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21. Per contra, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the State authorities as well as Sri.K.Sandesh Raja, learned counsel appearing for the contesting respondents in the O.A/petitioners in O.P(KAT) No.331/2021 as well as Sri.Nirmal V.Nair, learned counsel appearing for additional R-7 in O.P(KAT) No.331/2021, would argue that the various provisions contained in the vigilance manual as well as the provision contained in the first proviso to Sec.17A of the Prevention of Corruption Act would make it clear like the day light that a trap case set up by the Vigilance & Anti-Corruption Bureau is entirely different and distinct from other vigilance cases and by the very nature of the trap case, the same has to be conducted and, effectuated with all confidentiality and secrecy or otherwise the bribe taker/receiver will be alerted and the trap case will be completely frustrated and therefore, the vigilance manual contains detailed provisions, making it clear that the requirement of preliminary enquiry cannot be insisted in the case of a trap O.P(KAT) Nos.331/21 & 93/2022 & case and that in such case, after following the requisite procedure, the competent vigilance police officials are fully empowered to register the FIR for trap case and to take further action thereon. Further that, the first proviso to Sec.17A of the Prevention of Corruption Act, 1988, introduced as an amendment made effective from 26.07.2018, would also specifically mandate that the requirement of approval of the competent authority is not insisted in the case of arrest of an accused person involved in a trap case and that therefore, the Parliament has made it clear that since, even for arrest of an accused person in a trap case, no approval of the competent authority is required, there is no question of any insistence that an FIR in a trap case can be registered by the vigilance police officials, only on the basis of a preliminary enquiry conducted by the Vigilance & Anti-Corruption Bureau, wherein the charges or allegations are prima facie established. Further that, even going by the specific materials borne out from Annexure A-2, it can be seen that the specific case of the de-facto complainant is that A-1 had demanded illegal gratification of Rs.70,000/- to be paid by the de facto complainant to her for clearing the bills and for that purpose, the said illegal gratification money should be handed over by the de facto complainant to accused No.3 (Section Forest Officer), so that the same could be later O.P(KAT) Nos.331/21 & 93/2022 & received by A-1 (original applicant). Further that, A-3 (Section Forest Officer) has been arrested and caught red-handed in the trap case on 16.08.2021 and by the very nature of the transactions insisted by A-1 & A-3, the illegal gratification money was not to be handed over directly to A-1, but that the complainant is to hand over the said money directly only to A-3 in order that the said money is passed on by him to A-1 (original applicant). In a case of that nature, the vigilance police officials can proceed only by registering an FIR and setting up the trap case and to arrest the bribe taker/receiver, after catching him red-handed and if it is insisted that even in such a case, preliminary enquiry is to be conducted for establishing the allegations on a prima facie basis and then only the FIR can be registered, then no trap case can ever be effectuated by the Vigilance & Anti-Corruption Bureau. Further that, in such a case, even after arresting A-3, who was caught for receiving the bribe money, on the spot, there could not have been any contingency of arresting A-1 on the spot, as the entire transactions designed by the accused persons were that the de-facto complainant should personally hand over the money only to A-3 and not to A-1 and therefore, in such a case, there is no question of catching A-1 red-handed and to arrest her on the spot, etc. The respondent-vigilance authorities have also produced O.P(KAT) Nos.331/21 & 93/2022 & Sec.161 statements of three witnesses as Annexures-1, 2 & 3 along with memo dated 05.04.2022, filed through the learned Senior Government Pleader in O.P(KAT) No.93/2022. We have also perused through the said Sec.161 Cr.P.C statements given by those witnesses to the police officers of the Vigilance & Anti-Corruption Bureau.

22. In the light of these rival pleas, this Court will have to decide as to whether the latter part of Note (i) supra can be invoked for superseding an officer only if the vigilance crime/FIR has been registered, pursuant to a vigilance enquiry conducted by the Vigilance & Anti-Corruption Bureau, wherein the allegations have been prima facie established or whether in a vigilance proceeding, arising out of a trap case, the first proviso to Sec.17A of the Prevention of Corruption Act, Note (i) supra could be invoked, pursuant to the pendency of an FIR in a trap case registered without a preliminary enquiry. Some of the various provisions contained in the Vigilance & Anti- Corruption Bureau Manual, more particularly, clauses 32, 44 to 50 thereof, have been elaborately considered by the Division Bench of this Court in Babu Prasad's case supra [2019 KHC 490 /940 (DB)], as can be seen from a reading of para.11 thereof. Some of the main functions of the Vigilance Bureau are referred to in clause 14 of the vigilance manual. Clause O.P(KAT) Nos.331/21 & 93/2022 & 14(e) thereof stipulates that the bureau conducts Vigilance Enquiries (VE) into matters referred to the Director for enquiry by the Government. But that, the Bureau does not initiate vigilance enquiries suo motu on complaints received directly by the Bureau and they are forwarded to the Government for further orders. However, clause 14(f) explicitly provides that, if at any stage during the vigilance enquiry conducted by the Bureau, there are reasonable grounds to believe that the public servant has committed an offence under the PC Act, the vigilance enquiry is stopped at that stage and a crime case is registered and investigated, after obtaining sanction from the Director. So, the said provision makes it clear that, subject to the satisfaction of those requirements, even without completing a vigilance enquiry, crime could be registered after obtaining sanction from the Government. Clause 22(iv) stipulates that, except in trap cases, registration of crime cases, when it is revealed during the course of an enquiry that the accused has committed an offence under the PC Act, is done only after obtaining sanction from the Director. So, it can be seen that, ordinarily, registration of a crime, during the course of an ongoing enquiry, can be done in cases where it is revealed that the accused has committed an offence under the PC Act. But registration of the crime can be ordered only after O.P(KAT) Nos.331/21 & 93/2022 & sanction from the Director. However, the exception to that is in trap cases. So in other words, in trap cases it has been specifically envisaged that, where there are materials to clearly show that the accused has committed an offence under the PC Act, etc., then crime could be registered without sanction from the Director, if it is for instituting a trap case. Chapter VII of the vigilance manual deals with vigilance case and clause 56 thereunder deals with registration of vigilance cases. Clause 56 reads as follows :

23. Clause 56(i) is broadly relatable to clause 47 (f) supra. Clause 56(i) specifically stipulates that, if at any stage, during the vigilance enquiry conducted by the Bureau, there are reasonable grounds to believe that the O.P(KAT) Nos.331/21 & 93/2022 & public servant has committed an offence under the PC Act, then vigilance enquiry will be stopped at that stage and a crime case is registered in respect of that allegation and investigated, after obtaining sanction from the Director. Clause 56 (ii) envisages that where the officer of the rank of Dy.SP considers, based on the findings of a vigilance enquiry/confidential verification/surprise check that, prima facie, there is adequate material to register a case in the vigilance police station, he will send a report to the Directorate through the Superintendent of Police with all relevant information indicating the suitability of registering a case and await instructions and that no crime case will be registered in the vigilance police station without instructions from the Directorate except in trap cases, for registration of which no such sanction is necessary. So in other words, the exception conceived in Rule 56(ii), in favour of trap cases, is relatable to the scenario envisaged in clause 22 (iv) mentioned above. Therefore, these cardinal provisions of the Vigilance & Anti-corruption Bureau Manual, more particularly clause 22(iv), clause 56(ii), would make it clear like the day light that ordinarily, where even in the course of an ongoing vigilance enquiry, if the officer is satisfied that materials are disclosing offence against public servant under the Prevention of Corruption Act, then the enquiry could be O.P(KAT) Nos.331/21 & 93/2022 & stopped and crime could be registered, but after obtaining orders from the Director. But the said requirement is not necessary where the scenario is one for the institution of a trap case. In other words, for a trap case, even without conducting any preliminary enquiry, the vigilance police officials are empowered to register the FIR/vigilance crime, as the objective for the same is crystal clear. If materials prima facie disclose the culpability of a public servant and the conditions for initiating a trap case are fulfilled, then vigilance police officials are fully empowered to register the crime, without conducting any preliminary enquiry/vigilance enquiry and without even getting formal sanction from the Director. If the meticulous and detailed procedure for conducting and concluding vigilance preliminary enquiry and then getting sanction from the Director and Government, etc., are insisted for effectuation of a trap case, then the very concept of trap case will become futile and will be frustrated, as by then, the alleged bribe takers/receivers will be alerted and even the remotest possibility for the success of a trap case will be thoroughly frustrated. Therefore, the learned Senior Government Pleader is fully right in contending that, by the very nature of a trap case, the same will have to be effectuated in a highly confidential and secret manner and if or otherwise the bribe takers/receivers are alerted, then any further O.P(KAT) Nos.331/21 & 93/2022 & effective steps in the trap case will be futile and of no consequence. In view of these cardinal aspects, the Vigilance & Anti-corruption Bureau Manual has clearly mandated that such enquiry or preliminary enquiry can be dispensed with in the institution of a trap case by registering an FIR and this can be done even without getting orders from the Director of the Vigilance Bureau. The detailed provisions for conducting of a trap case are contained in Chapter-X of the vigilance manual, more particularly Rules 92 to 127 thereof. Clauses 92, 93 & 94 of the Vigilance & Anti-Corruption Bureau Manual provide as follows :

35. The word 'charges', appearing in the latter part of Note (i) supra, i.e. charges have prima facie been established in a preliminary enquiry, cannot be equated to a charge sheet/final report submitted by the vigilance police, after the conclusion of the criminal investigation into the offences, as per the PC Act nor can it be equated to a charge framed by the competent criminal court, like the special court constituted as per the PC Act, after taking cognizance on the charge sheet/police final report. The word 'charges', appearing in the latter portion of Note (i) has to be understood as allegations in the said vigilance proceedings. So, what is most paramount is that the allegations in the vigilance proceedings, should have been prima facie established and it is also stated therein that such charges/allegations are prima facie established in a preliminary enquiry. When preliminary enquiry is never contemplated at all, in the institution of a vigilance proceedings for trap cases, then can it be insisted that such vigilance proceedings in trap case, which may have more serious gravity than other vigilance cases, cannot be pressed into service for superseding the claims of an officer in terms of Note (i) supra, merely because preliminary enquiry has O.P(KAT) Nos.331/21 & 93/2022 & not been conducted. In the very nature of trap case, ordinarily there is no question of conducting a preliminary enquiry and if there is a procedure for preliminary enquiry and getting approval or sanction from the various officers in a hierarchy, upto the Director, and then by the Government, etc., is insisted and if the FIR can be registered in a trap case only thereafter, then no effective purpose could be subserved, for by then, the alleged bribe takers/receivers will be sufficiently alerted and the whole purpose in a trap case will be completely or substantially frustrated. The abovesaid provisions, contained in the Vigilance Manual, makes it clear that there is no question of requirement of any preliminary enquiry and, on the officer being satisfied about the scenario for instituting a trap case, the FIR should necessarily be registered, as can be seen from Clause.93 of the Vigilance Manual and other provisions therein. Therefore, when it is well nigh impossible to conduct a preliminary enquiry before the registration of an FIR in a trap case, then can it still be insisted that such officers involved in a trap case, cannot be superseded or excluded from the select list in terms of Note (i), merely because a preliminary enquiry was not conducted. When preliminary enquiry itself is totally out of the question, will it be a proper and reasonable interpretation of the provisions contained in Note (i), to insist that O.P(KAT) Nos.331/21 & 93/2022 & such an officer, involved in a practice, cannot be subjected to exclusion of promotion based on Note (i) supra, merely because preliminary enquiry is not conducted . Our answer to the said question is definitely in the negative and it is only to be held that, where the vigilance police officials have followed their internal norms for institution of a vigilance case, subject to their satisfaction about the requirements of a trap case and the disclosure of an offence in that regard, etc., then it is for them to register an FIR and then proceed to the trap case. In such a case, an accused in a trap case cannot take up the plea that he cannot be multed with the liability under Note (i) supra, merely because preliminary enquiry was not conducted before the registration of the FIR in the trap case. The position in that regard can be reasonably affirmed in a case where the accused officer himself has been caught red-handed and arrested in a trap case. In the instant case, the original applicant (A1) has not been arrested on the spot in the said trap case and A3 (Section Forest Officer) alone has been arrested on the spot in the institution of the trap case. So in such a case, where the FIR is registered by the Vigilance & Anti-Corruption Bureau in a trap case and the officer, who is expecting promotion by the DPC, is an accused in such an FIR, other than the one who has been arrested on the spot in the trap case, then it has to be O.P(KAT) Nos.331/21 & 93/2022 & considered as to whether such an accused officer can also be multed with the detrimental effects of Note (i) supra. The said issue is quite a nuanced and subtle one.