Kerala High Court
Eldho.P.U vs State Of Kerala on 30 September, 2024
2024:KER:72468
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
OP(CRL.) NO. 324 OF 2022
CRIME NO.09/2016 OF VACB, WAYANAD, WAYANAD
FOR QUASHING ALL PROCEEDINGS IN C.C. NO.4/2021
(VC/9/2016/VACB/WAYANAD AS AGAINST THE PETITIONER ON THE FILE OF THE
COURT OF ENQUIRY COMMISSIONER SPECIAL JUDGE, THALASSERY)
PETITIONER/ACCUSED NO.1
1 ELDHO.P.U.
AGED 55 YEARS
PRESIDENT,NELLULPADAKA
SAMITHI,KOROME,THONDARNAD,PATTUPULAYIL HOUSE,
KOLLIKKANDAM, POST MAKKIYAD,
WAYANAD DISTRICT,KERALA., PIN - 670731
BY ADV T.ASAFALI
RESPONDENTS/STATE & THE COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 DY.S.P.
VIGILANCE & VIGILANCE AND ANTI CORRUPTION BUREAU,
WAYANAD UNIT, MENANGADI POST WAYANAD DISTRICT., PIN - 673591
3 A.M.SANKARAN MASTER
EAZHI HOUSE, POROLOM,POST KUNHOM,
WAYANAD DISTRICT., PIN - 670644
BY ADVS.
SRI.A. RAJESH, SPL.PP (VIGILANCE)
SMT.REKHA S., SR.PP
2024:KER:72468
O.P.(Crl.) No.324 of 2022
2
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 30.09.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:72468
O.P.(Crl.) No.324 of 2022
3
C. JAYACHANDRAN, J.
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O.P.(Crl.) No.324 of 2022
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Dated this the 30th day of September, 2024
JUDGMENT
The petitioner is the first accused in C.C. No.4/2021 before the Special Court, Thalassery. The offences alleged are under Section 13(1)(d)(i)(ii), read with Section 13(2) of the Prevention of Corruption Act and also under Sections 468, 471 and 120(B) of the Penal Code. The petitioner seeks to quash the Final Report in the above Calendar Case, essentially on the premise that cognizance has been taken by the Special Court, without sanction in terms of Section 19 of the Prevention of Corruption Act ('P.C. Act', for short).
2. The essential facts necessary for the disposal of this Original Petition is to the effect that the petitioner - being the President of the 'Nellulpadaka Samithi', Korome, a Society registered under the Societies Registration Act, 2024:KER:72468 O.P.(Crl.) No.324 of 2022 4 1860 - has obtained an undue pecuniary advantage to the tune of Rs.25 lakhs, out of the subsidy of Rs.55 lakhs obtained from the Government, by conspiring with accused nos.2 and 3, who are Assistant Executive Engineer of the Panchayat concerned and Secretary of the 'Nellulpadaka Samithi' by over estimating the valuation in Ext.P5 certificate.
3. Heard the learned counsel for the petitioner and the learned Special Public Prosecutor (Vigilance). Perused the records.
4. Learned counsel for the petitioner would submit that, admittedly no prosecution sanction has been obtained even at the stage of filing Final Report, as is stated in Ext.P8 Final Report. Therefore, taking cognizance on the basis of the Final Report by the Special Court is nothing but illegal, in the absence of sanction under Section 19 of the P.C. Act. Learned counsel would point out that, for a Society registered under the Societies Registration Act, the Board of Governors of the Society is 2024:KER:72468 O.P.(Crl.) No.324 of 2022 5 the competent authority to grant sanction, since the Board is empowered to remove the President from his post. On merits, learned counsel would submit that there is no material, whatsoever, to show the conspiracy, or the over estimation in the valuation in Ext.P5 or with respect to any other offences alleged under the Penal Code. On such premise, the petitioner seeks the Final Report to be quashed.
5. Learned Special Public Prosecutor (Vigilance) would submit that an application for sanction was preferred before the Governing Board, which was not acted upon at all. It was submitted that it is unlikely that the Board of Governors would accord sanction for prosecution, the petitioner being the President of the Society. Learned Public Prosecutor would also submit that, by virtue of an amendment in the Kerala Co-operative Societies Act, it is the Registrar of the Co-operative Societies, who is the competent authority to grant sanction in respect of a Co-operative Society. Learned 2024:KER:72468 O.P.(Crl.) No.324 of 2022 6 Public Prosecutor would hasten to add that by virtue of a judgment of a learned Single Judge of this Court in Indian Coffee Board Workers Co-operative Society Ltd No.4227, Thrissur and another v. State of Kerala and others [2017 KHC 609], a Society registered under the Societies Registration Act is deemed to be a Co-operative Society, wherefore the competent authority for grant of sanction in the case of Co-operative Society would be the competent authority in cases where a Society is registered under the Societies Registration Act.
6. Having heard the learned counsel appearing for the respective parties, this Court is not intending to deal with the contention on merits, since it is too premature at this stage to undertake that exercise. So also, this Court does not intend to make any observations with respect to the submissions of the learned Special Public Prosecutor as regards the competent authority to grant sanction in the case of the petitioner. This Court will confine itself to the question of sanction. All what is required to be noticed 2024:KER:72468 O.P.(Crl.) No.324 of 2022 7 is the fact that cognizance in C.C. No.4/2021 has been taken by the Special Court, admittedly without any sanction under Section 19 of the P.C. Act. The language employed by Section 19 affords a peremptory interdict for taking cognizance, except with the previous sanction of the competent authority, wherefore the instant cognizance taken cannot be countenanced in law. In the circumstances, cognizance taken in C.C. No.4/2021 of the Special Court, Thalassery is declared to be illegal and the petitioner is accordingly discharged from the allegations leveled in the Final Report. However, in terms of the judgment of the Hon'ble Supreme Court in State of Mizoram v. Dr.C.Sangnghina [2018 KHC 6867], it will be open for the investigating agency to file fresh/supplementary charge sheet after obtaining valid sanction, which dictum was followed by a learned Single Judge of this Court in Prince Mathew and others v. State of Kerala and others [2020 KHC 5391]. It is also clarified that the petitioner will be at liberty to challenge 2024:KER:72468 O.P.(Crl.) No.324 of 2022 8 the sanction or further proceedings if any taken, in accordance with law.
The Original Petition (Criminal) is allowed as indicated above.
Sd/-
C. JAYACHANDRAN JUDGE SKP/30-09 2024:KER:72468 O.P.(Crl.) No.324 of 2022 9 APPENDIX OF OP(CRL.) 324/2022 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED S BY THE DISTRICT REGISTRAR,WAYANAD, TO THE SOCIETY HEADED BY THE PETITIONER EXHIBIT P2 TRUE COPY OF THE G.O.(RT.)NO.2139/2012/AD DT.30-10-2012.
EXHIBIT P3 MEMORANDUM OF UNDERSTANDING EXECUTED BETWEEN THE NELLULPAPDHAKASAMITHI HEADED BY THE PETITIONER AND THE DIRECTOR,DIRECTOR OF AGRICULTURE,GOVT. OF KERALA.
EXHIBIT P4 TRUE COPY OF THE ORDER VIDE G.O. (RT.)NO.823/2013/AD DT.10-5-2013 ISSUED BY THE DEPARTMENT OF AGRICULTURE(PA) EXHIBIT P5 TRUE COPY OF THE VALUATION REPORT WITH VALUATION CERTIFICATE, ISSUED BY A.BAIJU, THE ASST.ENGINEER,L.S.G.D.MANANTAVADY.
EXHIBIT P6 CERTIFIED COPY OF THE FIR NO.VC NO.9//2016WYD.
EXHIBIT P7 TRUE COPY OF THE LETTER DT 1-1-2020 VIDE NO.C(VC-09/16/WYD)9713/16/NRK EXHIBIT P8 CERTIFIED COPY OF THE FINAL REPORT FILED AGAINST THE PETITIONER BEFORE THE SPECIAL VIGILANCE COURT,THALASSERRY.
EXHIBIT P9 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT MADE INK.M.PHILIP AND ANTHER VS STATE OF KERALA VIDE CRL.M.C.NO.5604/2019 EXHIBIT P10 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT MAD IN MADE IN SONY SEBASTIAN AND OTHERS VS STATE OF KERALA VIDE COMMON JUDUGMENT RENDERED IN OP(CRL.) NO.21/2020 & OP(CRL.) NO.476/2021.
EXHIBIT P11 CERTIFIED COPY OF THE ORDER DT.25TH DAY OF APRIL 2022 MADE IN CMP NO.90/2022 IN CC 2024:KER:72468 O.P.(Crl.) No.324 of 2022 10 NO.04/2021 ON THE FILE OF THE SPECIAL VIGILANCE COURT,THALASSERRY.
RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A. TO JUDGE