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