Kerala High Court
T O Sooraj vs State Of Kerala on 23 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
WP(C) NO. 12672 OF 2021
PETITIONER:
T O SOORAJ
AGED 62 YEARS
S/O. OSMAN KHAN, RESIDING AT B5, KENT,
NAALLUKETTU, ERNAKULAM-682 028
BY ADVS.
S.SREEKUMAR (SR.)
M.A.MOHAMMED SIRAJ
RESPONDENTS:
1 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN-682 031
2 THE DEPUTY SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTI CORRUPTION BUREAU, ERNAKULAM,
PIN-682 031
BY ADVS.
SRI.T.A.SHAJI, DIRECTOR GENERAL OF PROSECUTIONS
SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR
SHRI.A.RAJESH, SPL.PUBLIC PROSECUTOR, VACB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.07.2021, THE COURT ON 23.07.2021 DELIVERED
THE FOLLOWING:
W.P.(C) No.12672/2021
2
"CR"
R.NARAYANA PISHARADI, J
**********************
W.P.(C).No.12672 of 2021
-------------------------------------
Dated this the 23rd day of July, 2021
JUDGMENT
The petitioner is the fourth accused in the case registered
as V.C.01/2019 by the Vigilance and Anti-Corruption Bureau
(VACB), Ernakulam Unit under Section 13(1)(d) read with 13(2)
of the Prevention of Corruption Act, 1988 (for short 'the Act') and
also under Section 120B of the Indian Penal Code.
2. The facts leading to the registration of the above
criminal case are as follows: The Palarivattom Flyover was
constructed on the National Highway-66 at Palarivattom Junction
in Ernakulam District for reducing the acute traffic congestion
there. The flyover was opened for traffic on 12.10.2016. Within a
few weeks, potholes and hairline cracks appeared on the flyover.
W.P.(C) No.12672/2021
The Minister of Public Works Department, Government of Kerala
sent a communication as letter No.141/M(PWD&R)/2019 dated
03.05.2019 to the Chief Minister of Kerala in which it was alleged
that irregularities had been committed in the construction of the
flyover. The Chief Minister passed an order on this letter to
conduct vigilance enquiry in the matter. As per letter
No.156/E(2)/2019/Vig dated 06.05.2019, the Government of
Kerala ordered the Director, VACB to conduct a vigilance enquiry
in the matter. As per letter No.C-(VE-01/2019/(CRE)14247/ 2019
dated 07.05.2019, the Director, VACB forwarded the same to the
Superintendent of Police, VACB, Central Range, Ernakulam for
conducting the enquiry. As per order No.VE-01/2019/CRE dated
07.05.2019, the Superintendent of Police, VACB directed the
Deputy Superintendent of Police, VACB, Ernakulam Unit to
conduct the enquiry. Since the vigilance enquiry revealed
commission of the offences under Section 13(1)(d) read with
13(2) of the Act and under Section 120B of the I.P.C, Ext.P2 first
information report (FIR) was registered on 03.06.2019 as
W.P.(C) No.12672/2021
V.C.No.01/2019 of the VACB, Ernakulam Unit.
3. The material averments/allegations in Ext.P2 FIR read as
follows:
"The enquiry revealed that Kerala Road Fund
Board (KRFB) was directed by the Government of
Kerala to provide financial assistance for the
implementation of the Palarivattom Fly over at
NH 66 in Ernakulam District during the period
from 2013 to 2017. The work was entrusted to
Roads and Bridges Development Corporation of
Kerala Ltd (RBDCK) under SPEEID Kerala Project
of PWD. M/s Kerala Industrial and Technical
Consultancy Organization Ltd (KITCO) was
appointed as the design and supervision
consultant for the project. Technical sanction for
the work was issued for an amount of Rs.47.70
Crores. The work was awarded to M/s RDS
Project Ltd on Engineering, Procurement and
Construction (EPC) mode. The design and
drawing were prepared by M/s Nagesh
Consultant, Bangalore on behalf of the contractor
and the work was executed as per the drawings
and design approved by the consultant M/s
W.P.(C) No.12672/2021
KITCO Ltd. After the opening of the flyover, within
a few week, damages like potholes are seen. Now
the bridge is closed and the rectification work is
going on as per the supervision of IIT Madras.
The hairline cracks found on the girders and piers
during the inspection as may be due to several
reasons such as improper structure design, lack
of quality of the concrete and lack of proper
supervision of the work. All the agencies involved
in the implementation of the work of the flyover
are responsible for the distress of the flyover. As
part of the vigilance enquiry the documents were
perused, site inspection conducted, and lab
report examined revealed that the work of the
Palarivattom Fly over is a substandard one and
thereby it caused financial loss to the public
exchequer. As financial loss sustained to the
Government exchequer, due to the substandard
work executed, the accused persons ie, A1
Shri.Sumeet Goyal, M.D, RDS Project Ltd
(contractor), A2 M/s Nagesh Consultancy,
Bangalore (Designer), A3 officials of KITCO
(consultant), A4 officials of RBDCK (implementing
agency) and unknown others (A5) are
W.P.(C) No.12672/2021
responsible and it is substantiated in evidence for
it. From the enquiry conducted it is revealed that
A1 to A5 conspired together and as the result of
this conspiracy A3 and A4 abused their official
position as public servant and by corrupt or illegal
means acted without any public interest thereby
caused to obtain pecuniary advantage to A1.
There is every reason to believe that all the
accused persons gained undue pecuniary
advantage. But that can be proved only through a
detailed probe."
4. Following are the reliefs sought in this writ petition.
"Therefore it is humbly prayed that this
Hon'ble court may be pleased to:
(i) set aside Exhibit.P1 inquiry report and
Exhibit.P2 FIR and all further proceedings in
V.C.No.1 of 2019 of VACB, Ernakulam Unit.
(ii) pass such other orders as may be
necessary in the interest of justice."
5. The investigating officer has filed a detailed statement
narrating the facts leading to the registration of the case and also
the facts revealed in the investigation so far conducted.
W.P.(C) No.12672/2021
6. Heard Sri.S.Sreekumar, learned senior counsel who
appeared for the petitioner and Sri.T.A.Shaji, learned Director
General of Prosecutions.
7. There are several legal as well as factual grounds
stated in the writ petition to challenge Ext.P1 vigilance enquiry
report and Ext.P2 F.I.R. However, at the time of hearing, learned
senior counsel for the petitioner has raised only the following
contentions. (i) The petitioner was a public servant who was
employed in connection with the affairs of the State. The
preliminary enquiry conducted by the VACB, without the previous
approval of the State Government, as envisaged under Section
17A of the Act, was illegal and improper and Ext.P1 report made
by the VACB pursuant to such enquiry is invalid. (2) Ext.P2 F.I.R
registered on the basis of Ext.P1 enquiry report, without the
previous approval of the State Government as envisaged under
Section 17A of the Act, is not maintainable under law. The
investigation conducted against the petitioner by the VACB,
without such previous approval, is wholly illegal.
W.P.(C) No.12672/2021
8. Learned Director General of Prosecutions submitted
that, it was the Government which ordered to conduct the
preliminary enquiry and therefore, there is no basis for the
contention raised by the petitioner that there was no previous
approval of the State Government as envisaged under Section
17A of the Act for conducting the enquiry. Learned Director
General of Prosecutions also submitted that, at the time of
registration of Ext.P2 F.I.R, the petitioner was not an accused in
the case and therefore, there was no question of obtaining
previous approval by the VACB for conducting investigation
against him pursuant to the registration of the case. Learned
Director General of Prosecutions further submitted that, once
previous approval is granted by the authority concerned for
conducting enquiry, it is not necessary for the police officer to
again obtain previous approval for registration of F.I.R or
conducting investigation, if the preliminary enquiry conducted
disclosed commission of cognizable offences under the Act.
W.P.(C) No.12672/2021
9. The rival contentions raised by the parties focus on the
provisions contained in Section 17A of the Act. This provision
was introduced in the Act by way of amendment, as per Act 16 of
2018, with effect from 26.07.2018.
10. Section 17A of the Act reads as follows:
"17A. Enquiry or Inquiry or investigation of offences
relatable to recommendations made or decision taken by
public servant in discharge of official functions or
duties.--
No police officer shall conduct any enquiry or
inquiry or investigation into any offence alleged
to have been committed by a public servant
under this Act, where the alleged offence is
relatable to any recommendation made or
decision taken by such public servant in
discharge of his official functions or duties,
without the previous approval--
(a) in the case of a person who is or was
employed, at the time when the offence was
alleged to have been committed, in connection
with the affairs of the Union, of that
Government;
(b) in the case of a person who is or was
employed, at the time when the offence was
W.P.(C) No.12672/2021
alleged to have been committed, in
connection with the affairs of a State, of that
Government;
(c) in the case of any other person, of the
authority competent to remove him from his
office, at the time when the offence was
alleged to have been committed:
Provided that no such approval shall be
necessary for cases involving arrest of a
person on the spot on the charge of accepting
or attempting to accept any undue advantage
for himself or for any other person:
Provided further that the concerned authority
shall convey its decision under this section
within a period of three months, which may,
for reasons to be recorded in writing by such
authority, be extended by a further period of
one month."
11. A close scrutiny of the provisions contained in Section
17A of the Act would reveal the following: (1) The bar under
Section 17A of the Act operates against a police officer (2) It
prohibits a police officer from conducting any enquiry or inquiry
or investigation into any offence alleged to have been committed
by a public servant under the Act without the previous approval
W.P.(C) No.12672/2021
of the prescribed authority (3) The bar under the provision
operates or applies only when the offence allegedly committed by
a public servant under the Act relates to any recommendation
made or decision taken by such public servant in discharge of his
official functions or duties (4) The authority competent to grant
previous approval for enquiry or inquiry or investigation is the
Central Government in the case of a person employed in
connection with the affairs of the Union (5) The authority
competent to grant previous approval for enquiry or inquiry or
investigation is the State Government in the case of a person
employed in connection with the affairs of the State (6) The
authority competent to grant previous approval for enquiry or
inquiry or investigation in the case of any other person is the
authority competent to remove the public servant from his office
(7) The provision also applies in case of a retired public servant.
The previous approval envisaged under Section 17A of the Act is
necessary even if the public servant has retired from service
(8) Section 17A of the Act does not apply to cases involving
W.P.(C) No.12672/2021
arrest of a person on the spot on the charge of accepting or
attempting to accept any undue advantage for himself or for any
other person (9) The time which shall be taken by the authority
concerned to convey its decision on granting of approval is three
months (10) The authority may, for reasons to be recorded in
writing, extend the above time by a further period of one month.
12. The object of Section 17A of the Act is to protect public
servants from malicious, vexatious and baseless prosecution.
However, it cannot be considered as a protective shield for
corrupt public servants. It is a safeguard only for the honest
officers. A public servant cannot be left to be under constant
apprehension that bona fide decisions taken by him would be
open to enquiry, inquiry or investigation on the basis of frivolous
and false complaints made against him. If every decision taken
by a public servant is viewed with suspicion, the public
administration will come to a grinding halt as the persons
responsible for taking decisions would lose their enthusiasm.
Section 17A of the Act intends to avoid such a situation. The
W.P.(C) No.12672/2021
requirement of seeking previous approval presupposes that the
offence under the Act allegedly committed by the public servant
is relatable to any recommendation made or decision taken by
him in discharge of his official functions or duties.
13. The expression "discharge of his official functions or
duties" in Section 17A of the Act reflects the legislative intent
that the protection envisaged is not a blanket protection. The
purpose is to protect an honest and responsible public servant if
the recommendation made or decision taken by him is in
discharge of his official functions or duties. As a necessary
corollary, previous approval is required only if the
recommendation made or decision taken is directly concerned
with the official functions or duties of the public servant. When a
recommendation or decision is made by a public servant, which is
not directly and reasonably connected with his official functions
or duties, he is not entitled to get the protection under Section
17A of the Act.
W.P.(C) No.12672/2021
14. As already noticed, the provisions under Section 17A
of the Act would apply only when the offence under the Act
alleged to have been committed by the public servant relates to a
recommendation made or decision taken by the public servant in
discharge of his official functions or duties. Emphasis has been
made on this aspect by the Madhya Pradesh High Court in
Kavindra Kiyawat v. State of M.P (MANU/MP/1150/2020)
by holding as follows:
"From the plain reading of Section 17A of
Prevention of Corruption Act, 1988, it is clear that
an officer can claim protection from "enquiry" or
"investigation" only when he has made any
"recommendation" or "decision". The general
meaning of word "decision" means, the action or
process of deciding something or resolving a
question. Thus, it can be said that a "decision"
means an act by which an Executive or Authority
decides to act in a particular manner in a given set
of facts or problems. Therefore, in order to apply
the provisions of Section 17A of Prevention of
Corruption Act, 1988, there must be "decision" or
"recommendation" by an authority against which an
enquiry or investigation is under contemplation.
W.P.(C) No.12672/2021
Maintaining silence on a particular issue cannot be
said to be a "recommendation" or "decision".
15. In the present case, the petitioner was a public servant
as defined under Section 2(c) of the Act. He was the Secretary to
Government, Public Works Department at the time when the
offence under the Act was allegedly committed. He has retired
from service on 31.05.2018.
16. Learned senior counsel for the petitioner contended that
the preliminary enquiry, which culminated in Ext.P1 report, was
conducted by the VACB without the previous approval of the
State Government as envisaged under Section 17A of the Act.
Learned senior counsel submitted that the enquiry was conducted
into offences under the Act allegedly committed by public
servants including the petitioner and such offences related to
recommendation made/decision taken by the petitioner in
discharge of his official functions or duties. Therefore, it is
submitted that previous approval by the competent authority was
absolutely necessary to conduct such an enquiry.
W.P.(C) No.12672/2021
17. In Yashwant Sinha v. C.B.I : (2020) 2 SCC 338, the
Apex Court has considered the importance of the provision
contained in Section 17A of the Act and it was observed as
follows:
"In terms of Section 17A, no police officer is
permitted to conduct any enquiry or inquiry or
conduct investigation into any offence done by a
public servant where the offence alleged is relatable
to any recommendation made or decision taken by
the public servant in discharge of his public
functions without previous approval, inter alia, of
the authority competent to remove the public
servant from his office at the time when the offence
was alleged to have been committed. In respect of
the public servant, who is involved in this case, it is
clause (c), which is applicable. Unless, therefore,
there is previous approval, there could be neither
inquiry or enquiry or investigation. It is in this
context apposite to notice that the complaint, which
has been filed by the petitioners in Writ Petition
(Criminal) No. 298 of 2018, moved before the first
respondent CBI, is done after Section 17A was
inserted. The complaint is dated 4.10.2018. Para 5
sets out the relief which is sought in the complaint
W.P.(C) No.12672/2021
which is to register an FIR under various provisions.
..... the petitioners have filed the complaint fully
knowing that Section 17A constituted a bar to any
inquiry or enquiry or investigation unless there was
previous approval. In fact, a request is made to at
least take the first step of seeking permission under
Section 17A of the 2018 Act. Writ Petition (Criminal)
No. 298 of 2018 was filed on 24.10.2018 and the
complaint is based on non-registration of the FIR.
There is no challenge to Section 17A. Under the law,
as it stood, both on the date of filing the petition
and even as of today, Section 17A continues to be
on the statute book and it constitutes a bar to any
inquiry or enquiry or investigation. The petitioners
themselves, in the complaint, request to seek
approval in terms of Section 17A but when it comes
to the relief sought in the writ petition, there was no
relief claimed in this behalf. Even proceeding on the
basis that on petitioners' complaint, an FIR must be
registered as it purports to disclose cognizable
offences and the Court must so direct, will it not be
a futile exercise having regard to Section 17A. I am,
therefore, of the view that though otherwise the
petitioners in Writ Petition (Criminal) No.298 of
2018 may have made out a case, having regard to
the law actually laid down in Lalita Kumari [Lalita
W.P.(C) No.12672/2021
kumari v. State of U.P : (2014) 2 SCC 1] and more
importantly, Section 17A of the Prevention of
Corruption Act, in a review petition, the petitioners
cannot succeed. However, it is my view that the
judgment sought to be reviewed, would not stand in
the way of the first respondent in Writ Petition
(Criminal) No.298 of 2018 from taking action on
Ext.P-1, complaint in accordance with law and
subject to first respondent obtaining previous
approval under Section 17A of the Prevention of
Corruption Act."
18. The decision of the Supreme Court in Yashwant Sinha
(supra) is authority for the proposition that, in respect of a
complaint filed or information given to a police officer, after the
insertion of Section 17A in the Act, regarding commission of an
offence committed by a public servant under the Act and which
relates to any recommendation made or decision taken by such
public servant in discharge of his official functions or duties,
unless there is previous approval of the authority concerned, the
police officer cannot conduct any enquiry or investigation into
such offence.
W.P.(C) No.12672/2021
19. The embargo under Section 17A of the Act applies only
to such enquiry or investigation which is initiated after the
introduction of that provision in the statute. The legislative intent
is certainly not to set the clock back to invalidate investigation or
enquiry which was undertaken prior to the coming into force of
that provision.
20. Ext.R2(b) is the copy of the letter No.156/E(2)/
2019/Vig dated 06.05.2019 sent to the Director, VACB by the
Joint Secretary, Vigilance Department. As per this letter, direction
was given to immediately conduct vigilance enquiry regarding the
irregularities committed in the construction of the Palarivattom
Flyover and to file report to the Government. Learned Director
General of Prosecutions submitted that it was on the basis of
Ext.R2(b) letter sent by the Government that the VACB
conducted vigilance enquiry and filed Ext.P1 report.
21. Learned senior counsel for the petitioner contended that
Ext.R2(b) is only an executive order passed on the basis of the
direction given by the Chief Minister of Kerala and it is not an
W.P.(C) No.12672/2021
order passed on behalf of the Governor of Kerala as provided
under Article 166 of the Constitution of India and therefore, it
has no validity.
22. Article 154(1) of the Constitution of India states that
the executive power of the State shall be vested in the Governor
and shall be exercised by him either directly or through officers
subordinate to him in accordance with the Constitution. Article
166(1) of the Constitution of India provides that all executive
action of the Government of a State shall be expressed to be
taken in the name of the Governor. Article 166(2) of the
Constitution states that, orders and other instruments made and
executed in the name of the Governor shall be authenticated in
such manner as may be specified in rules to be made by the
Governor, and the validity of an order or instrument which is so
authenticated shall not be called in question on the ground that it
is not an order or instrument made or executed by the Governor.
Article 166(3) of the Constitution provides that, the Governor
shall make rules for the more convenient transaction of the
W.P.(C) No.12672/2021
business of the Government of the State, and for the allocation
among Ministers of the said business in so far as it is not
business with respect to which the Governor is by or under this
Constitution required to act in his discretion.
23. Rule 12 of the Rules of Business of the Government of
Kerala, framed by the Governor under Article 166(3) of the
Constitution of India, states that every order or instrument of the
Government of the State shall be signed by a Secretary, an
Additional Secretary, a Joint Secretary, a Deputy Secretary, an
Under Secretary or by such other officer as may be specially
empowered in that behalf and such signature shall be deemed to
be the proper authentication of such order or instrument. Rule 12
permits every order or instrument of the Government of the
State to be signed by a Secretary, an Additional Secretary, a
Joint Secretary, a Deputy Secretary, an Under Secretary or by
such other officer as may be specially empowered in that behalf.
24. When a Minister takes an action according to the Rules
of Business, it is both in substance and in form the action of the
W.P.(C) No.12672/2021
Governor (See A.A.Padmanabhan v. State of Kerala : AIR
2018 SC 2982).
25. In A.Sanjeevi Naidu v. State of Madras : AIR 1970
SC 1102, a Constitution Bench of the Supreme Court has held as
follows:
"Under our Constitution, the Governor is essentially
a constitutional head, the administration of State is
run by the Council of Ministers. But in the very
nature of things, it is impossible for the Council of
Ministers to deal with each and every matter that
comes before the Government. In order to obviate
that difficulty the Constitution has authorised the
Governor under sub-article (3) of Article 166 to
make rules for the more convenient transaction of
business of the Government of the State and for the
allocation amongst its Ministers, the business of the
Government. All matters excepting those in which
Governor is required to act in his discretion have to
be allocated to one or the other of the Ministers on
the advice of the Chief Minister".
The Constitution Bench has further held as follows:
"The cabinet is responsible to the legislature for
every action taken in any of the ministries. That is
W.P.(C) No.12672/2021
the essence of joint responsibility. That does not
mean that each and every decision must be taken
by the cabinet. The political responsibility of the
Council of Ministers does not and cannot predicate
the personal responsibility of the Ministers to
discharge all or any of the governmental functions.
Similarly an individual Minister is responsible to the
legislature for every action taken or omitted to be
taken in his ministry. This again is a political
responsibility and not personal responsibility. Even
the most hardworking Minister cannot attend to
every business in his department. If he attempts to
do it, he is bound to make a mess of his
department. In every well planned administration,
most of the decisions are taken by the civil servants
who are likely to be experts and not subject to
political pressure. The Minister is not expected to
burden himself with the day to day administration.
His primary function is to lay down the policies and
programmes of his ministry while the Council of
Ministers settle the major policies and programmes
of the Government. When a civil servant takes a
decision, he does not do it as delegate of his
Minister. He does it on behalf of the Government. It
is always open to a Minister to call for any file in his
ministry and pass orders. He may also issue
W.P.(C) No.12672/2021
directions to the officers in his ministry regarding
the disposal of Government business either
generally or as regards any specific case. Subject to
that over all power, the officers designated by the
'Rules' or the standing orders, can take decisions on
behalf of the Government. These officers are the
limbs of the Government and not its delegates".
(emphasis supplied)
26. In Samsher Singh v. State of Punjab : AIR 1974 SC
2192, a seven Judge Bench of the Supreme Court has held as
follows:
"The expression "Business of the Government of
India'' in clause (3) of Article 77, and the expression
"Business of the Government of the State'' in clause
(3) of Article 166 includes all executive business. In
all cases in which the President or the Governor
exercises his functions conferred on him by or under
the Constitution with the aid and advice of his
Council of Ministers he does so by making rules for
convenient transaction of the business of the
Government of India or the Government of State
respectively or by allocation among his Ministers of
the said business, in accordance with Articles 77(3)
and 166(3) respectively. ...... Both Articles 77(3)
and 166(3) provide that the President under Article
W.P.(C) No.12672/2021
77(3) and the Governor under Article 166(3) shall
make rules for the more convenient transactions of
the business of the Government and the allocation
of business among the Ministers of the said
business. The rules of business and the allocation
among the Ministers of the said business all indicate
that the decision of any Minister or officer under
these two Articles viz., Article 77(3) in the case of
the President and Article 166(3) in the case of the
Governor of the State is the decision of the
President or the Governor respectively. ..... Where
functions entrusted to a Minister are performed by
an official employed in the Minister's Department
there is in law no delegation because
constitutionally the act or decision of the official is
that of the Minister. The official is merely the
machinery for the discharge of the functions
entrusted to a Minister. .... The decision of any
Minister or officer under rules of business made
under any of these two Articles 77(3) and 166(3) is
the decision of the President or the Governor
respectively. These articles did not provide for any
delegation. Therefore, the decision of Minister or
officer under the rules of business is the decision of
the President or the Governor".
W.P.(C) No.12672/2021
27. In State of Punjab v. Mohammed Iqbal Bhatti :
(2009) 17 SCC 92, it has been held as follows:
"It is now well-known that in the event it appears
from the order and the records produced before the
court, if any occasion arises therefor that even if a
valid order is not authenticated in terms of Clause
(3) of Article 166 of the Constitution of India, the
same would not be vitiated in law. Failure to
authenticate an executive order is not fatal. The
said provision is directory in nature and not
mandatory".
28. In the present case, the Chief Minister had made an
endorsement on the letter sent to him by the Minister of Public
Works Department, ordering vigilance enquiry in the matter. As
per Ext.R2(b) letter, the Joint Secretary, Vigilance Department
communicated the decision of the Chief Minister to the Director,
VACB. Rule 4 of the Rules of Business provides that, the business
of the Government shall be transacted in the Department
specified in the First Schedule to the Rules and shall be classified
and distributed between those departments as laid down therein.
Vigilance Department comes under the First Schedule to the
W.P.(C) No.12672/2021
Rules. Rule 9 of the Rules of Business states that, without
prejudice to the provisions of Rule 7, the Minister in charge of a
department shall be primarily responsible for the disposal of the
business appertaining to that department. There is no dispute
with regard to the fact that the Chief Minister was also the
Minister for the Vigilance Department. When the Minister takes
an action, it is an action taken by the State Government. In such
circumstances, in the light of the authoritative pronouncements
of the Apex Court referred to earlier, there can be no doubt with
regard to the fact that the order or decision to conduct vigilance
enquiry which was communicated to the Director, VACB by the
Joint Secretary, Vigilance Department as per Ext.R2(b) letter was
the order/decision of the State Government.
29. Learned senior counsel for the petitioner contended that
Ext.R2(b) instrument is not valid because it does not state that it
was issued "By order of the Governor".
30. In R. Chitralekha v. State of Mysore : AIR 1964 SC
1823, a question arose before the Constitution Bench whether a
W.P.(C) No.12672/2021
letter signed by the Under Secretary communicating the decision
of the Government is valid or not. The Apex Court held as
follows:
"Ex facie this letter shows that it was a
communication of the order issued by the
Government under the signature of the Under
Secretary to the Government, Education
Department. Under Article 166 of the Constitution
all executive action of the Government of a State
shall be expressed to be taken in the name of the
Governor, and that orders made in the name of the
Governor shall be authenticated in such manner as
may be specified in rules to be made by the
Governor and the validity of an order which is so
authenticated shall not be called in question on the
ground that it is not an order made by the
Governor. If the conditions laid down in this Article
are complied with, the order cannot be called in
question on the ground that it is not an order made
by the Governor. It is contended that as the order
in question was not issued in the name of the
Governor the order was void and no interviews
could be held pursuant to that order".
W.P.(C) No.12672/2021
After making reference to the other decisions of the Apex Court,
it was concluded by the Constitution Bench as follows:
"It is, therefore, settled law that provisions of
Article 166 of the Constitution are only directory and
not mandatory in character and, if they are not
complied with, it can be established as a question of
fact that the impugned order was issued in fact by
the State Government or the Governor".
31. In Krishna Iyer v. State of Kerala : 2005 (1) KLT
391, a Division Bench of this Court has held as follows:
"Even if it is not written that 'By order of Governor',
it will still be an order passed by the State if it is
passed by Secretary on behalf of the Government."
32. In Udayakumar v. State of Kerala : 2001 (2) KLT
895, this Court has held as follows:
"But then Article 166(1) of the Constitution provides
that all executive action of the Government of a
State shall be expressed to be taken in the name of
the Governor. It would have been appropriate
therefore that the impugned order specifically
mentioned the fact that it was issued by the order of
the Governor. It is not so done. However, this does
not appear to be a material defect which would
invalidate the sanction. No authority has been
W.P.(C) No.12672/2021
placed before me to show that the absence of such
a mention would render the sanction void. In the
circumstances, the sanction granted in the case
cannot he held to be invalid for this reason".
33. In the light of the decisions referred to above, there is
no merit in the contention of the learned counsel for the
petitioner that Ext.R2(b) letter or instrument is not valid for the
reason that it does not bear the words "By order of the
Governor".
34. Learned senior counsel for the petitioner would then
contend that Ext.R2(b) letter does not show that the State
Government had given previous approval for conducting enquiry
against the petitioner.
35. The decision taken by the State Government was to
conduct vigilance enquiry into the irregularities committed in the
construction of the Palarivattom Flyover. The vigilance enquiry
was not specially directed against the petitioner or any other
public servant. Therefore, Ext.P1 vigilance enquiry report cannot
be challenged by the petitioner on the ground that the previous
approval given was not for conducting enquiry specifically against
W.P.(C) No.12672/2021
the petitioner. In fact, Ext.P1 enquiry report would show that the
petitioner was then not even a suspected officer.
36. In the above circumstances, the challenge made by
the petitioner to Ext.P1 enquiry report fails. The prayer made by
the petitioner to quash Ext.P1 report is liable to be rejected.
37. The other contention raised by the learned senior
counsel for the petitioner is that there was no previous approval
of the State Government obtained by the VACB for registration of
Ext.P2 F.I.R and for conducting investigation against the
petitioner and therefore, Ext.P2 F.I.R is not maintainable under
law.
38. Learned Director General of Prosecutions has
contended that the petitioner was not an accused in the case at
the time of registration of Ext.P2 F.I.R and therefore, there was
no question of obtaining previous approval of the Government for
registration of the case or conducting investigation against him.
Learned Director General of Prosecutions would also contend that
once previous approval under Section 17A of the Act is given by
W.P.(C) No.12672/2021
the authority concerned for conducting preliminary enquiry, it is
not necessary for the police officer to again obtain such approval
for conducting investigation.
39. When the authority concerned had given previous
approval for conducting preliminary enquiry and during such
enquriy, if commission of any cognizable offence under the Act by
a public servant, relating to a decision taken or recommendation
made by him in connection with his official duties, is disclosed, is
it then necessary for the police officer to again obtain previous
approval for registration of FIR and conducting investigation into
such offence? I am of the firm view that the answer to the above
question should be in the negative. The reasons are as follows.
40. True, in Section 17A of the Act, the word "or" is used
between the words "enquiry", "inquiry" and "investigation". If a
literal interpretation is given to this provision, then previous
approval of the authority concerned would be required for
conducting preliminary enquiry and then again for conducting
investigation. But, considering the object and purpose of the Act
W.P.(C) No.12672/2021
and also in particular of the provision under Section 17A, such an
interpretation is not warranted. The provision must receive a
reasonable interpretation particularly when it fetters the right of
the police officer to conduct the investigation into a cognizable
offence.
41. In Dr.Subramanian Swamy v. Dr.Manmohan
Singh : AIR 2012 SC 1185, it has been observed as follows:
"Today, corruption in our country not only poses a
grave danger to the concept of constitutional
governance, it also threatens the very foundation of
Indian democracy and the Rule of Law. The
magnitude of corruption in our public life is
incompatible with the concept of a socialist, secular
democratic republic. It cannot be disputed that
where corruption begins all rights end. Corruption
devalues human rights, chokes development and
undermines justice, liberty, equality, fraternity
which are the core values in our preambular vision.
Therefore, the duty of the Court is that any anti -
corruption law has to be interpreted and worked out
in such a fashion as to strengthen the fight against
corruption. That is to say in a situation where two
constructions are eminently reasonable, the Court
W.P.(C) No.12672/2021
has to accept the one that seeks to eradicate
corruption to the one which seeks to perpetuate it."
(emphasis supplied)
Dealing with the protection given to a public servant under
Section 19 of the Act, the Apex Court proceeded further and
observed as follows:
"These protections are not available to other
citizens. Public servants are treated as a special
class of persons enjoying the said protection so that
they can perform their duties without fear and
favour and without threats of malicious prosecution.
However, the said protection against malicious
prosecution which was extended in public interest
cannot become a shield to protect corrupt officials.
These provisions being exceptions to the equality
provision of Article 14 are analogous to provisions of
protective discrimination and these protections must
be construed very narrowly. These procedural
provisions relating to sanction must be construed in
such a manner as to advance the causes of honesty
and justice and good governance as opposed to
escalation of corruption."
(emphasis supplied)
W.P.(C) No.12672/2021
42. In Seaford Court Estates Ltd. v. Asher: 1949 (2)
KB 481, Lord Denning has observed as follows:
"Whenever a statute comes up for consideration it
must be remembered that it is not within human
powers to foresee the manifold sets of facts which
may arise, and, even if it were, it is not possible to
provide for them in terms free from all ambiguity.
The English language is not an instrument of
mathematical precision. Our literature would be
much the poorer if it were. This is where the
draftsmen of Acts of Parliament have often been
unfairly criticized. A judge, believing himself to be
fettered by the supposed rule that he must look to
the language and nothing else, laments that the
draftsmen have not provided for this or that, or
have been guilty of some or other ambiguity. It
would certainly save the judges trouble if Acts of
Parliament were drafted with divine prescience and
perfect clarity. In the absence of it, when a defect
appears a judge cannot simply fold his hands and
blame the draftsman. He must set to work on the
constructive task of finding the intention of
Parliament, and he must do this not only from the
language of the statute, but also from a
consideration of the social conditions which gave
W.P.(C) No.12672/2021
rise to it, and of the mischief which it was passed to
remedy, and then he must supplement the written
word so as to give "force and life" to the intention of
the legislature."
43. With regard to corruption, what is the present social
condition in India? In K.C.Sareen v. C.B.I : AIR 2001 SC
3320, it was observed as follows:
"Corruption by public servants has now reached a
monstrous dimension in India. Its tentacles have
started grappling even the institutions created for
the protection of the republic. Unless those
tentacles are intercepted and impeded from
gripping the normal and orderly functioning of the
public offices, through strong legislative, executive
as well as judicial exercises the corrupt public
servants could even paralyse the functioning of such
institutions and thereby hinder the democratic
polity. Proliferation of corrupt public servants could
garner momentum to cripple the social order if such
men are allowed to continue to manage and operate
public institutions".
44. In Neera Yadav v. C.B.I : AIR 2017 SC 3791, the
Apex Court has observed as follows:
W.P.(C) No.12672/2021
"Corruption has spread its tentacles almost on all
the key areas of the State and it is an impediment
to the growth of investment and development of
the country. If the conduct of administrative
authorities is righteous and duties are performed in
good faith with the vigilance and awareness that
they are public trustees of people's rights, the
issue of lack of accountability would themselves
fade into insignificance".
45. The amendments made to the Prevention of Corruption
Act by Act 16 of 2018 were with the intention to strengthen it to
bring it in line with the current international practice. The PC Act,
1988 is a special statute. The preamble of it shows that it has
been enacted to consolidate and amend the law relating to the
prevention of corruption and for the matters connected therewith.
It is intended to make the corruption laws more effective by
widening their coverage and by strengthening the provisions. As
noticed earlier, the object of Section 17A of the Act is to give
protection to honest public servants to take decisions without any
fear of vexatious prosecution against them.
W.P.(C) No.12672/2021
46. In the aforesaid scenario, as held in Dr.Subramanian
Swamy (supra), a provision like Section 17A in an anti-
corruption law has to be interpreted in such a fashion as to
strengthen the fight against corruption. Where two constructions
are eminently reasonable, the Court has to accept the one that
seeks to eradicate corruption than the one which seeks to
perpetuate it. If such an interpretation is given to the provision
contained in Section 17A of the Act, it can be found that, in a
case where the police officer has obtained previous approval for
conducting enquiry and if commission of a cognizable offence
under the Act (relating to a decision taken or recommendation
made by a public servant) is disclosed in such enquiry, then the
police officer is not again obliged to get previous approval for
conducting investigation into such offence.
47. Ext.P2 FIR was registered on 03.06.2019. The
petitioner was implicated in the case as an accused only on
30.08.2019. Learned senior counsel for the petitioner contended
that, after implicating the petitioner as an accused in the case,
W.P.(C) No.12672/2021
but before conducting any investigation against him, approval of
the State Government should have been obtained under Section
17A of the Act.
48. Section 17A of the Act, as interpreted earlier, does not
permit me to accept the above contention. If the above
contention of the petitioner is accepted, it would very often
result in absurd situations. During the course of investigation into
an offence under the Act, the role played by many persons, other
than the persons who are already arrayed as accused in the FIR,
may come to light. Many of them may be public servants. If the
contention of the learned senior counsel is accepted, it would
mean that, when a person who is a public servant is implicated
as an accused in the case subsequent to the registration of the
FIR, then before conducting investigation against such person,
the police officer has to obtain approval of the authority
concerned. Then, when the role of another public servant in the
commission of the offence under the Act is revealed during the
investigation and if he is implicated as an accused in the case,
W.P.(C) No.12672/2021
the police officer has to again obtain approval of the authority
concerned before conducting investigation against that particular
public servant. This may go on and go on as a continuing
process. Section 17A of the Act cannot be given such an absurd
interpretation. What is contemplated under Section 17A of the
Act is "previous" approval for conducting investigation into an
offence committed by a public servant. Once previous approval
is given for conducting investigation into an offence committed
by any public servant and once investigation has commenced,
then there is no question of granting "previous" approval for
conducting investigation against each public servant who may
subsequently be implicated in the case.
49. In many cases, when an FIR is registered under a
provision of law, the names of the accused who have committed
the offence may not be known and their names may not be
stated in the FIR. FIR is not an encyclopedia disclosing all facts
and details relating to the offence allegedly committed. FIR is not
meant to be a detailed document containing chronicle of all
W.P.(C) No.12672/2021
intricate and minute details. When the information contained in
the FIR does not furnish all details, it is for the investigating
officer to find out those details during the course of investigation
and collect necessary evidence. It is well known that, whenever
an offence is committed, it is not necessary that the investigation
shall be confined to the role of only those arrayed as accused in
the FIR or with reference to the penal provisions mentioned in it.
Once a case is registered, under whatever provision, during the
course of the investigation conducted, the situation may warrant
inclusion of the names of new persons as accused or deletion of
the names of existing accused and also invocation of new or
different penal provisions other than those mentioned in the FIR.
Section 17A of the Act cannot be interpreted in such a manner
that previous approval of the authority concerned shall be
obtained by the police officer before implicating any new person,
who is a public servant, as an accused in the case and conducting
investigation against him.
W.P.(C) No.12672/2021
50. At this juncture, it is also to be taken note of the fact
that the petitioner was implicated as an accused in the case as
early as on 30.08.2019 but he filed this writ petition only on
23.06.2021. He had been arrested and remanded to judicial
custody during the course of the investigation. Therefore, he
cannot pretend that he was earlier not aware of the fact that he
was implicated as an accused in the case. In the statement filed
by the investigating officer it is mentioned that the investigation
of the case has been completed. When the investigation has
reached the fag end, it is not proper to quash the F.I.R.
51. In the statement filed by the investigating officer, it is
mentioned that the investigation has revealed that the petitioner
has committed the offences punishable under Sections 13(1)(c)
and 13(1)(d) read with 13(2) of the Act and also under Sections
409 and 120B of the Indian Penal Code. It is further mentioned
in the statement filed by the investigating officer that the
petitioner had recommended sanction of mobilization advance for
the construction of the fly over fixing interest at the rate of 7%
W.P.(C) No.12672/2021
only which was less than the approved rate with a view to give
pecuniary advantage to the contractor. During the investigation,
it has been revealed that, subsequent to the release of the
mobilization advance, the son of the petitioner had purchased 17
cents of land on 01.10.2014 for a consideration of 140 lakhs
rupees but the actual payment in connection with the above
transaction was 330 lakhs rupees. It is also stated that, out of
the aforesaid amount, the petitioner had handed over an amount
of 80 lakhs rupees in cash on 22.05.2014, 20 lakhs rupees on
04.08.2014 and 25 lakhs rupees on 19.09.2014 as advance. It
means that, during the investigation of the case, it is revealed
that offences which have no connection whatsoever with the
official duties of the petitioner were committed by him. If that be
so, the petitioner is not entitled to get the protection under
Section 17A of the Act in respect of those offences.
52. The investigation has revealed that the petitioner has
committed an offence punishable under Section 13(1)(c) of the
Act. This provision, as it stood before the amendment of the Act,
W.P.(C) No.12672/2021
reads as follows:
"13(1) A public servant is said to commit the
offence of misconduct, - (c) if he dishonestly or
fraudulently misappropriates or otherwise converts
for his own use any property entrusted to him or
under his control as a public servant or allows any
other person to do so."
53. In Shambhoo Nath Misra v. State of U.P : AIR 1997
SC 2102, the Apex Court has held as follows:
"It is not the official duty of the public servant to
fabricate the false record and misappropriate the
public funds etc. in furtherance of or in the
discharge of his official duties. The official capacity
only enables him to fabricate the record or
misappropriate the public fund etc. It does not
mean that it is integrally connected or inseparably
interlinked with the crime committed in the course
of same transaction."
54. In Parkash Singh Badal v. State of Punjab : AIR
2007 SC 1274, it has been held as follows:
"The principle of immunity protects all acts which
the public servant has to perform in the exercise of
the functions of the Government. The purpose for
which they are performed protects these acts from
W.P.(C) No.12672/2021
criminal prosecution. However, there is an
exception. Where a criminal act is performed under
the colour of authority but which in reality is for the
public servant's own pleasure or benefit then such
acts shall not be protected under the doctrine of
State immunity".
55. In Devender Kumar v. Central Bureau of
Investigation : 2019 (1) Crimes 726, the Delhi High Court
has observed as follows:
"Section 17A as it reads and the legislative intent in
its enactment can only be to protect public servants
in the bonafide discharge of official functions or
duties. However, when the act of a public servant is
ex-facie criminal or constitutes an offence, prior
approval of the Government would not be
necessary".
56. In Satish Pandey v. Union of India:
MANU/CG/0097/2020, the Chattisgarh High Court has
observed as follows:
"Amassing wealth by misappropriation or
embezzlement is never considered to be in
discharge of official duties. The provision (Section
17A of the PC Act) has been inserted only to
provide protection to officers/public servants who
discharge their official functions and/or duties with
W.P.(C) No.12672/2021
diligence, fairly, in an unbiased manner and to the
best of their ability and judgment, however, it does
not seek to protect any person who is involved in
garnishing wealth by corrupt means".
57. In All India Private Schools Legal Protection
Society v. The Chief Secretary, Government of Tamil
Nadu: MANU/TN/7248/2020, the Madras High Court has
observed as follows:
"Section 17A of the Prevention of Corruption Act
cannot be made applicable in those cases where
the act of the public servant that amounts to an
offence appears on the face of it lacking in good
faith. Issuing public building license and no
objection certificates for the 11th respondent
cannot be said to be acts done in good faith. Where
the performance of public function is grossly
improper, the safe conclusion at least at the initial
stage can be that it was in anticipation of or in
consequence of accepting an undue advantage
from the beneficiary".
58. Use or utilization of public funds by a public servant
under the colour of authority but really for his own benefit cannot
be considered as an act done in discharge of his official functions
W.P.(C) No.12672/2021
or duties. Such an act is not entitled to get the protection under
Section 17A of the Act.
59. The quintessence of the discussion above is that,
neither Ext.P1 enquiry report nor Ext.P2 FIR, is liable to be
quashed at the instance of the petitioner.
Consequently, the writ petition is dismissed.
(sd/-) R.NARAYANA PISHARADI, JUDGE
jsr
W.P.(C) No.12672/2021
APPENDIX OF WP(C) 12672/2021
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE ENQUIRY REPORT NO. VE-
01/209/CRE DATED 28.05.2019.
Exhibit P2 TRUE COPY OF THE FIR IN CRIME NO.1 OF
2019 DATED 03.06.2019 OF THE
VACB,ERNAKULAM UNIT.
Exhibit P3 TRUE COPY OF REPLY DATED 14.11.2019
ISSUED BY D.Y.S.P VACB, ERNAKULAM UNIT.
Exhibit P4 TRUE COPY OF G.O. (MS) NO.57/14/PWD
DATED 15/07/2014.
Exhibit P5 A TRUE COPY OF THE REMAND REPORT DATED
30/08/2019.
RESPONDENTS' EXHIBITS:
ANNEXURE R2(a) : TRUE COPY OF THE LETTER NO.139/M(PWD &
R)/2019 DATED 03.05.2019.
ANNEXURE R2(b) : TRUE COPY OF THE COMMUNICATION
NO.156/E2/2019/Vig DATED 06.05.2019 ISSUED BY THE ADDITIONAL
CHIEF SECRETARY TO GOVERNMENT TO THE DIRECTOR, VACB.
ANNEXURE R2(c) : TRUE COPY OF THE RELEVANT PAGES OF THE
NOTE FILE OF THE VIGILANCE (E) DEPARTMENT OF THE GOVERNMENT.
ANNEXURE R2(d) : TRUE COPY OF THE COMMUNICATION NO.C-(VE
1/2019/CRE) 14247/2019 DATED 22.06.2019.
ANNEXURE R2(e) : TRUE COPY OF THE RELEVANT PAGES OF THE
NOTE FILE (NOTE 21 & 22) OF VIGILANCE (E) DEPARTMENT.
W.P.(C) No.12672/2021
ANNEXURE R2(f) : TRUE COPY OF THE COMMUNICATION NO.Vig-
E2/156/2019-Vig DATED 26.08.2019 ISSUED BY ADDITIONAL CHIEF
SECRETARY TO GOVERNMENT TO THE DIRECTOR OF VACB.
ANNEXURE R2(g) : TRUE COPY OF THE NOTE NO.31 AND 34 IN THE
NOTE FILE OF VIGILANCE (E) DEPARTMENT.
TRUE COPY
PS TO JUDGE
