Kerala High Court
Ajas M.M vs State Of Kerala on 19 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942
OP(Crl.).No.565 OF 2018
AGAINST THE F.I.R NO.4/2018 OF VIGILANCE AND ANTI-CORRUPTION
BUREAU, KOZHIKODE
PETITIONER/ACCUSED NO.6:
AJAS M.M.
AGED 49 YEARS
S/O M.C.MUHAMMAD
MUSLIARAKATH HOUSE
KOODARANHI P.O KOZHIKODE DISTRICT-673604
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.S.K.SAJU
SRI.THOMAS P.KURUVILLA
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF
KERALA ERNALULAM
2 THE DEPUTY SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTI CORRUPTION BUREAU, KOZHIKODE
3 SRI. BASHEER,
S/O. ABDURAHIMAN, PUTHIYATTUKUNDIL HOUSE,
KOORMABARA P.O, KOZHIKODE DISTRICT PIN 673 604
R3 BY ADV. SRI.P.B.KRISHNAN
R3 BY ADV. SRI.SABU GEORGE
SRI A RAJESH SPL PP VACB
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 17-02-2021,
THE COURT ON 19-02-2021 DELIVERED THE FOLLOWING:
O.P.(Crl) No.565/2018
2
R.NARAYANA PISHARADI, J
************************
O.P.(Crl) No.565 of 2018
-----------------------------------------------
Dated this the 19th day of February, 2021
JUDGMENT
The petitioner is the sixth accused in the case registered as
V.C.No.4/2018 by the Vigilance and Anti-Corruption Bureau
(VACB), Kozhikode.
2. The third respondent filed Ext.P7 complaint in the
Court of the Enquiry Commissioner and Special Judge, Kozhikode
against six persons, including the petitioner. The offences
allegedly committed by the accused are not mentioned in Ext.P7
complaint with specific reference to the penal provisions.
3. Accused 1 to 4 were persons who were working as
Geologist in the Mining and Geology Office, Kozhikode. The fifth
accused was the Director of Mining and Geology. The petitioner,
the sixth accused in the case, is a private person. He is the
Managing Partner of the firm M/s.Poonoorpoyil Granites.
O.P.(Crl) No.565/2018
4. It is not necessary here to narrate in detail the
allegations contained in Ext.P7 complaint. Suffice it to state that
the crux of the allegations in the complaint is that accused 1 to 5
had entered into a criminal conspiracy with the sixth accused and
pursuant to such conspiracy, they had allowed the sixth accused
to extract granite stones excess in quantity from excess area of
land in violation of the terms of the lease granted to him.
5. On receiving the complaint, the Special Court
forwarded it to the Dy.S.P, VACB, Kozhikode for quick verification
and report. The Inspector of Police, VACB, who was authorised
by the Dy.S.P to conduct the preliminary enquiry, conducted the
enquiry and filed Ext.P8 report, which only contained
recommendation of departmental action against T.Mohanan (A1),
the Senior Geologist.
6. The learned Special Judge considered the preliminary
enquiry report and the allegations in the complaint and came to
the conclusion that the available materials were, prima facie,
sufficient to presume commission of an offence under Section
13(1)(d) read with 13(2) of the Prevention of Corruption Act (for
O.P.(Crl) No.565/2018
short 'the Act') by the officers of the Geology Department and a
detailed investigation is necessary in the case. Accordingly, the
learned Special Judge passed Ext.P9 order, forwarding the
complaint to the Dy.S.P, VACB, Kozhikode under Section 156(3)
of the Code of Criminal Procedure, 1973 (for short 'the Code') for
investigation.
7. Accordingly, Ext.P10 F.I.R was registered against
accused 1 to 6 by the VACB, Kozhikode under Section 13(1)(d)
read with 13(2) of the Act.
8. This original petition is filed under Article 227 of the
Constitution of India by the petitioner seeking the relief of
quashing Ext.P7 complaint, Ext.P9 order and Ext.P10 F.I.R.
9. Heard learned counsel for the petitioner and the
learned Public Prosecutor and also the learned counsel for the
third respondent.
10. All persons arrayed as accused in the complaint, except
the petitioner, are public servants. On receiving the complaint
and after obtaining the preliminary enquiry report, the learned
Special Judge could not have forwarded the complaint under
O.P.(Crl) No.565/2018
Section 156(3) of the Code for investigation, in the absence of
any sanction under Section 19(1) of the Act obtained by the
complainant.
11. Section 19(1) of the Act (as it stood before the
amendment by Act 16 of 2018) provided 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 of the competent authority.
12. In Anil Kumar v. Aiyappa : (2013) 10 SCC 705, the
Apex Court has held as follows:
"When a Special Judge refers a complaint for
investigation under Section 156(3) Cr.P.C,
obviously, he has not taken cognizance of the
offence and, therefore, it is a pre-cognizance
stage and cannot be equated with post cognizance
stage. ....... We may now examine whether, in the
above mentioned legal situation, the requirement
of sanction is a pre-condition for ordering
investigation under Section 156(3) Cr.P.C even at
a pre-cognizance stage. ...... Once it is noticed
that there was no previous sanction, as already
indicated in various judgments referred to
O.P.(Crl) No.565/2018
hereinabove, the Magistrate cannot order
investigation against a public servant while
invoking powers under Section 156(3) Cr.P.C".
13. Having regard to the ratio of the judgment in Anil
Kumar (supra), in Narayana Swamy v. State of Karnataka
(AIR 2016 SC 4125), the Apex Court held that an order
directing further investigation under Section 156(3) of the Code
cannot be passed in the absence of valid sanction under Section
19(1) of the Act.
14. In Manju Surana v. Sunil Arora : (2018) 5 SCC
557, the question that was considered was whether prior
sanction for prosecution against a public servant was required
before setting in motion even the investigative process under
Section 156(3) of the Code. The Apex Court referred the question
to be decided by a Larger Bench.
15. A Division Bench of this Court, in Muhammed v. State
of Kerala : 2019 (1) KHC 239: 2019 (1) KLT 156, has held
that until a final decision is taken in the reference in Manju
Surana (supra), the dictum laid down in Anil Kumar (supra)
O.P.(Crl) No.565/2018
would hold the field.
16. Therefore, as per the law as it stood at the time when
the learned Special Judge passed Ext.P9 order and as it stands
now, a complaint filed against a public servant alleging
commission of an offence specified in Section 19(1) of the Act
cannot be forwarded by the court under Section 156(3) of the
Code for investigation in the absence of sanction under Section
19(1) of the Act obtained by the complainant.
17. In Ext.P9 order, the learned Special Judge has relied
upon the decision of this Court in Maneesh v. State of Kerala :
2016 (1) KHC 96 : 2016 (1) KLT 323 and observed that
previous sanction is not necessary for ordering investigation in
exercise of the power under Section 156(3) of the Code. In the
light of the decision of the Division Bench of this Court in
Muhammed (supra), the view taken by the Single Bench of this
Court in Maneesh (supra) cannot be followed.
18. Learned Special Judge could not have taken cognizance
of the offences under the Act in the absence of sanction under
O.P.(Crl) No.565/2018
Section 19(1) of the Act. The provision contained in Section
19(1) of the Act is couched in mandatory terms and forbids the
court from taking cognizance of any offence mentioned therein
against a public servant except with the previous sanction of the
competent authority. Grant of sanction by the competent
authority under Section 19(1) of the Act is a sine qua non for
taking cognizance of the offence. The language employed in sub-
section (1) of Section 19 admits of no equivocation and operates
as a complete and absolute bar to any Court taking cognizance of
any offence mentioned therein against a public servant except
with the previous sanction of the competent authority (See
Nanjappa v. State of Karnataka : AIR 2015 SC 3060).
19. In the instant case, as already found, in view of the
decision in Anil Kumar (supra), in the absence of sanction under
Section 19(1) of the Act, the learned Special Judge could not
have forwarded the complaint under Section 156(3) of the Code
for investigation. In view of the bar under Section 19(1) of the
Act, he could not have taken cognizance of the offences under
the Act and proceeded further. In such circumstances, even
O.P.(Crl) No.565/2018
assuming that the allegations in the complaint and the findings in
the vigilance enquiry report, prima facie, disclosed commission of
offences under the Act by the accused persons, the learned
Special Judge could not have acted upon such complaint without
any sanction under Section 19(1) of the Act.
20. Section 19 of the Act has undergone changes by virtue
of the amendment of the Act which came into effect from
26.07.2018. The newly introduced first proviso to Section 19(1)
of the Act states that, no request can be made by a person,
other than a police officer or an officer of an investigating agency
or other law enforcement authority, to the Government or the
competent authority for previous sanction for taking cognizance
by the court of any of the offences specified in that provision
unless such person has filed a complaint in a competent court
about the alleged offences for which the public servant is sought
to be prosecuted and the court has not dismissed the complaint
under Section 203 of the Code and directed the complainant to
obtain sanction for prosecution against the public servant for
O.P.(Crl) No.565/2018
further proceeding. The second proviso to Section 19(1) of the
Act states that, in case of any request from any such person, the
Government or the competent authority shall not accord sanction
to prosecute a public servant without providing an opportunity of
being heard to the concerned public servant.
21. Therefore, after the amendment of Section 19(1) of the
Act, in order to get sanction for prosecution, a private person has
to satisfy two conditions. The first condition is that he should
have filed a complaint in the competent court alleging the
offences for which the public servant is sought to be prosecuted.
The second condition is that the court has not dismissed such
complaint under Section 203 of the Code but directed him to
obtain sanction for prosecution against the public servant. In
such a situation, the law now also provides an opportunity to the
public servant concerned of being heard in the matter of granting
sanction for prosecution.
22. In the instant case, Ext.P9 order passed by the
learned Special Judge, forwarding the complaint under Section
O.P.(Crl) No.565/2018
156(3) of the Code for investigation, is liable to be quashed in
the absence of any sanction under Section 19(1) of the Act
obtained and produced by the third respondent before the court.
Once Ext.P9 order is quashed, it would mean that Ext.P10 F.I.R
registered pursuant to such order and all further proceedings
based on Ext.P10 F.I.R would also become non-est.
23. However, in exercise of the powers under Article 227
of the Constitution of India, the complaint filed by the third
respondent in the court below cannot be quashed, especially in
the absence of any order passed by the court below taking
cognizance of the offences on the basis of the allegations in the
complaint.
24. Quashing of Ext.P9 order will result in restoring the
complaint to the file of the Special Court. In view of the
amendment of Section 19(1) of the Act noticed earlier, it is for
the Special Court to decide what further action should be taken
by it on the complaint.
25. I have consciously refrained from discussing the
merits of the allegations contained in Ext.P7 complaint lest it may
O.P.(Crl) No.565/2018
cause prejudice to the parties in the further proceedings before
the court below.
26. Consequently, the petition is allowed in part and
Ext.P9 order passed by the Court of the Enquiry Commissioner
and Special Judge, Kozhikode is set aside. Ext.P7 complaint shall
stand restored to the file of the court below. Learned Special
Judge shall pass appropriate orders on the complaint in
accordance with law. It is made clear that this Court has not
expressed any opinion on the merits of the allegations contained
in Ext.P7 complaint.
All pending interlocutory applications are closed.
(sd/-)
R.NARAYANA PISHARADI, JUDGE
jsr
O.P.(Crl) No.565/2018
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PARTNERSHIP DEED DATED
05-07-1996
EXHIBIT P2 TRUE COPY OF THE ASSIGNMENT DEED
BEARING NO. 2307/1996 DATED 19-06-21996
EXECUTED BY SRI. PAUL
EXHIBIT P2(a) TRUE COPY OF THE ASSIGNMENT DEED NO.
2308/1996 DATED 19-06-1996 EXECUTED BY
SRI. PAUL.
EXHIBIT P2(b) TRUE COPY OF THE ASSIGNMENT DEED NO.
2309/1996 DATED 19-06-1996 EXECUTED BY
SRI. PAUL.
EXHIBIT P2(c) TRUE COPY OF THE ASSIGNMENT DEED NO.
2516/1996 DATED 19-06-1996 EXECUTED BY
SRI. PAUL.
EXHIBIT P2(d) TRUE COPY OF THE ASSIGNMENT DEED NO.
25171996 DATED 19-06-1996 EXECUTED BY
SRI. PAUL.
EXHIBIT P2(e) TRUE COPY OF THE ASSIGNMENT DEED NO.
2518/1996 DATED 19-06-1996 EXECUTED BY
SRI. PAUL.
EXHIBIT P3 TRUE COPY OF THE LEASE DEED NO.
3703/2008 OF KOZHIKODE SUB REGISTRY
EXHIBIT P4 TRUE COPY OF THE CERTIFICATE OF
REGISTRATION DATED 27-03-2008
EXHIBIT P5 TRUE COPY OF THE CIRCULAR DATED 20-05-
2009 ISSUED BY DIRECTOR OF MINING AND
GEOLOGY
O.P.(Crl) No.565/2018
EXHIBIT P6 TRUE COPY OF THE REPORT DATED 21-02-
2018 SUBMITTED BY DIRECTOR OF MINING
AND GEOLOGY
EXHIBIT P7 TRUE COPY OF THE COMPLAINT DATED 12-01-
2018 FILED BY THE COMPLAINANT 3RD
RESPONDENT BEFORE THE LEARNED ENQUIRY
COMMISSIONER AND SPECIAL JUDGE,
KOZHIKODE
EXHIBIT P8 TRUE COPY OF THE QUICK VERIFICATION
REPORT DATED 26-03-2018 SUBMITTED BY
THE DEPUTY SUPERINTENDENT OF POLICE
VACP,KOZHIKODE
EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 15-05-
2018 PASSED BY THE LEARNED ENQUIRY
COMMISSIONER AND SPECIAL JUDGE,
KOZHIKODE IN C.M.P NO. 24/2018
EXHIBIT P10 TRUE COPY OF THE FIR DATED 25-05-2018
REGISTERED BY THE VACB, KOZHIKODE AS
V.C NO. 04/2018
EXHIBIT P11 TRUE COPY OF THE ORDER DATED 20-05-2009
BEARING NO. 4836/M3/2005 ISSUED BY THE
DIRECTOR OF MINING AND GEOLOGY
EXHIBIT P12 TRUE COPY OF THE LETTER DATED 12-01-
2015 ISSUED BY THE THAHSILDAR KOZHIKODE
TO THE GEOLOGIST
EXHIBIT P13 TRUE COPY OF THE COUNTER AFFIDAVIT
DATED 26-09-2018 SUBMITTED DIRECTOR OF
MINING AND GEOLOGY IN WPC NO. 12276/2018
EXHIBIT P14 TRUE COPY OF THE REPORT DATED 06-02-
2018 SUBMITTED BY THE INVESTIGATING
OFFICER IN O.P(CRL.) 132/2017
EXHIBIT P15 TRUE COPY OF THE STATEMENT DATED 06-02-
2018 SUBMITTED BY THE INVESTIGATING
OFFICER IN O.P(CRL.) 132/2017
O.P.(Crl) No.565/2018
EXHIBIT P16 TRUE COPY OF THE JUDGMENT DAT3ED 08-02-
2018 IN OP(CRL.) NO. 132/2017
EXHIBIT P17 TRUE COPY OF THE FINAL REPORT IN CRIME
NO. 28/2017 OF MUKKOM POLICE STATION,
KOZHIKODE
EXHIBIT P18 TRUE COPY OF THE GAZETTE NOTIFICATION
BEARING
NO.275 DATED 19.03.2002
EXHIBIT P19 TRUE COPY OF THE GAZETTE NOTIFICATION
BEARING NO.89 DATED 10.01.2008
EXHIBIT P20 TRUE COPY OF THE LETTER DATED
20.10.2014 ISSUED BY THE GEOLOGIST TO
THE TALUK SURVEYOR
EXHIBIT P21 TRUE COPY OF THE REPORT DATED
12.01.2015 ISSUED BY THE TAHSILDAR TO
THE DISTRICT GEOLOGIST
EXHIBIT P22 TRUE COPY OF THE CHALLAN DATED
25.03.2015 EVIDENCING PAYMENT OF
RS.54,500/-
2ND RESPONDENTS'
EXHIBITS :
EXHIBIT R2(a) TRUE COPY OF THE SURVEY SKETCH.
3RD RESPONDENTS'
EXHIBITS :
EXHIBIT-R3(a) A TRUE COPY OF THE PROCEEDINGS DATED
17-6-2008 OF THE DIRECTOR OF MINING AND
GEOLOGY
O.P.(Crl) No.565/2018
EXHIBIT-R3(b) A TRUE COY OF THE REPORT NO.SC-
58/2014/KKD DATED NIL-9-2014.
EXHIBIT-R3(c) A TRUE COPY OF THE LETTER
NO.E12(SC58/2014/KKD 16249/2014 DATED
17-8-2015 ISSUED BY THE DIRECTOR OF
VIGILANCE AND ANTI CORRUPTION BUREAU TO
THE ADDL.CHIEF SECRETARY TO GOVERNMENT,
VIGILANCE DEPARTMENT.
EXHIBIT-R3(d) A TRUE COPY OF LETTER NO.21239/A1/15/ID
DATED 26-9-2015 ISSUED BY THE PRINCIPAL
SECRETARY TO THE GOVERNMENT, INDUSTRIES
DEPARTMENT.
EXHIBIT-R3(e) A TRUE COPY OF LETTER NO.10484/M.4/2015
DATED 5-11-2015 ISSUED BY THE DIRECTOR
OF MINING AND GEOLOGY.
EXHIBIT-R3(f) A TRUE COPY OF LETTER
NO.D.O.Z/M.2108/16 DATED 3-11-2016
ISSUED BY THE SENIOR GEOLOGIST TO THE
DIRECTOR OF MINING AND GEOLOGY, ACCUSED
NO.5
EXHIBIT-R3(g) A TRUE COPY OF THE SITE INSPECTION
REPORT DATED 2-11-2016 PREPARED BY THE
THEN SENIOR GEOLOGIST, ACCUSED NO.1
EXHIBIT-R3(h) A TRUE COPY OF LETTER
NO.D.O.Z/M.2265/16 DATED 15-12-2016
ISSUED BY THE THEN SENIOR GEOLOGIST,
ACCUSED NO.1.
EXHIBIT-R3(i) A TRUE COPY OF LETTER
NO.D.O.Z/M.2388/16 DATED 21-12-2016
ISSUED BY THE THEN SENIOR GEOLOGIST,
ACCUSED NO.1
EXHIBIT-R3(j) A TRUE COPY OF LETTER
NO.D.O.Z/M.2216/2015 DATED 6-3-2017
ISSUED BY THE THEN SENIOR GEOLOGIST,
ACCUSED NO.1.
O.P.(Crl) No.565/2018
EXHIBIT-R3(k) A TRUE COPY OF LETTER
NO.D.O.NO.21239/A1/2015/1D DATED 11-8-
2017 ISSUED BY THE UNDER SECRETARY,
INDUSTRIES (A) DEPARTMENT.
EXHIBIT-R3(l) A TRUE COPY OF LETTER NO.10484/M4/2015
DATED 15-11-2017 ISSUED BY ACCUSED NO.5
TO ACCUSED NO.1
EXHIBIT-R3(m) A TRUE COPY OF REPORT
NO.D.O.Z/M.2216/2015 DATED 4-12-2017
SUBMITTED BY ACCUSED NO.1.
EXHIBIT-R3(n) A TRUE COPY OF NOTICE DATED 6-12-2017
ISSUED BY ACCUSED NO.1 TO THE
PETITIONER.
EXHIBIT-R3(o) A TRUE COPY OF REPLY DATED 20-12-2017
SUBMITTED BY THE PETITIONER TO THE THEN
SENIOR GEOLOGIST, ACCUSED NO.1.
EXHIBIT-R3(p) A TRUE COPY OF THE JUDGMENT DATED 24-
05-2018 IN W.P.(C) NO.4974 OF 2017
EXHIBIT-R3(q) A TRUE COPY OF THE SATELLITE MAP
OBTAINED THROUGH GOOGLE MAPS IN 2018
HAVING PERIMETER 924M.
EXHIBIT-R3(r) A TRUE COPY OF THE APPLICATION DATED
10/7/2018 SUBMITTED BY THE PETITIONER.
EXHIBIT-R3(s) A TRUE COPY OF THE QUARRYING PERMIT
DATED 5-9-2018 ISSUED BY THE SENIOR
GEOLOGIST.
True copy
PS to Judge
