Kerala High Court
K.M.Reghuladharan vs The Deputy Superintendent Of ... on 1 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942
Crl.Rev.Pet.No.1212 OF 2019
AGAINST THE ORDER/JUDGMENT IN CMP.No.371/17 in C.C.No.
136/2016 ON THE FILES OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
KANNUR AT THALASSERY DATED 16.10.2019.
REVISION PETITIONER/ACCUSED:
K.M.REGHULADHARAN
AGED 57 YEARS
S/O.SANKARAN NAIR, SUB REGISTRAR, SUB REGISTRAR
OFFICE, KANNUR, RESIDING AT KUNHIVEEDU, MUNDAYAD
AMSOM, NEAR ELAYAVOOR PANCHAYATH OFFICE,
CHOVVA.P.O., KANNUR.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENTS/STATE AND COMPLAINANT:
1 THE DEPUTY SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTI CORRUPTION BUREAU, KANNUR-
670003.
2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
3 SHAJI AKKARAMMAL,
AGED 39 YEARS, S/O.JANARDHANAN, TRIVENI,
PODIKUNDU, PALLIKKUNNU.P.O., KANNUR-670004.
SRI A RAJESH SPL PP VACB
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 25.01.2021, THE COURT ON 01.02.2021 PASSED THE FOLLOWING:
Crl.R.P.No.1212 of 2019
2
"C.R"
R. NARAYANA PISHARADI, J
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Crl.R.P.No.1212 of 2019
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Dated this the 1st day of February, 2021
ORDER
The revision petitioner is the accused in the case
C.C.No.136/2016 pending in the Court of the Enquiry
Commissioner and Special Judge, Thalassery.
2. The offences alleged against the petitioner are under
Sections 7 and 13(1)(d) read with 13(2) of the Prevention of
Corruption Act, 1988 (for short 'the Act').
3. The prosecution case is as follows: The petitioner was
the Sub Registrar in the Sub Registrar's Office, Kannur. On
11.10.2011 and 08.11.2011, he demanded an amount of
Rs.1,000/- as bribe from one Shaji for registration of a gift deed.
On 09.11.2011, at 11:25 hours, he demanded and accepted an
amount of Rs.1,000/- as bribe from Shaji at the Sub Registrar's
Office, Kannur as a motive or reward for doing his official act and
thereby he abused his position as a public servant and committed
misconduct.
Crl.R.P.No.1212 of 2019
4. After completing the investigation of the case, final
report against the petitioner was filed in the Special Court. The
Special Court took cognizance of the offences against the petitioner
and on 21.05.2016, framed charge against him for the offences
mentioned earlier.
5. After framing the charge against him by the trial court,
the petitioner filed an application for discharge under Section 239
of the Code of Criminal Procedure, 1973 (for short 'the Code') in
the trial court.
6. As per the order dated 16.10.2019, the trial court
dismissed the application for discharge filed by the petitioner.
Aggrieved by that order, the petitioner has filed this revision
petition.
7. Heard learned counsel for the petitioner and also the
learned Public Prosecutor.
8. The petitioner has raised several grounds in the revision
petition to challenge the order of the trial court dismissing the
application for discharge. But, at the time of hearing, learned
counsel for the petitioner has raised only one contention, that is,
with regard to the incompetency of the authority who accorded
Crl.R.P.No.1212 of 2019
sanction for prosecution.
9. Learned counsel for the petitioner has pointed out that
the Inspector General of Registration has accorded sanction for
prosecution against the petitioner. According to the learned
counsel, the authority competent to grant sanction for prosecution
against the petitioner is the Commissioner and Secretary of the
Vigilance Department and not the Inspector General of
Registration. It is contended that sanction for prosecution against
the petitioner is granted by an authority which is not compentent
to grant it. Learned counsel for the petitioner has, therefore,
contended that cognizance of the offences taken by the trial court
with the previous sanction of an authority, which is incompetent to
grant it, is bad in law and a nullity and that the petitioner is
entitled to be discharged.
10. Per contra, learned Public Prosecutor has contended that
the authority competent to remove the petitioner from his office is
the Inspector General of Registration and therefore, the sanction
for prosecution granted against the petitioner is in accordance with
the provision contained under Section 19(c) of the Act.
11. The petitioner was in service as a Sub Registrar in the
Registration Department at the time of commission of the offences
Crl.R.P.No.1212 of 2019
alleged against him. There is no dispute with regard to the fact
that he was then a public servant within the meaning of Section
2(c) of the Act. The sanction for prosecution against the petitioner
is granted by the Inspector General of Registration.
12. Section 19(1) of the Act (as it stood before the
amendment by Act 16 of 2018) read as follows:
"19. Previous sanction necessary for prosecution.--
(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 previous 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 save 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."
13. The petitioner was not a public servant coming under the
purview of clause (a) of Section 19(1) of the Act. He was a public
servant who was employed in connection with the affairs of the
State. In respect of a public servant employed in connection with
affairs of the State, who is not removable from his office save by
Crl.R.P.No.1212 of 2019
or with the sanction of the State Government, such Government
shall be the authority to grant sanction for prosecution. But, the
petitioner was not a person removable from his office by or with
the sanction of the State Government. The petitioner has got no
case that he was removable from his office only by or with the
sanction of the State Government. Therefore, he was not a public
servant coming within clause (b) of Section 19(1) of the Act and
the State Government is not the authority competent to grant
sanction for prosecution against him. As per Clause (c) of Section
19(1) of the Act, in case of any person, other than a person who
comes under the purview of clauses (a) and (b) of Section 19(1),
the authority competent to grant sanction for prosecution against
him is the authority competent to remove him from his office.
There is no dispute raised by the petitioner with regard to the fact
that the Inspector General of Registration is the authority
compentent to remove him from his office. Therefore, the
Inspector General of Registration is the authority competent under
clause (c) of Section 19(1) of the Act to grant sanction for
prosecution against the petitioner.
14. The contention of the learned counsel for the petitioner is
that the Commissioner and Secretary (Vigilance) is the authority
Crl.R.P.No.1212 of 2019
competent to grant sanction for prosecution against the petitioner.
This contention is based on the Notification issued by the State
Government as G.O.(Ms) No.169/94/GAD dated 23.4.1994
amending the Rules of Business and empowering the Vigilance
Department to deal with cases of issuance of orders sanctioning
prosecution of public servants under the Code of Criminal
Procedure, 1973 and the Prevention of Corruption Act, 1988.
15. The aforesaid amendment of the Rules of Business came
into effect on 23.04.1994. The Explanatory Note to the
abovementioned Notification states that, as on 23.4.1994, there
were no specific Government Orders authorising the Commissioner
and Secretary (Vigilance) to issue orders of suspension or sanction
for prosecution against the public servants in cases investigated by
the Vigilance Department under the provisions of the Prevention of
Corruption Act and the relevant provisions of the Indian Penal
Code and that the Government decided that this power should be
given specifically to the Commissioner and Secretary (Vigilance)
and the Notification was intended to achieve that object. The Rules
of Business, as amended with effect from 23.4.1994, can be
applicable only to cases in which sanction has to be accorded by
the State Government under clause (b) of Section 19(1) of the
Crl.R.P.No.1212 of 2019
Act. Amendment of the Rules of Business, as per the Notification
issued by the State Government as G.O.(Ms) No.169/94/GAD
dated 23.4.1994, does not in any manner affect the power of the
competent authority under clause (c) of Section 19(1) of the Act.
The Rules of Business of the State Government cannot override
the provisions contained in Section 19(1) of the Act.
16. The decisions of this Court in State of Kerala v.
Sugathakumar (1999 (1) KLT 443) and Appukuttan Nair v.
State of Kerala (2002 (1) KLT 801), which have been referred
to by the learned counsel for the petitioner, do not lay down any
proposition that, after the date 23.04.1994, the Commissioner and
Secretary (Vigilance) is the sole authority who is competent to
grant sanction for prosecution against a public servant under
clause (c) of Section 19(1) of the Act.
17. Learned counsel for the petitioner has also referred to
the decision of the Apex Court in P.A.Mohandas v. State of
Kerala [(2003) 9 SCC 504] in support of his contention that,
after the date 23.04.1994, the Commissioner and Secretary
(Vigilance) is the only authority who is competent to grant
sanction for prosecution against a public servant who was
employed by the State Government.
Crl.R.P.No.1212 of 2019
18. In Mohandas (supra), the Apex Court has stated as
follows:
"Under Section 19 of the Act no Court can 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 of the Authority competent to
remove the person concerned. In the case in
hand, the Secretary (Vigilance) appears to have
accorded sanction to prosecute. The appellants
case is that the Secretary (Vigilance) was
authorised to grant sanction only on 23.4.1994
and there is no order of the State Government
making the Secretary (Vigilance) competent to
accord sanction prior to the said date. The learned
counsel appearing for the State is not in a position
to refute the aforesaid contention and, in fact, is
not able to produce any document which confers
power on the Secretary (Vigilance) to accord
sanction prior to 23.4.1994. The sanction in the
present case being prior to the aforesaid date, the
date on which the sanction appears to have been
given, the concerned Authority had no jurisdiction
and, therefore, there is an embargo on the court's
power to take cognizance for non-compliance of
Section 19 of the Act".
19. The decision in Mohandas (supra) is an authority only
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for the proposition that, before the date 23.04.1994, the
Secretary (Vigilance) was not competent to grant sanction for
prosecution against a public servant under Section 19 of the Act.
Moreover, the aforesaid decision does not indicate that the Apex
Court was dealing with a question of granting sanction under
clause (c) of Section 19(1) of the Act.
20. Sub-section (2) of Section 19 of the Act provides that,
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
authority, such sanction shall be given by that Government or
authority which could have been competent to remove the public
servant from his office at the time when the offence was alleged to
have been committed. In the instant case, the Inspector General of
Registration was the authority which could have been competent to
remove the petitioner from his office at the time when the offences
were alleged to have been committed. Therefore, the order of the
trial court taking cognizance of the offences against the petitioner
with the previous sanction of the Inspector General of
Registration, cannot be found to be invalid or a nullity. The
petitioner is not entitled to be discharged on such a ground.
Crl.R.P.No.1212 of 2019
21. The discussion above leads to the conclusion that there
is no sufficient ground to interfere with the impugned order passed
by the trial court by invoking the revisional jurisdiction of this
Court.
Consequently, the revision petition is dismissed.
Sd/-
R. NARAYANA PISHARADI
JUDGE
lsn
Crl.R.P.No.1212 of 2019
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE I COPY OF THE FINAL REPORT
ANNEXURE II COPY OF SANCTION ORDER EI-25827/11 DATED
25.1.14.
ANNEXURE III COPY OF THE NOTIFICATION CONFERRING POWER
TO COMMISSIONER AND SECRETARY DATED
23.4.1994.
ANNEXURE IV TRUE COPY OF THE GIFT DEED DATED
11.10.2011.
ANNEXURE V COPY OF THE CIRCULAR NO.12/65.
ANNEXURE VI TRUE COPY OF THE ORDER OF THE ENQUIRY
COMMISSIONER AND SPECIAL JUDGE,
THALASSERY, DATED 16.10.2019.
RESPONDENTS EXHIBITS : NIL
True Copy
P.A.To Judge
lsn
