Kerala High Court
Sunny Mon vs State Of Kerala on 26 April, 2022
W.P(C).No.35976 of 2016
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 26TH DAY OF APRIL 2022 / 6TH VAISAKHA, 1944
WP(C) NO. 35976 OF 2016
PETITIONER/S:
SUNNY MON, AGED 51 YEARS
AGED 51 YEARS, S/O. THEVAN ANANTHAN, SPECIAL
VILLAGE OFFICER, SPECIAL TAHSILDAR OFFICE (LAND
ACQUISITION/NATIONAL HIGH WAY), RANNI,
PATHANAMTHITTA DISTRICT, RESIDING AT PATTILETHU
HOUSE, NEAR EZHIKKAD COLONY, KURICHIMUTTAM P.O.,
KIDANGANNOOR, PATHANAMTHITTA.
BY ADVS.
SRI.D.KISHORE
SMT.MINI GOPINATH
SMT.MEERA GOPINATH
SRI.R.MURALEEKRISHNAN MALAKKARA
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED ITS CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE PRINCIPAL SECRETARY TO GOVERNMENT
HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
3 THE PRINCIPAL SECRETARY TO GOVERNMENT
VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
4 THE DIRECTOR
VIGILANCE AND ANTI CORRUPTION BUREAU, STATE OFFICE,
PMG, VIKAS BHAVAN, THIRUVANANTHAPURAM-695036.
5 THE STATE POLICE CHIEF
POLICE HEADQUARTERS, THIRUVANANTHAPURAM-695014.
6 THE DEPUTY SUPERINTENDENT OF POLICE
VIGILANCE AND ANTI CORRUPTION BUREAU,
W.P(C).No.35976 of 2016
2
PATHANAMTHITTA UNIT, PATHANAMTHITTA-689645.
7 JOJI JOHN
S/O. A.N.JOHN, ANJILI VILAYIL VEEDU, RAMANCHIRA,
THUMBAMON NORTH, MEZHUVELI, PATHANAMTHITTA
DISTRICT-689507.
8 THE LEGAL ADVISER
COURT OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE
(VIGILANCE COURT), VANCHIYOOR, THIRUVANANTHAPURAM-
695035.
9 THE ADDITIONAL LEGAL ADVISER
COURT OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE
(VIGILANCE COURT), VANCHIYOOR, THIRUVANANTHAPURAM-
695035.
OTHER PRESENT:
SPL.GP SRI.A RAJESH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16.02.2022, THE COURT ON 26.04.2022 DELIVERED THE
FOLLOWING:
W.P(C).No.35976 of 2016
3
SUNIL THOMAS, J.
=================
W.P(C).No.35976 of 2016
=================
Dated this the 26th day of April, 2022
JUDGMENT
The sole accused in V.C.No.1/2014/PTA now pending as C.C.No.34
of 2016 on the file of the Enquiry Commissioner and Special Judge,
Thiruvananthapuram for offences punishable under sections 7, 13(1)(b)
r/w 13(2) of the Prevention of Corruption Act, 1988 is the petitioner
herein. It was alleged by the prosecution that while he was working as
the Special Village Officer and as such being a public servant, abused
his official position by demanding and receiving a sum of Rs.5,000/- as
illegal gratification from the defacto complainant on 18.02.2014 for
effecting mutation of the property of the defacto complainant. After
investigation, final report was laid and it is stated that the case is
posted for framing charge.
2. Petitioner has approached this Court challenging Ext.P4
notification of the Vigilance Department No.3/2002/Vig., dated
15.01.2002, by which, in exercise of the powers conferred under
Sec.2(1) of the Kerala Public Service Act 1968, Government issued
Special Rules for the Kerala State Legal Advisers (Vigilance and Anti-
Corruption Bureau) Service. Under the Rules, the said service had two
categories of officers, (i) Legal Advisers and (ii) Additional Legal
Advisers. Additional Legal Advisers were to be appointed by direct
W.P(C).No.35976 of 2016
recruitment and the Legal Advisers by promotion from the category of
Additional Legal Advisers in Vigilance and Anti-Corruption Bureau. The
legality of the above G.O. is challenged by the writ petitioner on three
specific grounds. (i) the Legal Advisers/Additional Legal Advisers
contemplated under the Rules and who are authorized to conduct
prosecution before the Enquiry Commissioner and Special Judge are not
prosecutors duly appointed under Sec.24 of the Code of Criminal
Procedure, 1973 (ii) they are not appointed under the Government Law
Officers, (Appointment and Condition of Service and Conduct of
Service) Rules 1978 and (iii) Special Rules for Kerala State Legal
Advisers (Vigilance and Anti-Corruption Bureau) service 2002, were not
laid before the Kerala Legislative Assembly as contemplated under Rule
2 of the Kerala Public Services Act 1968.
3. The reliefs sought in the writ petitioner were, inter alia, to
declare that the trial in C.C.No.34 of 2016 on the file of the Enquiry
Commissioner and Special Judge (Vigilance), Thiruvananthapuram,
wherein the petitioner stood arrayed as the accused, can be conducted
only by a Public Prosecutor appointed in terms of Secs.2(u) and 24 of
the Code of Criminal Procedure and not by a Legal Adviser or Additional
Legal Adviser appointed in terms of Ext.P4, to issue a writ of mandamus
or any other appropriate writ, order or direction directing the
respondents not to permit the Legal Adviser/Additional Legal Adviser in
the Court of Enquiry Commissioner and Special Judge (Vigilance),
Thiruvananthapuram to conduct prosecution as against the petitioner in
W.P(C).No.35976 of 2016
C.C.No.34 of 2016 and such other reliefs.
4. Answering the above contentions, a detailed counter affidavit
has been filed, traversing each and every factual allegation, the grounds
raised and the reliefs sought. Since I propose to deal with each issues
separately with reference to the contentions, they are not separately
narrated.
5. Advancing the first and second grounds of challenge, learned
counsel for the petitioner referred to Sec.2(u) of the Cr.P.C., Sec.24 of
the Cr.P.C and Sec.5(3) of the Prevention of Corruption Act. Sec.2(u)
defines a Public Prosecutor to mean any person appointed under Sec.24
and it includes any person acting under the directions of a Public
Prosecutor. Sec.5(3) of the Prevention of Corruption Act, 1988 states
that a person conducting a prosecution before a Special Judge under
the PC Act shall be deemed to be a Public Prosecutor. Sec.24 of the
Cr.P.C refers to the appointment of the Public Prosecutor for every High
Court and Sessions Court. According to the learned counsel for the
petitioner, for appointment of Public Prosecutor either in the High Court
or at the Sessions Courts in the State, a detailed procedure has been
provided. Sec.24 provides that, the District Judge in consultation with
Sessions Judge shall prepare a panel of names of persons who are in his
opinion, fit to be appointed as Public Prosecutor or Additional Public
Prosecutor for that District. The learned counsel for the petitioner
contended that though a comprehensive procedure for appointing a
Public Prosecutors has been provided under the Statute and in the case
W.P(C).No.35976 of 2016
of Legal Advisers and Additional Legal Advisers as contemplated under
Ext.P4, obviously, the above procedures have not been complied with.
6. The learned counsel referred to Sec.2(1) of the Kerala Public
Services Act 1968 and the Kerala Government Law Officers
(Appointment and Conditions of Service) and Conduct of cases Rules,
1978. Rule 2(b) of the Rules defines Government Law Officer as a
person appointed by the Government to conduct Government cases in
any court or the Tribunal in the State, or in the Supreme Court and
includes a Laison Officer in the High court, Pleader appointed to a
Government in a Munsiff court, Special Government Pleader, Special
Public Prosecutor, Government Pleader for arbitration proceedings and
Standing Counsel for the State in the Supreme Court. Relying on it, it
was contended that, for conducting any case before any court or any
Tribunal, Government will have to appoint a Government Law Officer as
defined under Rule 2(b) of Ext.P2 Rules. The Special Court being a
court as referred to under the Cr.P.C, for conducting prosecution,
Government will have to appoint Law Officers who satisfy the
qualifications prescribed in Rule 2. It was contended that, Rule 8
provides for the method of appointment of officers and it was
imperative that only Government Law Officers who are appointed in
accordance with Ext.P2 Rules alone can conduct prosecution before the
Special Court. It was contended that, Ext.P2 Rules were framed in
consonance with Sec.24 of the Code of Criminal Procedure and Ext.P4
was issued in complete deviation from the above procedure.
W.P(C).No.35976 of 2016
7. According to the petitioner, Ext.P4 evidences that, it was in
violation of Sec.24 of the Cr.P.C. Consultation with Special Judge was a
predominant necessity contemplated under Sec.24(4) of Cr.P.C, whereas
no such consultation was contemplated or prescribed in Ext.P4 Rules.
Under Sec.24(4) of the Cr.P.C, a panel of names of persons fit to be
appointed as Public Prosecutor or Additional Public Prosecutor for the
Government shall be prepared by the District Magistrate in consultation
with the Sessions Judge. This clause was absent in Ext.P4 and
accordingly, persons appointed under Ext.P4 cannot be termed as
Public Prosecutor as defined under section 2(u) of the Cr.P.C, it was
argued.
8. However, countering this contention, learned Special
Government Pleader for the Vigilance and also the State relied on the
elaborate pleadings touching on the above allegations and contended
that the appointment of the Legal Adviser/Additional Legal Adviser to
the Vigilance was governed by the Kerala State Legal Advisers
(Vigilance and Anti-Corruption Bureau) Service, 2002. Qualification has
been prescribed for direct recruitment of Additional Legal Advisers.
Legal Adviser has to be appointed by promotion from the category of
Additional Legal Advisor in the Vigilance and Anti-Corruption Bureau on
the basis of merit, ability and seniority. By virtue of Sec.5(3) of the
Prevention of Corruption Act, when the State of Kerala has framed
Special Rules creating a vacancy of LA and ALA to conduct prosecution
of cases before the Special Judge, by virtue of Sec.5(3) of the PC Act,
W.P(C).No.35976 of 2016
they assume the duty and role of the Prosecutor.
9. In Dr.V.K.Rajan and Others v. State of Kerala [2007(4)
KHC 828 (DB)] it was held that, Legal Adviser, Vigilance and Anti-
Corruption Bureau who was legally empowered to prosecute cases
under the Act could present application before the District Court under
the Criminal Amendment Ordinance 1944 and observed that, there was
no violation of Sec.24 Cr.P.C. Referring to the legal position, Division
Bench held that, Sec.5(3) of the PC Act provided that the Court of
Special Judge shall be deemed to be a Court of Session and the person
conducting a prosecution before a Special Judge shall be deemed to be
a Public Prosecutor as well. Hence, in the legal capacity of a Public
Prosecutor, the Legal Adviser who is legally empowered to prosecute
the cases under the PC Act had presented the disputed application in
that case, and hence it was held to be valid. The status and the
competency of the Legal Adviser was incidentally considered by the
Division Bench in the above decision.
10. According to the Special Government Pleader Sec.6 of the
Cr.P.C had classified the different criminal courts, which were besides
the High Court and the courts constituted under any other law. Sec.7 of
the Code dealt with the territorial division of the Sessions Division, on
the basis of the District and by virtue of Sec.9 of the Code, Judge of
every Session will be appointed by the High Court. It was contended
that, provisions of Sec.24 of the Code applies only in case of
appointment of Public Prosecutors to conduct cases before the the High
W.P(C).No.35976 of 2016
Court/Sessions Divisions/Sub Divisions constituted under the Code and
not before the Courts or Special Judges established under the Special
Statutes.
11. Evidently, Special Court for Vigilance is appointed under the
provisions of the Special Statutes, namely the PC Act. The Legal
Advisers/Special Legal Advisers of the Vigilance and Anti-Corruption
Bureau are appointed to the post created in the Vigilance and Anti
Bureau and they are authorized by Special Rules to conduct
prosecution. Evidently, the Kerala Government Law Officers
(Appointment and Conditions of Service) and Conduct of Case Rules
1978 and Kerala State Legal Advisers (Vigilance and Anti-Corruption
Bureau) Service 2002 are issued exercising the powers conferred under
Sec.2(1) of the Kerala Public Service Act 1968 and both the Rules
operate in different fields. The Kerala Government Law Officers
(Appointment and Conditions of Service and Conduct of Case Rules)
1978 relates to the appointment of Law Officers on tenure basis and
their appointments are co-terminus with the expiry of the tenure of
appointment. On the other hand, Legal adviser/Additional Legal Adviser
to the Vigilance Department and Assistant Public Prosecutor Gr.1 and 2
formed a separate class in the Kerala General Service, invoking Article
309 of the Constitution of India, by virtue of GO(MS) 472/PD/62 dated
07.09.1962, produced as Ext.R1(a).
12. In K.J.John, Assistant Public Prosecutor v. State of Kerala
and Others (1990 AIR 1902) Supreme Court had occasion to
W.P(C).No.35976 of 2016
extensively deal with the legality of the said Rule and confirmed its
legality. Referring to the distinction in relation to the Assistant Public
Prosecutor in the other hand and Additional Public Prosecutor in one
hand, the Supreme Court in State of U.P and Another v. Johri Mal
[AIR 2004 SC 3800] and in Samarendra Das, Advocate v. State of
West Bengal and Others. [AIR 2004 SC 2924]. The Supreme Court
held that an Assistant Public Prosecutor was an employee of the State
and he holds civil post and was answerable for his conduct to the higher
statutory authority. His appointment was governed by the respective
Rules framed by the Government .
13. In the light of the above, the contention of the petitioner that
the appointment of persons as a separate class in the Kerala General
Service through Special Rules to conduct prosecution before the Special
Judge is against the provisions under Sec.24 of PC Act is not at all
sustainable.
14. Advancing the third contention, learned counsel for the
petitioner relied on Exts.P5 and P6 proceedings. Evidently, Exts.P5 and
P6 show that the above notification was not issued pursuant to a
cabinet decision nor was it laid before the State Legislature as
contemplated under the Rule. The premise of contention was that, since
it was not laid as contemplated under Rule 2(2) of the Kerala Public
Service Act 1968, Ext.P4 was bad and liable to be interfered with.
Evidently, this issue has been considered in a catena of decisions which
were relied on by the learned Prosecutor. One of the earliest decisions
W.P(C).No.35976 of 2016
on the point is the decision of the 5 Judges Bench of the Supreme Court
in Jan Muhammad Noor Muhammad Bagban v. The State of
Gujarat and Another [AIR 1966 SC 385]. The validity of the Rules
was canvassed on the ground that, it was not laid before the State
Legislature. Supreme Court noted that, it was true that the Legislature
had prescribed that the Rule shall be placed before the House of
Legislature but, failure to place the Rules before the House of
Legislature does not affect the validity of the Rules merely on the
ground that they have not been placed before the Legislature. Similar
argument was considered in detail by a subsequent decision of the
Supreme Court in Atlas Cycle Industries and Others v. State of
Haryana [AIR 1979 SC 1149]. The Rule provided that, every order
made by the Central Government or by any officer shall be laid before
both Houses of the Parliament. Supreme Court held that, it did not
provide that it shall be subject to the negative or affirmative resolution
by either House of Parliament. It also did not provide that it shall be
open to the Parliament to approve or disapprove the order so laid. It
also did not say that it shall be subject to modification which either
House of Parliament, may in its wisdom, think it appropriate to provide.
On the basis of earlier decisions, the Supreme Court held that, in the
absence of any specific provision providing that laying of the Rules
before the Parliament should be made a conditional precedent to their
acquiring validity and that, it will not take effect until it is laid and
approved by the Parliament, it cannot be a mandatory provision. It was
W.P(C).No.35976 of 2016
held that if the Legislature had intended that the same shall be
mandatory, it would have expressly said so by employing the
appropriate negative language. This view was reiterated by this Court
in Jyoti Ignatius v. State of Kerala [2010(3) KLT 721] and by a
Division Bench of this Court in Kunjukunju v. State of Kerala
[2005(1) KLT 364] and by the Supreme Court in Vineeth Agarwal v.
Union of India [2007(13) SCC 116]
15. In the light of above, even if Ext.P4 is not laid before the State
Legislature, that by itself will not invalidate the Rule. After having
evaluated all the three contentions set up by the petitioner, I find myself
unable to subscribe to any of the grounds of attack projected by the
petitioner. There is no merit in the contentions set up and all are liable
to be found against the petitioner. Consequently, writ petition is liable to
be dismissed.
In the result, writ petition fails and is dismissed.
Sd/-
SUNIL THOMAS
Judge
Sbna/
W.P(C).No.35976 of 2016
APPENDIX OF WP(C) 35976/2016
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE FINAL REPORT IN CRIME
C.C.1/2014/PTA.
EXHIBIT P2 TRUE COPY OF THE KERALA GOVERNMENT LAW
OFFICERS (APPOINTMENT AND CONDITIONS OF
SERVICE) AND CONDUCT OF CASES RULES,
1978.
EXHIBIT P3 TRUE COPY OF THE G.O.(P)NO.23/2009 LAW
DATED 5-10-2009 BY THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE G.O.(P)NO. 3/2002 VIG.
DATED 15-1-2002 PUBLISHED IN THE
GOVERNMENT GAZETTE DATED 22-1-2002.
EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS
NO.11093/C1/2016/VIG. DATED 15-10-2016 OF
THE STATE PUBLIC INFORMATION OFFICER,
VIGILANCE DEPARTMENT.
EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS NO.4489/CPL
3/2016/L.A. DATED 17-10-2016 OF THE STATE
PUBLIC INFORMATION OFFICER, SECRETARIAT
OF THE KERALA LEGISLATURE.
EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS
NO.12712/SUB.C.D2/98/LEG. DATED 19-12-
2001 OF THE SECRETARIAT OF THE KERALA
LEGISLATURE.
EXHIBIT P8 TRUE COPY OF THE 197TH REPORT OF THE LAW
COMMISSION OF INDIA.
