Kerala High Court
Reena N vs State Of Kerala on 8 July, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 8TH DAY OF JULY 2025 / 17TH ASHADHA, 1947
CRL.MC NO. 1006 OF 2025
CRIME NO.7/2023 OF VACB, KOLLAM, KOLLAM
PETITIONER/2ND ACCUSED:
REENA N
AGED 52 YEARS
W/O LAJI, RESIDING AT SOUPARNIKA,
MUTTAPAM PARIPALLY, P.O KOLLAM,
PIN - 691574
BY ADVS.
SHRI.AMITH KRISHNAN H.
SMT.ANNA MARY MATHEW
MS.GAYATHRI C.H.
SMT.P.DEVIKRISHNA
SHRI.B.G.HARINDRANATH (SR.)
RESPONDENTS/STATE AND DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 HARRISON
AGED 57 YEARS
S/O ANTONY RISBHAVANAM PERAYAM PADAPAKKARA P.O
KUNDARA, KOLLAM, PIN - 691501
SRI.RAJESH.A, SPECIAL PUBLIC PROSECUTOR VACB
SMT.REKHA.S, SR. PUBLIC PROSECUTOR VACB
THIS CRIMINAL MISC.CASE HAVING COME UP FOR ADMISSION
ON 30.06.2025, THE COURT ON 08.07.2025 PASSED THE
FOLLOWING:
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2
CR
ORDER
Dated this the 8th day of July, 2025
This Criminal Miscellaneous Case has been filed
under Section 528 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (hereinafter referred to as 'BNSS' for short), to quash
Annexure A2 FIR No.7/2023/KLM of the Vigilance and Anti-
Corruption Bureau, Kollam Unit, now pending on the files of
the Enquiry Commissioner and Special Judge,
Thiruvananthapruam. The petitioner herein is the 2nd accused
in the above case.
2. Heard the learned senior counsel for the
petitioner/ 2nd accused and the Special learned Public
Prosecutor in detail. Perused the relevant records.
3. The prosecution case is that the defacto
complainant, who is a licensed document writer, when
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presented three sale deeds on 12.06.2023 before the Sub
Registrar, Kundara, for registration, as part of conspiracy
hatched between the 1st accused, who is the peon of the office
and the 2nd accused, the Sub Registrar, the 1st accused
demanded Rs.4,500/- (Rupees four thousand five hundred
only) as bribe, i.e., at the rate of Rs.1,500/- (Rupees one
thousand five hundred only) for one document, for registering
the above documents. When the complainant informed the 1 st
accused that he did not have the money, the 1 st accused
informed him that two sale deeds would only be registered on
12.06.2023 and registration of the third one would be done on
13.06.2023 (tomorrow), for which Rs.4,000/- (Rupees four
thousand only) had to be entrusted to him. The further case of
the prosecution is that, pursuant to the said demand, on
13.06.2023, the complainant met the Deputy Superintendent
of Police (Dy.SP), VACB, Kollam, and pre-trap proceedings
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initiated. Thereafter, after applying phenolphthalein powder in
8 notes for the value of Rs.500/-, the complainant reached the
office at 4.50 pm and the Dy.SP waited outside. Then the
complainant along with Vinod Kumar entered inside the Sub
Registrar Office and saluted Smt.Reena, the Sub Registrar
Officer. Then Reena instructed him to go to the record room
behind her seat, by gesturing with her right hand. When he
hesitated to enter into the record room, Suresh (A1) called him
inside, and he entered therein. Then Suresh said that the
amount should not to be reduced and showed his right hand.
Soon the complainant handed over the bribe money, which
was kept in his pocket, to Suresh, and Suresh opened the
same by using both his hands and placed inside a file board.
Vinod witnessed the same. Thereafter, the 1st accused was
arrested at 5.25 pm and as per the prosecution case, after
recording the arrest of the 1st accused and after completing the
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formalities of trap, the second accused was also arrested at
7.15 pm from the office itself. On this premise, the prosecution
alleges commission of offences punishable under Section 7 of
the Prevention of Corruption Act, 1988 as amended by
Prevention of Corruption Act, 2018 (hereinafter referred to as
'the PC Act, 2018' for short) as well as under Section 120B of
the Indian Penal Code (hereinafter referred to as 'IPC' for
short) by accused Nos.1 and 2.
4. In this matter, earlier the petitioner/2 nd
accused filed a petition seeking quashment of the same FIR
vide Crl.M.C.No.1944/2024 and the same was later dismissed
as withdrawn on recording the submission made by the then
counsel seeking permission to withdraw the same. Annexure
A2 is the order therein.
5. The learned senior counsel for the petitioner
canvassed quashment of the FIR mainly urging that enquiry or
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inquiry or investigation as against the petitioner is specifically
barred under Section 17A of PC Act, 2018. He also pointed
out that as per the 1st proviso to Section 17A of the PC Act,
2018, the only exemption to avoid prior approval mandated
under Section 17A of PC Act, 2018, are cases where 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. The learned senior counsel has placed decision of the
Apex Court in Yashwant Sinha and others V. Central Bureau
of Investigation through its Director and Another, reported in
(2020) 2 SCC 338, with reference to paragraph Nos.116, 117
and 118 to buttress his point and the same reads as under:
"116. In the year 2018, the Prevention of
Corruption (Amendment) Act, 2018 (hereinafter referred
to as "the 2018 Act", for short) was brought into force on
26-7-2018. Thereunder, Section 17-A, a new section was
inserted, which reads as follows:
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"17-A. Enquiry or inquiry or
investigation of offences relatable to
recommendations made or decision taken by
public servant in discharge of official functions
or duties.- (1) 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
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:
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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."
(emphasis supplied)
117. In terms of Section 17-A, 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
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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 17-A was inserted. The complaint is dated 4-10-
2018. Para 5 sets out the relief which is sought in the
complaint which is to register an FIR under various
provisions. Paras 6 and 7 of the complaint are relevant in
the context of Section 17-A, which read as follows:
"6. We are also aware that recently,
Section 17-A of the Act has been brought in by way
of an amendment to introduce the requirement of
prior permission of the Government for investigation
or inquiry under the Prevention of Corruption Act.
7. We are also aware that this will place
you in the peculiar situation, of having to ask the
accused himself, for permission to investigate a
case against him. We realise that your hands are
tied in this matter, but we request you to at least
take the first step, of seeking permission of the
Government under Section 17-A of the Prevention
of Corruption Act for investigating this offence and
under which, "the concerned authority shall convey
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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".
(emphasis supplied)
118. Therefore, the petitioners have filed the
complaint fully knowing that Section 17-A 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 17-A 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 17-A. Under the law, as it stood,
both on the date of filing the petition and even as of
today, Section 17-A 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
17-A but when it comes to the relief sought in the writ
petition, there was no relief claimed in this behalf.
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6. That apart, the learned senior counsel for the
petitioner also placed decision of the Madhya Pradesh High
Court in Yogesh Nayyar & anr Vs. State of M.P. & anr.
reported in ILR 2023 MP 1974 (DB), where the mandate of
Section 17A of the PC Act, 2018 was considered and for want
of prior approval under Section 17A of the PC Act, 2018, FIR
in the said case was quashed by the Madhya Pradesh High
Court. In addition to that, the decisions of the Apex Court in
Ashoo Surendranath Tewari versus Deputy
Superintendent of Police, EOW, CBI reported in (2020) 9
SCC 636 and Neeraj Dutta V. State (Government of NCT of
Delhi) reported in (2023) 4 SCC 731 also have been placed in
support of this contention.
7. The learned Special Public Prosecutor
vehemently opposed quashment of the FIR, mainly contending
that, in the instant case, both accused persons were arrested
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when the 1st accused accepted bribe as demanded by the 1 st
and 2nd accused after hatching conspiracy, as evident from the
statement of the complainant, which would show that when the
complainant met the Sub Registrar Officer at 4.50 pm, she
made signs by showing her hands to go to the record room to
effect the payment. Thereby the complainant was directed to
go inside the record room by the 2nd accused where the 1st
accused was standing. Therefore, in the instant case, the 1st
proviso to Section 17A of PC Act, 2018 would squarely apply
and in such view of the matter, in the instant case, the enquiry
or inquiry or investigation does not require any prior approval,
as contended by the learned senior counsel for the petitioner.
The learned Special Public Prosecutor placed a decision of
the Apex Court in Central Bureau of Investigation v. Santosh
Karnani, reported in 2023 KHC 6391, with reference to
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paragraph Nos.33 and 34, wherein paragraph No.34, the Apex
Court held as under:
"34. As may be seen, the first proviso
to S.17A refers to cases wherein a public servant is
charged with acceptance of an undue advantage or
attempt thereof. A prior approval or sanction to
investigate such an officer in a trap case is likely to
defeat the very purpose of trap and the
investigation, which is not the underlying intention of
the legislature. The investigation against
Respondent No.1, being an accused of demanding
a bribe, did not require any previous approval of the
Central Government. That apart, the accusation
against Respondent No.1 does not revolve around
any recommendations made or decisions taken by
him in his quasi-judicial or administrative capacity."
8. In this case, the crucial question to be
addressed is whether the petitioner who is arrayed as the 2 nd
accused was arrested on the spot on the charge of accepting
or attempting to accept any undue advantage for herself or for
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any other person to apply the 2nd provision to Section 17A of
the PC Act, 2018. It is true that as per Section 17A of the PC
Act, 2018, 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. In
Nara Chandrababu Naidu V. State of Andhra Pradesh
(2024 KHC OnLine 6031), a two Bench of the
Apex Court expressed contrary opinion on the interpretation of
Section 17A of the PC Act, 2018, as also its applicability to the
subject case and referred the matter before the Constitution
Bench and the said issue is now to be considered by a
Constitution Bench of the Apex Court and the decision therein
will hold the field thereafter. In the said case also, the Apex
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Court observed that the observations in Yashwant Sinha and
Others (supra), and observed as under:
"60.(24) The judgment in case of
Yashwant Sinha and Others vs. Central
Bureau of Investigation (supra), relied upon by
Mr.Salve also would not be of any help to the
appellant. Mr.Slave has relied upon the
observations made by Hon'ble Justice Joseph in
his concurring judgment, which according to
Mr.Rohtagi was a discordant note in variance with
the main judgment of two judges. Be that as it
may, what has been observed by Justice Joseph
is that S.17A constitutes a bar of any enquiry,
inquiry or investigation without the previous
approval of the concerned authority. The said
observation nowhere states that S.17A shall
operate retrospectively or retroactively."
9. No doubt, the 1st proviso to Section 17A of
PC Act, 2018, states that no such approval shall be necessary for
cases involving arrest of a person on the spot on the charge of
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accepting or attempting to accept any undue advantage for himself
or for any other person. Proviso (2) to Section 17A further states
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.
10. Addressing the mandate under Section 17A
of the PC Act, 1988, as amended in 2018, the only exception
to the application of the said provision is the situation stated in
the 1st proviso. The 1st proviso stipulates that no previous
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. So, in order to apply the 1 st proviso in the instant case,
it is necessary to find that the petitioner herein is excluded
from the purview of the 1st proviso. In this connection, it is
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necessary to address the facts of the case. This case was
registered as per crime No.7/2023/Kollam of VACB, Kollam
Unit, at about 15 hours on 13.06.2023, based on the
information received on 12.06.2023. The precis of the
prosecution allegation is that for registering three sale deeds,
produced by the complainant on 12.06.2023 before the Sub
Registrar, Kundara, the 1st and the 2nd accused demanded
bribe at the rate of Rs.1,500/- each. When the complainant
said that he did not have the money demanded to pay on
12.06.2023, the 1st accused informed him that two sale deeds
would be registered on 12.06.2023 and the third one would be
registered on the next day (13.06.2023) and for which,
Rs.4,000/- was demanded as bribe. In the First Information
Statement given by the complainant, these aspects have been
stated elaborately. In fact, the 1st accused was arrested when
he demanded and received Rs.4,000/- at about 5.25 pm
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(17.25 hours) on 13.06.2023. It is seen from the statement of
complainant that the complainant along with one Vinod,
another official of the Vigilance, went inside the Sub Registrar
Office and when he saluted the petitioner, the petitioner gave
sign by raising her right hand to go to the record room behind
her seat. Acting on the sign, the complainant moved towards
the record room and hesitated to enter into the record room,
then the 1st accused put his head outside and invited him to
the record room. Then he accepted Rs.4,000/- after
commending that the amount should not be reduced. It is true
that though the 1st accused was arrested at about 5.25 pm on
13.06.2023, after getting recovery of Rs.4,000/- he borrowed
from the complainant, and after questioning him,
subsequently, at 7.15 pm on the same day, the petitioner/2 nd
accused also was arrested.
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11. Even though the learned senior counsel for
the petitioner argued that the petitioner was not arrested from
the office while accepting or attempting to accept bribe, as
pointed out by the learned Public Prosecutor, the records of
the prosecution would show that both of them were arrested
from the office i.e., the spot where the 1 st accused demanded
and accepted bribe for himself and for the 2nd accused, that
too, as signalled by the 2nd accused, as alleged by the
complainant. Therefore, the contention raised by the learned
senior counsel for the petitioner to read the case of the
petitioner outside the purview of the 1 st proviso to Section 17A
of the PC Act, 2018, could only be negatived. Thus, for the
investigation as against the petitioner, the sanction under
Section 17A of the PC Act, 2018, is not necessary.
12. In the instant case, it is interesting to note
that, earlier, the petitioner filed Crl.M.C. 1944/2024 and sought
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quashment of this same FIR and later the said plea was
withdrawn and accordingly, the same was dismissed as
withdrawn. Now the question is, what is the legal effect of
withdrawal of such a petition when a similar petition has been
filed ignoring the withdrawal. Even though the dismissal of the
petition as withdrawn does not operate as res judicata since
no decision on merits was taken, the principle of estoppel
would apply in such situations. No doubt, estoppel prevents a
party from asserting something contrary to what is implied by
previous actions, statements or rulings. If a second petition,
after withdrawing an earlier petition filed, for the same relief on
the same facts, that is akin to seeking a relief which was
abandoned earlier. Therefore, such a plea would deserve
dismissal for the said reason alone holding the same as an
abuse of process of court.
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13. In view of the discussion and the finding
entered hereinabove, the challenge in this Crl.M.C. found to
be meritless and is liable to fail.
14. In the result, this Crl.M.C is dismissed with
liberty to the trial court to proceed as per law acting on the
final report filed in this crime.
Registry is directed to forward a copy of this judgment
to the trial court forthwith.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
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PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF THE FIR NO.7/2023/KLM
DATED 13.06.2023
Annexure A2 A TRUE COPY OF THE CRL MC 1944/2024
DATED 05.06.2024
