTAYAM - 686 580.
R1 SPL.PP SRI.A.RAJESH
R2-3 BY ADV. SRI.DOMSON J.VATTAKUZHY
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 28-02-2020, THE
COURT ON 05-06-2020 DELIVERED THE FOLLOWING:
OP(Crl)No.494 OF 2019
3
JUDGMENT
The original petitioners stand arrayed as accused Nos 2 to 8 in CC.No.336/2016 on the files of Enquiry Commissioner and Special Judge, Muvattupuzha for offences punishable under Sections 13(2) r/w 13(1) (c) and 13(1) (d) of Prevention of Corruption Act and Sections 409, 465, 471, 477A and Section 120B of the Indian Penal Code.
2. The allegation of the prosecution was that while the petitioners were working as agricultural officers in different Krishi Bhavans in Thodupuzha, violated the procedure for distribution of fertilizers, insecticides, chemicals and seedlings under various Schemes and connived to pay encashed fund from the Treasury on contingent bills. Vigilance and Anti Corruption Bureau, Idukki Unit, conducted an investigation into the above allegation and submitted a report. The Department framed charges against the petitioners and called for explanation of defence from the petitioners. After OP(Crl)No.494 OF 2019 4 consideration of defence and the documents, the Government decided to refer the charges against the accused for detailed enquiry by the Vigilance Tribunal, Thiruvananthapuram by Ext.P1. A final report was filed before the Special Judge, Kottayam where the matter was pending at that time with a request to delete the case from the files of the Court, treating it as not charge-sheeted. The Special Judge by Ext.P3 order rejected the final report and took cognizance of the offences as mentioned above. By Ext.P6 order Additional Director of Agriculture (Full additional charge of Director)accorded sanction for prosecution under Section 19 (1) (c) of Prevention of Corruption Act. The above proceeding was challenged in Crl.R.P.No.3083/2010. A contention was set up that the petitioners were removable only by the Government and that Ext.P6 sanction was granted by an incompetent authority and consequently, the prosecution was bad. Revision was disposed of giving liberty to the petitioners to file application for discharge and also to raise objections OP(Crl)No.494 OF 2019 5 regarding the legality and acceptability of prosecution sanction. Accordingly, the petitioners filed CMP.No.332/2019, before the Special Judge seeking discharge under Section 239 Cr.P.C. The Court below by Ext.P15 order held, inter alia, that the sanction for prosecution was valid. However, it was found that misappropriation alleged covered a period exceeding one year. Hence, in the light of the proviso to S.25 of the Prevention of Corruption Act, final report was ordered to be returned for filing separate final reports. The above order is under challenge in the present proceedings.
3. Heard the learned senior counsel for the petitioners and the learned Special Government Pleader for the VACB.
4. The learned senior counsel for the petitioners advanced several grounds of attack on the impugned order, touching on the validity of sanction order, the competency of the authority which granted sanction and on the ground that absolutely no material has been gathered by the vigilance to establish that the petitioners OP(Crl)No.494 OF 2019 6 had committed any misconduct. However, since it appears that validity of sanction for prosecution is a preliminary point and that contention appears to be worth consideration, it considered as a preliminary point.
5. According to the learned senior counsel, S.19(1) of the Prevention of Corruption Act mandates that 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 previous sanction, in the case of persons who are employed in connection with the affairs of the State, by the State Government. According to the learned senior counsel, all the petitioners were gazetted officers and were employed by the State Government in connection with the affairs of the State. Accordingly, sanction under S.19(c) (b) can be accorded only by the Government. It was contended that in the present case sanction was accorded by the Additional Director of Agriculture (Planning), who was assigned the full additional charge of Director of Agriculture. It was contended that, Director OP(Crl)No.494 OF 2019 7 was not the authority competent to accord sanction. The ancillary argument was that even if the Director was the competent authority, the present authority being the Additional Director of Agriculture, placed in full charge of Director, could not have exercised the authority to grant sanction, which was conferred with the Director only. Another limb of this contention was that, even if sanction was presumed to be valid, it was confined to prosecution under the Prevention of Corruption Act, and the sanction for prosecution mandated under S.197 Cr.P.C for offences punishable under the Indian Penal Code was lacking.
6. Ext.P6 is the order granting sanction dated 17.6.2006 of the Director of Agriculture (Full additional charge). Ext.P7 is the Government order dated 17.04.2004 assigning full additional charge of Director to the Additional Director (Planning). There is no dispute that during the relevant time all the petitioners were working as Agriculture Officers in the Department of Agriculture. Ext.P8 is the order of delegation of powers OP(Crl)No.494 OF 2019 8 to the Director of Agriculture and others. As per clause I (1), which deals with administrative powers of the Director of Agriculture, he is authorised to make appointment to posts, the maximum pay of which exceeds Rs 250 per month upto and including all gazetted posts, of and below the pay scale of Rs.250- 550 in each service in the departments. In reply to Ext.P9 query regarding the authority competent to initiate disciplinary proceedings against Agricultural Officers, submitted under the Right to Information Act, Ext.P9 (2) reply dated 30.1.2018 was issued. It states that the power to take disciplinary proceedings warranting imposition of major penalty against Agricultural Officers in State service vests with the Government. For imposing minor penalty on officers in State service, Director of agricultural Department has to be authorised by the Government. Ext.P10 (2) reply states that Government alone is competent to remove the agricultural officers in State service and that disciplinary proceedings are taken by virtue of Rule 13 of OP(Crl)No.494 OF 2019 9 KSS (CC and A), 1960. Ext.P11 (2) reveals that the post of Agricultural Officer in the Agricultural Department became a gazetted officer post with effect from 1.7.1988. Ext.P12 (3) is a copy of the communication of the Principal Secretary to the Government of Agricultural department dated 22.3.2018, stating that the Director of Agriculture has no power to remove an agricultural officer from service and the Government is the authority to impose penalty under Rule (I) and (III) to VIII Rule 11 (1) of Kerala Civil Service (CC-A) Rules 1960, which include removal from service of a member of State service. Rule 9 of Civil Service (CC and A) Rules indicates that petitioners are gazetted officers in State service, as under d (1) of Rule 6. The above materials clearly show that Government is the authority competent to remove or to impose punishments, including imposition of major penalty.
7. The learned senior counsel contended that the authority who had accorded sanction was not the Director, but was the officer placed in full additional OP(Crl)No.494 OF 2019 10 charge of Director. It was contended that such an authority is not competent to sanction prosecution. To supplement this contention, the learned senior counsel relied on the decisions reported in Ajaib Singh Vs Gurbachan Singh and Others AIR 1965 SC 1619, Ramakant Shripad Sinai Advalpalkar Vs. Union of India and Others 1991 Supp (2) SCC 736 at para 6, Krishna Kumar V Divisional Assistant Electrical Engineer, Central Railway and Others AIR 1979 SC 1912 and State of Haryana Vs. S.M.Sharma and Others 1993 Supp (3) SCC
252. The above decisions support the above contention. In the light of the above judicial precedents, the submission of the learned senior counsel that the sanction accorded by the officer holding full additional charge appears to be legally correct and sustainable.
8. Another limb of the argument of the learned senior counsel was that even the sanction granted was one under Section 19(1) (c) of the Prevention of Corruption Act. There was no sanction under Section 197 Cr.P.C to prosecute accused for offences under the OP(Crl)No.494 OF 2019 11 provisions of Indian Penal Code, it was contended. To buttress this contention, the learned senior counsel relied on the decisions reported in Ram Kumar Vs State of Haryana, (1987) 1 SCC 476, in which it was held that even if sanction under S.132 Cr.P.C was accorded, court cannot take cognizance of the offences in the absence of sanction under S.197 Cr.P.C. It was held that sanction under Section 132 Cr.P.C cannot be a substitute for sanction under Section 197 Cr.P.C. Evidently in this case, no sanction was granted under S.197 Cr.P.C to prosecute the petitioners for offences alleged under the provisions of IPC. Hence the prosecution for offences alleged under the provision of IPC is not legally sustainable.
9. The learned senior counsel further contended that grant of sanction is a Solemn Act and is intended to safeguard the officers against frivolous and vexatious litigations. Taking a cue from the decision reported in State of Maharashtra through Central Bureau of Investigation Vs. Mahesh G Jain (2013) 8 SCC 119 on OP(Crl)No.494 OF 2019 12 this point, it was contended that any case instituted without a proper sanction should fail because it being a manifest defect in prosecution and the entire proceedings were rendered void. It was held that the order of sanction was a pre-requisite as it was intended to provide a safeguard to a public servant against frivolous and vexatious litigation. The scope of a valid sanction and the duty of the prosecution to establish the existence of a valid sanction was reiterated in Mohammed Iqbal Ahammed V State of Andhra Pradesh (AIR 1979 SC 677), Devinder Singh and Others V State of Punjab (2016) 12 SCC 87, CBI V Ashok Kumar Aggarwal (2014) 14 SCC 295, Parkash Singh Badal and Another V State of Punjab and Others (2007) 1 SCC 1, Dinesh Kumar V Chairman, Airport Authority of India and Another (2012) 1 SCC 532 and Sanjaysinh Ramrao Chavan V Dattatray Gulabrao Phalke and Others (2015) 3 SCC 123. In Mohammed Iqbal Ahammed's case (supra) it was held that any case instituted without a proper sanction must fail, because it being a manifest OP(Crl)No.494 OF 2019 13 defect in prosecution, and the entire proceedings are rendered invalid. In State of Mizoram V Dr.C.Sangnghina AIR 2018 SC 5342, it was held that the competence of the court trying the accused so much depends upon the existence of a valid sanction. In case, the sanction was found to be invalid, the court can discharge the accused, relegating the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with law. If the trial court proceeds despite the invalidity attached to the sanction order, the same shall be deemed to be nonest in the eye of law and shall not forbid a second trial for the same officers, upon grant of a valid sanction for such prosecution. The above decision applies to the present facts. Since the very existence of the sanction order and the competency of that authority was challenged, the objections could be considered even before the trial.
10. Having found the above point in favour of the petitioners, none of the other issues arise for consideration at present. The prosecution pursuant to OP(Crl)No.494 OF 2019 14 Ext.P2 final report is liable to be quashed. This judgment will not operate as an acquittal on merits and will not preclude prosecution, if valid sanction is obtained.
In the result, the Original Petition is allowed. All further proceedings in CC.No.336/2016 of Enquiry Commissioner and Special Judge, Muvattupuzha as against the petitioners stand quashed.
Sd/-
SUNIL THOMAS, JUDGE
R.AV
//True Copy// PS to Judge
OP(Crl)No.494 OF 2019
15
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 PHOTOCOPY OF THE GO(RT) NO.46/08/VIG.
DATED 16/02/2008 OF THE UNDER SECRETARY TO GOVERNMENT.
EXHIBIT P2 PHOTOCOPY OF THE FINAL REPORT IN VC NO.11/99 DATED 02/01/1999 FILED BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOTTAYAM.
EXHIBIT P3 PHOTOCOPY OF THE ORDER DATED 31/03/2010 IN VC 11/1999 OF VACB, IDUKKI IN THE COURT OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOTTAYAM.
EXHIBIT P4 PHOTOCOPY OF THE LEGAL OPINION DATED 11/03/2003 OF THE ADDITIONAL LEGAL ADVISOR, VACB, IDUKKI.
EXHIBIT P5 PHOTOCOPY OF THE FILE NOTE FURBISHED UNDER THE RIGHT TO INFORMATION ACT.
EXHIBIT P6 PHOTOCOPY OF THE ORDER OF SANCTION NO.SVC(1) 44295/96 DATED 17/06/2006 OF THE DIRECTOR OF AGRICULTURE, THIRUVANANTHAPURAM.
EXHIBIT P7 TRUE COPY OF THE GO(RT) NO.613/04/AD DATED 17/04/2004 OF THE JOINT SECRETARY TO GOVERNMENT.
EXHIBIT P8 TRUE COPY OF THE GO(P) NO.308/AGRI.
DATED 28/04/1964 OF THE JOINT SECRETARY TO GOVERNMENT.
EXHIBIT P9 PHOTOCOPY OF THE REPLY DATED 30/01/2018 OF THE STATE PUBLIC INFORMATION OFFICER, ADMINISTRATIVE ASSISTANT, DIRECTORATE OF AGRICULTURE, VIKAS BHAVAN, THIRUVANANTHAPURAM ALONG WITH APPLICATION DATED 10/01/2018 UNDER THE RIGHT TO INFORMATION ACT.
OP(Crl)No.494 OF 2019 16 EXHIBIT P10 PHOTOCOPY OF THE REPLY DATED -01-2018 OF THE STATE PUBLIC INFORMATION OFFICER, ADMINISTRATIVE ASSISTANT, DIRECTORATE OF AGRICULTURE, VIKAS BHAVAN, THIRUVANANTHAPURAM ALONGWITH THE APPLICATION DATED 10/01/2018 UNDER THE RIGHT TO INFORMATION ACT.
EXHIBIT P11 PHOTOCOPY OF THE REPLY DATED 30/01/2018 OF THE STATE PUBLIC INFORMATION OFFICER, ADMINISTRATIVE ASSISTANT, DIRECTORATE OF AGRICULTURE, VIKAS BHAVAN, THIRUVANANTHAPURAM ALONGWITH THE APPLICATION DATED 10/01/2018 UNDER THE RIGHT TO INFORMATION ACT.
EXHIBIT P12 PHOTOCOPY OF THE MEMO DATED 04/07/2018 ALONGWITH GOVERNMENT LETTER NO.78/EA1/2018/AD DATED 22/03/2018 IN CRL.R.P.NO.3083/2010 FILED BY THE SENIOR GOVERNMENT PLEADER AS DIRECTED BY THIS HON'BLE COURT ON 02/07/2018.
EXHIBIT P13 PHOTOCOPY OF THE ORDER DATED 18/07/2018 IN CRL.R.P.NO.3083 OF 2010 OF THIS HON'BLE COURT.
EXHIBIT P14 TRUE COPY OF THE CRL.M.P.NO.332/2019 IN CC NO.336/2016 FILED BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, MUVATTUPUZHA.
EXHIBIT P15 PHOTOCOPY OF THE ORDER DATED 08/08/2019 IN C.M.P.NO.332/2019 IN CC NO.336/2016 OF THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE), MUVATTUPUZHA.
RESPONDENT'S/S EXHIBITS NIL