[Cites 6, Cited by 0]
Kerala High Court
Shri. Radhakrishnan M.S vs State Of Kerala on 10 February, 2026
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CRL.M.C.NO.601 OF 2026
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 10TH DAY OF FEBRUARY 2026 / 21ST MAGHA, 1947
CRL.MC NO. 601 OF 2026
CRIME NO.VC 11/2022/TSR/2022 OF VACB, THRISSUR, Thrissur
PETITIONER/ACCUSED NO.2:
SHRI. RADHAKRISHNAN M.S
AGED 70 YEARS
S/O SANKARAN, RESIDING AT MANGARA HOUSE,
KOTHAPARAMBU P.O, THRISSUR DT. (FORMER GRAMA
PANCHAYATH SECRETATY, ATHIRAPPILLY GRAMA PANCHAYATH
FROM 16.7.2002 TO 5.1.2004), PIN - 683105
BY ADVS.
SHRI.P.K.MURALYKRISHNAN
SRI.P.SANJAY
SMT.A.PARVATHI MENON
SRI.KIRAN NARAYANAN
SHRI.RAHUL RAJ P.
RESPONDENT/STATE:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM., PIN - 682031
2 DEPUTY SUPERINTENDENT OF POLICE
VIGILANCE AND ANTI-CORRUPTION BUREAU THRISSUR,
PIN - 680022
3 THE DIRECTOR
VIGILANCE & ANTI-CORRUPTION BUREAU, P.M.G VIKAS
BHAVAN P.O, OPPOSITE K.S.R.T.C DEPOT,
THIRUVANANTHAPURAM, PIN - 695033
4 P.M PUSHPANGADHAN
S/O MADHAVAN, PULIKKAL HOUSE, VETTILAPARA, THRISSUR
DISTRICT (FORMER PRESIDENT, ATHIRAPPILLY GRAMA
PANCHAYATH DURING THE PERIOD FROM 2010 TO 2015),
PIN - 680721
5 O.T ALEXANDER
S/O THOMAS, OLASSAYIL HOUSE, BEACH ROAD, KOCHI,
ERNAKULAM (OWNER OF AVENUE HOTELS & RESORTS,
ATHIRAPPILLY), PIN - 682001
SR.P.P REKHA.S
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
02.02.2026, THE COURT ON 10.02.2026 PASSED THE FOLLOWING:
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2
CR
ORDER
Dated this the 10th day of February, 2026
This criminal miscellaneous case has been filed
under Section 528 of the the Bharatiya Nagarik Suraksha
Sanhita, 2023 (hereinafter referred to as 'BNSS' for short), by
the 2nd accused in VC No.11/2022/TSR of the Vigilance &
Anti-Corruption Bureau (VACB), Thrissur, seeking the
following prayers.
"(i) Call for the original records
related to the investigation of VC 11/2022/TSR from
the 2nd respondent, peruse those records and
quash/set aside as illegal and unjustifiable
Annexure-6 (Vigilance Enquiry Report in VE
No.7/2021/TSR) and Annexure-5 (FIR in VC
No.11/2022/TSR of the Vigilance & Anti-Corruption
Bureau, Thrissur) and all further proceedings
thereon;
(ii) To allow the costs of these
proceedings to the petitioner;
(iii) To issue such other order, or
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direction as this Hon'ble Court may deem fit and
proper in the facts and circumstances of the case,
and in the interests of justice."
2. Heard the learned counsel for the petitioner
and the learned Special Public Prosecutor appearing for the
VACB in detail. Perused the relevant records, including the
statements, copies of minutes and the surveyor's sketch
placed by the learned Special Public Prosecutor.
3. On tracing the genesis of this case, it could be seen
that as on 05.11.2018, one Sri.Sunil Kumar T.K.,
S/o.Kumaran, Thekoodan (H), Kuttichira P.O., Chalakkudy,
Thrissur, lodged a complaint before the Deputy
Superintendent of Police (Dy.SP), VACB, Thrissur. The
allegations in the complaint would show that the President,
the Secretary and the committee members of Athirappilly
Grama Panchayath conspired with the owner of Avenue
Hotels & Resorts Pvt. Ltd, Athirappilly and pursuant to the
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said conspiracy, the Panchayat sold 51 cents of land
belonging to the Panchayat to the owner of the Avenue
Hotels & Resorts Pvt. Ltd, without obtaining permission from
the Government. The FIR would reveal further that the
allegations in the said complaint were enquired and it was
found that 51 cents of property belonged to Athirappilly
Grama Panchayat was encroached/possessed by the
Avenue Hotels & Resorts Pvt. Ltd during 2003 on the basis of
a wrong decision taken by the Grama Panchayat authority.
Pursuant to that, a detailed enquiry had been recommended
in this matter. Thereafter, a vigilance enquiry was ordered
vide Government Order No.Vig-D4/321/2019-Vig dated
18.10.2021, pursuant to Order No.E11 (VE 07/2021/TSR)
36235/2018 dated 09.08.2019 of the Director, Vigilance &
Anti-Corruption Bureau, Thiruvananthapuram.
4.The vigilance enquiry dated 31.12.2021 is produced
as Annexure A6 and the same reveals that prima facie, the
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allegations in the complaint were having force and in
consequence thereof this FIR has been registered. The
allegations in the FIR read as under :
"The former Athirappilly Grama
Panchayat President, Sri.P.M.Pushpangadhan
(A1) during the period of 2003, conspired with
Sri.O.T.Alexander, (A4) Owner of the Avenue
Hotels & Resorts Pvt. Ltd, to transfer 51 cents of
land vide Survey No.1674/4, 1675/1 of Athirappilly
Grama Panchayath to Avenue Hotels & Resorts
Pvt. Ltd and former Athirappilly Grama
Panchayath Secretary Sri.Radhakrishnan M.S.,
(A2) Panchayath Committee Members (A3)
without procuring government sanction. For this
the A1 and A4 made an agreement for
transferring the land to Avenue Hotels & Resorts
Pvt. Ltd without prior sanction from Government.
Based on the agreement, the hotel authorities
encroached the land owned by the Athirappilly
Grama Panchayath by closing the roads. The
suceeding Panchayat Secretaries of Athirappilly
Grama Panchayath since 2003, had not taken
any action to open the encroached land by the
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hotel authorities. It caused, A4 to illegally occupy
the 51 cents of government land of Athirappilly
Grama Panchayath and got an illegal gain to A4.
Eventhough the transfer of land was not done,
there was an attempt to transfer the land
possessed to Athirappilly Grama Panchayath with
the dishonest intention to make advantage to A4.
Thereby they have committed the offence U/s.15
r/w 13(1)(d) of the PC Act 1988 & 120B IPC."
5. The learned counsel for the petitioner/2 nd
accused vehemently argued that as far as the petitioner/2 nd
accused is concerned, the registration of FIR is an abuse of
process of court and according to him, after the introduction
of the Prevention of Corruption (Amendment) Act, 2018
(hereinafter referred to as 'PC (Amendment) Act, 2018' for
short), in order to go for an enquiry, inquiry or investigation
against a public servant, a prior approval under Section 17A
of the PC (Amendment) Act, 2018 is required. In this case,
even though the prosecution has a case that Annexure A3
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order, issued by the Additional Chief Secretary, K.Manoj
Kumar, dated 18.10.2021, is a prior approval within the ambit
of Section 17A of the PC (Amendment) Act, 2018, according
to the learned counsel for the petitioner, the same could not
be considered as an approval under Section 17A of the PC
(Amendment) Act, 2018. Therefore, the entire enquiry,
inquiry or investigation are without prior approval provided
under Section 17A of the PC (Amendment) Act, 2018 and
therefore, the entire enquiry, inquiry or investigation are
vitiated.
6. Apart from that, it is submitted by the
learned counsel for the petitioner that the first decision to
exchange the properties of the Avenue Hotels & Resorts Pvt.
Ltd, Athirappilly, with that of the property owned by the
Panchayat was taken on 14.08.2003. Thereafter, on
29.12.2003, it was decided to get prior approval from the
Government for transferring the land. The petitioner got
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transferred from the post of Secretary as on 05.01.2004 and
therefore, no offences under the PC (Amendment) Act,2018
could be found prima facie against the petitioner. If at all
some omission in discharging his official functions is to be
found, since he failed to apply for sanction from the
Government for transfer of the property, for which,
disciplinary proceedings ought to have been initiated, but no
disciplinary proceedings were initiated against the petitioner
during his service and now he had retired from service.
7. According to the learned counsel for the
petitioner, in the instant case, the prosecution as against the
petitioner is totally unwarranted and the report filed by the
investigating officer also cannot be believed even on reasons
and logical application of mind, as the prosecution at the one
end alleges transfer of the property and on the other end
alleges encroachment of the property by Avenue Hotels &
Resorts Pvt. Ltd, Athirappilly and both these allegations are
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mutually destructive.
8. It is pointed out further that in this case, FIR
was registered without recording the statement of the
complainant, Sri.Sunil Kumar T.K., or that of Sri.P.S.Suresh,
the Dy.S.P. who conducted vigilance enquiry and the report
of the vigilance enquiry is produced as Annexure A6. Thus
the FIR has been registered against the law. Accordingly,
the learned counsel for the petitioner pressed for the reliefs
sought for.
9. Opposing the prayer for quashment, it is
submitted by the learned Special Public Prosecutor that, in
fact, as per Annexure A2, when the Additional Chief
Secretary received letter from the Director, VACB, dated
09.08.2019, regarding the allegations raised in the complaint
by Sri.Sunil Kumar T.K., acting on the same, the Additional
Chief Secretary ordered to conduct vigilance investigation
and file report. In such view of the matter, Annexure A3 is the
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prior approval given by the Additional Chief Secretary under
Section 17A of the PC (Amendment) Act, 2018. Therefore,
the contention raised by the learned counsel for the petitioner
that, in this case, the prosecution failed to get prior approval
as contemplated under Section 17A of the PC (Amendment)
Act, 2018 would not succeed. It is submitted further that,
during the period of the decision to hand over the property,
i.e., on 14.08.2003 to 05.01.2004, the petitioner, who held
the post of the Secretary, also dealt with the affairs of the
office and the minutes were written in his handwriting.
Therefore, the prosecution allegations against the petitioner
could not be ruled out prima facie. According to the learned
Special Public Prosecutor, now the investigation is almost
complete and the prosecution sanction is awaiting to file final
report. It is also submitted that on getting the prosecution
sanction, the final report would be filed without delay. Apart
from that, the learned Special Public Prosecutor produced
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report of the Investigating Officer, dated 28.01.2026, wherein
paragraph Nos.5, 6, 7 and 8 are relevant and the same are
extracted as under:
"(5) It is submitted that the brief of the
Vigilance Case is that, Mr.Pushpangathan
(Accused No.1), the then President of the
Athirappilly Grama Panchayat (4th Respondent),
and Mr. Radhakrishnan (Accused No.2), the then
Panchayat Secretary (Petitioner herein), along
with other Panchayath members (Accused No.3),
while acting in their capacities as public servants,
entered into a criminal conspiracy with Mr. O.T.
Alexander (Accused No.4), the Managing Director
of Hotel Avenue & Resorts (P) Limited (5th
Respondent) during 2003, In pursuance of this
criminal conspiracy, Accused Nos.1 and 2
allegedly abused their official positions to execute
an illegal agreement with Accused No.4, thereby
facilitating the unauthorized transfer and
alienation of 51 cents of Athirappilly Panchayat
Puramboke land falling in Survey Nos.1674/4 and
1675/1 of Athirappilly Village, without obtaining
the prior approval from the State Government.
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(6) It is submitted that, during
investigation of the Vigilance case, is completed
and it is revealed in the investigation that the
accused including the Petitioner had committed
offences U/s 13(2) r/w 13(1)(d) of PC act 1988,
120(B) IPC and section 7 of Land conservancy
act 1957. The Prosecution Sanction Orders under
Section 19 of the Prevention of Corruption Act-
1988, from the concerned authorities are to be
obtained before submitting the Final Report
before the Honourable Enquiry
Commissioner&Special Judge Court, Thrissur,
against the Petitioner and other accused persons.
(7) It is humbly submitted that, the
Vigilance Enquiry -VE-7/21/TSR was conducted
by VACB, Thrissur Unit after procuring sanction
from State Government and in pursuance to the
Vigilance Enquiry, FIR in VC- 11/22/TSR was
registered. Hence the contentions raised by the
petitioner, regarding the lack of prior approval
under Section 17A of the Prevention of Corruption
Act-1988, is legally untenable. It is also submitted
that here the authority to issue the Section-17A
sanction of PC Act is State Government and the
same authority had ordered to conduct the
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Vigilance Enquiry on request of Director, VACB,
Thiruvananthapuram. Consequently, the
petitioner's prayer to quash the proceedings on
this ground is devoid of merit and is to be
rejected.
(8) It is submitted that, in the investigation it is
revealed that the decision regarding the transfer
of land falling in the Survey Number-1675/1 of
Athirappilly Village of extent 0.4020H(51 cents)
owned by the Athirappilly Gramapanchayath was
taken on 14/8/2003 after handing over the same
extent of land owned by the Avenue Hotels &
Resorts Pvt. Ltd Private Limited. On 29/12/2003,
it was decided by the Administrative Committee to
procure sanction from Director of Panchayaths,
for the mutual transfer of land. As per Rule-3 of,
The Kerala Panchayath Raj (Acquisition and
Disposal of Property) Rules to dispose of any
property owned by the Gramapanchayath, the
prior approval of State Government is to be
obtained. Eventhough, the decision to dispose of
the property was taken by the Administrative
Committee of the Athirappilly Gramapanchayth,
the petitioner had taken any action to procure any
sanction from the State Government or from
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Director of Panchayaths, in this regard. But on
1/12/2003 an agreement in this regard was
executed between, the President of the
Athirappilly Gramapanchayath and the Hotel
Avenue & Resorts (P) Limited; encroached the
land, owned by the Athirappilly
Gramapanchayath, and made illegal
constructions, in the pretext of the decisions taken
by the Administrative Committee and the
executed agreement. Thus the intentional
inaction, of the petitioner, conspiring with the
other accused persons of the Vigilance Case,
facilitated the encroachment of land by the Hotel
Avenue & Resorts (P) Limited having fair value of
Rs.1,33,86,600/ fixed by the State Government.
Thus, it is evident in the investigation of the case,
that the accused including the Petitioner had
committed offences punishable U/s 13(1) (d) r/w
13(2) of PC Act 1988, 120(B) IPC and under
section 7 of Land Conservancy Act 1957."
10. As regards the contention raised by the
learned counsel for the petitioner that no prior approval under
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Section 17A of the PC (Amendment) Act, 2018 was obtained,
a perusal of Annexure A3 is essential with the aid of Section
17A of the PC (Amendment) Act, 2018. Section 17A of the
PC (Amendment) Act, 2018 provides as under:
"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 alleged to have been committed, in
connection with the affairs of a State, of that
Government;
(c) in the case of any other person,
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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. On reading the statutory provisions, prior
approval is necessary to go with enquiry, inquiry or
investigation by a police officer into an offence alleged to
have been committed by a public servant where the alleged
offence is related to any recommendation made or decision
taken by such public servant in discharge of his official
function or duties. Thus, this case falls under the category of
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cases where prior approval under Section 17A of the PC
(Amendment) Act, 2018 is mandatory. Then the question is
what are the essentials to be contained in a prior approval
order. Since prior approval required to be granted only on the
strength of the allegations, a subjective satisfaction of the
approving authority to give the same alone is sufficient in this
regard. Annexure A3 would reveal that the same was issued
by the Additional Chief Secretary on 18.10.2021 based on
the letter given by the Director, VACB on 09.08.2019 to
conduct vigilance investigation regarding the allegations
raised by Sri.Sunil Kumar T.K. Thus, Annexure A3 satisfied
the requirements under Section 17A of the PC (Amendment)
Act, 2018. Therefore, the learned Special Public Prosecutor
is right in contending that Annexure A3 is the prior approval
under Section 17A of the PC (Amendment) Act, 2018. In view
of the discussion as above, the contention raised by the
learned counsel for the Panchayath requesting prior approval
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could not succeed.
12. In this case, coming to the second contention
raised, the complainant herein is Sri.Sunil Kumar T.K. and he
had lodged complaint in writing which was subjected to
vigilance enquiry ordered as per Annexure A3 and based on
the vigilance enquiry report, i.e., Annexure A6, as on
03.11.2022 FIR was registered. In such a case, it cannot be
held at the stage of investigation that the crime was registered
without any FIS, as the FIR would reveal these facts and
reference to the contents of the complaint and the contents of
the vigilance enquiry report.
13. It could be seen that there was a decision by
the Athirappilly Grama Panchayth as on 14.08.2003 to transfer
51 cents of property belonging to the Grama Panchayath in
exchange of a property that would be purchased by the
Avenue Hotels & Resorts Pvt. Ltd (P) Ltd. As on 29.12.2003,
another decision was taken to put up an application to the
Director, Local Self Government Department for getting
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necessary permission to exchange the property as decided.
In fact, it was the Secretary, who is the petitioner herein, had
a duty to apply for the permission of the Court being the
competent person. However, no such permission was sought
for as could be discernible from the materials placed by the
petitioner and also the prosecution though the petitioner
continued as Secretary till 05.01.2004 as admitted by him.
The allegation of the prosecution is that on 29.12.2003, the
date on which the Grama Panchayath committee decided to
get sanction from the Director to exchange the property
belonged to the Panchayath, an agreement was executed
between the President of the Grama Panchayath and the
owner of the Avenue Hotels & Resorts Pvt. Ltd. and
thereafter, the property of the Grama Panchayath was taken
possession by Avenue Hotels & Resorts Pvt. Ltd, and the
property now has been in possession and enjoyment of the
Avenue Hotels & Resorts Pvt. Ltd.
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14. The learned Special Public Prosecutor
placed a report of the Taluk Surveyor, Taluk Office,
Chalakkudy, dated 02.05.2025, which would show that
0.0373 hectares of land belonging to the Grama Panchayath
is illegally occupied by Avenue Hotels & Resorts Pvt. Ltd
(Green Forest) at present. Thus the prosecution records
would show that now Avenue Hotels & Resorts Pvt. Ltd has
been in possession of 0.0373 hectares of land owned by the
Grama Panchayath and the same resulted after the decision
taken by the Panchayath and execution of the agreement
between the President of the Grama Panchayath and the
owner of the Avenue Hotels & Resorts Pvt. Ltd.
15. Now the question to be considered is
whether the prayer in this petition to quash the FIR, as
against the petitioner, is liable to be allowed for the reasons
urged by the petitioner.
16. When the prosecution allegations and the
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contentions raised by the learned counsel for the petitioner
are taken into consideration, it is not in dispute that there was
a decision by the Panchayath committee as on 14.08.2003 to
transfer 51 cents of property belonging to the Panchayath in
exchange for a property that would be purchased by Avenue
Hotels & Resorts Pvt.Ltd. While taking the decision, the
petitioner was the Secretary. As on 29.12.2003, another
decision was taken by the committee to seek permission
from the Government to materialise the exchange. On the
same day, the President entered into an agreement with the
owner of the Avenue Hotels & Resorts Pvt. Ltd. and the
agreement was entered even on the date of the decision
without obtaining permission from the Government. As of
now, a private person running hotel business has been in
possession and enjoyment of 0.0373 hectares of land owned
by the Grama Panchayath and no steps were taken by the
Secretary herein or the subsequent Secretaries or any other
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responsible persons to recover the same from Avenue
Hotels & Resorts Pvt.Ltd. It is not disputed that till
05.01.2004, the petitioner worked as the Secretary, and
though he had retired now. In such a case, quashment of
the FIR against the petitioner, that too filed on the verge of
completion of the investigation of a crime registered in the
year 2022, cannot be considered so as to arrest filing of the
final report where the involvement of the petitioner in this
crime could be seen prima facie.
In such view of the matter, the prayer to quash the
FIR for the reasons urged by the petitioner cannot be
countenanced, and as a sequel thereof, this petition fails and
is dismissed accordingly.
Registry is directed to forward a copy of this order to
the Special Court forthwith.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
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APPENDIX OF CRL.MC NO. 601 OF 2026
PETITIONER ANNEXURES
ANNEXURE 1 A TRUE COPY OF THE COMPLAINT DATED
15.11.2018 FILED BY T.K. SUNIL KUMAR
ANNEXURE 2 A TRUE COPY OF THE LETTER DATED
09.08.2019 ISSUED BY THE 3RD
RESPONDENT TO THE ADDITIONAL CHIEF
SECRETARY, VIGILANCE DEPARTMENT,
SEEKING PERMISSION TO CONDUCT
VIGILANCE ENQUIRY INTO THE ALLEGED
SALE OF 51 CENTS OF PANCHAYATH
PROPERTY BY ACCEPTING BRIBE BY THE
SECRETARY, PRESIDENT, AND WARD MEMBERS
ANNEXURE 3 A TRUE COPY OF LETTER OF THE
ADDITIONAL CHIEF SECRETARY, VIGILANCE
(D) DEPARTMENT DATED 18.10.2021
ANNEXURE 4 A TRUE COPY OF RESOLUTION NO.20 DATED
14.08.2003 OF ATHIRAPPILLY GRAMA
PANCHAYATH, OBTAINED BY THE PETITIONER
UNDER THE RIGHT TO INFORMATION ACT
ANNEXURE 5 A CERTIFIED COPY OF THE FIR DATED
03.11.2022 REGISTERED BY THE VIGILANCE
& ANTI-CORRUPTION BUREAU, THRISSUR, IN
VC NO.11/2022/TSR UNDER SECTIONS 15
READ WITH 13(1)(D) OF THE PREVENTION
OF CORRUPTION ACT, 1988 AND SECTION
120B IPC
ANNEXURE 6 A CERTIFIED COPY OF THE VIGILANCE
ENQUIRY REPORT IN VE NO. 7/2021/TSR
DATED 31.12.2021
