Madras High Court
K.Shiva Kumar vs State Rep By Its on 6 January, 2025
Author: N.Seshasayee
Bench: N.Seshasayee
Crl.O.P.No.16673 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 13.12.2024
Pronounced on : 06.01.2025
CORAM : JUSTICE N.SESHASAYEE
Crl.O.P.No.16673 of 2024
and Crl.M.P.Nos.9775 & 10069 of 2024
K.Shiva Kumar .... Petitioner / Accused - 1
Vs
State rep by its
Inspector of Police
Vigilance & Anti-Corruption
Chennai. .... Respondent / Complainant
V.Anbazhagan (deceased)
Prayer : Criminal Original Petition filed under Section 482 of Cr.P.C., (Under
Section 528 of BNSS) praying to call for the records and quash the FIR in Crime
No.2 of 2023 on the file of the first respondent-police and to pass such further
order or orders as this Court may deem fit in the facts and circumstances of the
case.
For Petitioner : Mr.Ravi Anantha Padmanaban
Senior Counsel
Assisted by Mr.M.Hemanth Kumar
1/57
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Crl.O.P.No.16673 of 2024
For Respondent : Mr.J.Ravindran, Additional Advocate General
Assisted by Mr.K.M.D.Muhilan
Government Advocate [Crl Side]
ORDER
This is a petition under Section 528 of the BNSS, 2023 filed by the first accused
seeking to quash a FIR in Crime No 2 of 2023 on the file of the respondent
DVAC.
The Facts
2. At the relevant time material to this case, the petitioner was serving as the
Commissioner of Pallavaram Municipality. Based on a complaint by a certain
Anbalagan, now deceased, dated 27.03.2017 the first respondent has held a
preliminary enquiry and proceeded to obtain an approval as is mandated under
Sec.17A of the PCA vide proceedings dated 21.12.2021 and chose to register
the FIR against five individuals for offences under Section 120-B, 406, 409 IPC
and Section 13(2) r/w 13(1)(c) of the Prevention of Corruption Act, 1988. In
terms of the FIR, three-pointed allegations are made against the petitioner in
combination with other accused. They are:
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a) When the petitioner (A1) was the Commissioner of Pallavaram
Municipality, he had awarded a contract to M/s.Deepthi Enterprises,
arrayed as A3, which is a proprietary concern, to clean the toilets of 11
municipality-run schools for the year 2015 - 2016. This contract was
awarded to the proprietrix of A3 concern without following the tender
procedure envisaged under the Tamil Nadu Transparency in Tenders
Act, 1998. The second part of the allegation is that during summer
vacation of the year 2016 (May 2016), when the schools were not
functioning, when there was no need for cleaning the toilets, A3 raised
bills as if she had executed the contract work for May 2016 and this
document was accepted by A2, who was working as engineer of the
Municipality, acting on which the present petitioner had passed the
bills. The specific allegation is that based on the incorrect records, A1
paid full amount of Rs.8,55,000/- to M/s.Deepthi Enterprises. But he
was supposed to pay only a sum of Rs.1,75,000/- to M/s.Deepthi
Enterprises for cleaning 47 toilets that were used during the vacation
holidays of 2015, whereas, he had paid an additional sum of
Rs.6,85,000/- to M/s.Deepthi Enterprises and therefore A1
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Thiru.K.Shivakumar, caused financial loss to Pallavaram Municipality,
to the tune of Rs.6,85,000/- and committed grave offence, based on
which accusations were levelled against A1 to A3.
b) During the year 2015 - 2016 contract was issued to A4, a private
limited company, for executing the policy of the Government to
prevent and eradicate dengue in Pallavaram Municipality area. This
contract was issued without following the tender procedures. There is
no financial loss.
c) The third allegation is that for treatment of elephantiasis, orders were
placed with A5, a private limited company, which manufactures and
supplies a medicine named Fenthion by A1 without following the
tender procedures. Bills were paid without making any entry in the
stock register or without any entry in the distrubution register to show
their proof of dispatch and the suspected loss to the Municipality is
around Rs.4,92,487/-.
2.1 On the basis of the aforesaid allegations, the respondent sought the approval
under Section 17-A of the Prevention of Corruption Act, 1988 for registering a
case and to investigate the aforesaid allegations, secured it vide proceedings
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dated 21.12.2021, following which the FIR came to be registered, not
immediately, but after some 27 months, on 13.03.2023, some 6 years after the
complaint was made against the petitioner along with A2 and the agencies A3
-A5 who are all the alleged beneficiaries of the petitioner’s decision. At that
point of time, the petitioner was serving as the Commissioner of Erode
Municipal Corporation.
3. The FIR registered by the respondent is now under challenge, and the grounds
are:
a) The FIR is borne out of a personal grudge between the petitioner and the
de-facto complainant, who was already being prosecuted for blackmailing
the petitioner and other Municipal Commissioners, IAS, and IPS officers.
Thus, the bonafides of the de-facto complainant itself was seriously
questionable and the DVAC was clearly in error in not examining this
aspect.
b) The allegation that the petitioner had caused monetary loss by awarding
tenders to Deepthi Enterprises is totally false. As a matter of fact, the
undisputed records would show that the payments to the contractor were
made only on 18.02.2019 whereas the petitioner was relieved from the
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post of Commissioner on 24.08.2018 FN. The contract was extended on
account of the heavy rainfall which battered Chennai city in 2015, as a
result of which the Municipality faced a severe shortage of staff.
c) As regards the second allegation, on account of the heavy rainfall (over
50 cm) in December 2015, the Municipality was plagued with mosquito
menace and instances of dengue were being reported with alarming
frequency. Vide a letter dated 28.11.2017 a written assurance was given
by the Government to have a dengue control staff all through the year.
However, as there was no staff in the Municipality, the work was
completed through Relyan Facility Services Private Limited. These works
were completed with the approval of the Council and in fact the
Municipality had saved a total of Rs 7,78,320.
d) As regards the third allegation, the purchase of fenthion pesticide from
Pyrethrum India Private Limited was made pursuant to a council
resolution dated 29.02.2016. The supplies were also approved by the
Tamil Nadu Medical Service Corporation vide proceedings dated
14.10.2015. This purchase was made after following all the procedures
and obtaining approvals.
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e) In view of the above, it was clear that the approval accorded under
Section 17-A was without any application of mind since the material
which is available with the Government itself would show that the
aforesaid allegations are wholly vexatious, false and have been made out
of spite and ill will. Hence, the FIR must be quashed applying the
guidelines set out in State of Haryana Vs Bhajan Lal [1992 Supp (1)
SCC 335].
4. The respondent had filed its counter which disclosed:
a) Tender was invited for cleaning 184 toilets in 11 schools in Pallavaram
Municipality for a 30 day period. The tender was opened on 13.11.2015
and was awarded to the lowest bidder M/s Deepthi Enterprises (A3). The
bid was accepted by the Council vide resolution dated 30.12.2015, and
work order dated 30.12.2015 was given to A3 for one year instead of 30
days at the instance of A1. Thus, he violated the tender conditions to
favour A3. The tenure of A3 was extended periodically till the selection
of a new contractor in 2018.
b) A1 did not follow the instructions contained in GO Ms 166 dated
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23.11.2016. As regards the documents related to allegation No 1, the bills
paid to the contractor were received by the DVAC only on 11.07.2024
and the same is under perusal. Some of the documents are not available
and the same is under the process of being searched out.
c) As regards the second allegation, the documents relating to this allegation
are not available with the Municipality since it merged with the
Tambaram Corporation. The allegations could be verified only after
receipt of documents as and when the same are found.
d) As regards the third allegation, the documents relating to this allegation
are not available with the Municipality since it merged with the
Tambaram Corporation. The allegations could be verified only after
receipt of documents as and when the same are found.
Arguments
5.1 Heard Mr. Ravi Anantha Padmanaban, learned Senior Advocate for the
petitioner, and Mr.J. Ravindran, learned Additional Advocate General assisted
by Mr. K.M.D Muhilan, learned Government Advocate (Criminal Side).
5.2 During hearing, the learned counsel for the petitioner submitted that even
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the approval granted for registering the case under Sec.17A of the PCA could
not have been proper since the materials produced show definite non application
of mind while granting the approval. Sec.17A is not an ornamental
embellishment of zero value, but has been introduced in the statute with
considerable purpose as it aims to save honest public servant who makes
bonafide decisions and recommendations from being victimized. If the dictum
of the Supreme Court in State of Rajasthan v Tejmal Choudhary [2021 SCC
Online SC 3477] is analyzed, the Supreme Court has impliedly proceeded on the
basis that Sec.17-A is substantive in nature. As a matter of fact, Section17-A is
both procedural and substantive. It is procedural because it is not penal in
character; and it is substantive, since the need for a prior approval that it insists
for commencing an enquiry, inquiry or investigation has a larger purpose of
protecting honest and bonafide administrative decisions and recommendations
made by honest public servants from coming under the scanner. Hence, this
Court considered it fit to understand how Sec.17A can operate at the ground
level, and Mr. V. Karthic and Mr.John Sathyan, learned Senior Advocates were
appointed to assist this Court as Amici Curiae.
6.1 Opening with a statement that the petitioner has been doubly victimized,
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first at the instance of Anbalagan, a blackmailer, and secondly under the Act
since, notwithstanding the complaint of Anbalagan, the authority who was
enjoined with the responsibility of according approval under Sec.17A of the
PCA has not even attempted to verify the probable truth of the complaint with
reference to relevant Government Orders or other records in the Municipality.
And, despite the petitioner producing copies of all relevant records to prove the
falsity of the accusation made, the respondent has not even chosen to deny the
correctness of the documents so produced. And, these documents are available
to the authority who granted approval under Sec.17A to verify before arriving at
a decision to grant approval, argued the learned counsel. He proceeded to
argue:
a) Complainant Anbalangan was a publisher of a journal ‘Ullatchi Alasal’,
but his journal is but a medium for blackmailing public servants, and to
demand money lest he would publish false stories and spoil the image of
honest officers, and used to circulate his publication in the Municipality.
And, A1 became his victim when he made a demand for money. On
13.04.2017, Anbalagan met A1 and blackmailed him threatening to
publish false articles if he did not pay a sum of Rs 50,000. As A1 refused,
he published an article with false content. Again on 24.04.2017 the
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second respondent met A1 and demanded Rs 1.0 lakh. As his menace
became intolerable, on 26.04.2017 the petitioner lodged a complaint
before the St Thomas Mount Police Station complaining what he was
undergoing at the hands of the blackmailer, and this had led to the
registration of a FIR in Crime No 602 of 2017 against Anbalagan, for the
offences under Sections 506(i) and 384 IPC.
b) Anbalagan was a habitual blackmailer and it is believed that he had not
even spared those who are occupying high positions in the administrative
hierarchy. In the process, he had targeted a certain Parthiban, the then
Municipal Commissioner of the Coimbatore Corporation, and demanded
Rs 1 lakh from him. Parthiban lodged a complaint against Anbalagan,
based on which a case came to be registered against him, pursuant to
which Anbalagan was arrested and was remanded to judicial custody on
27.04.2017. It is on the very day the FIR was registered against him by
the St Thomas Mount Police Station on basis of the complaint of A1.
c) Anbalagan had made random accusation against A1. Given the fact that
the complainant was a black-mailer against whom multiple complaints or
FIRs have been filed at the instance of various public servants including
the petitioner, it was all the more necessary the approval-proceedings
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contemplated under Sec.17A of the PCA are not reduced to a farce.
Indeed, the respondent had taken few years to complete its enquiries
before registering the FIR. Did not these authorities have an opportunity
to refer to the very materials the petitioner has now produced to show why
the FIR itself has become a tool of victimisation?
The merit of the complaint must be appreciated in the backdrop of the fact that
the complainant has been a professional blackmailer.
6.2. Proceeding further, the learned counsel argued:
a) So far as the award of contract for cleaning the school toilets of the
Municipality is concered, the decision to award the contract was made by
his predecessor, vide his proceedings dated 31.07.2015. The petitioner
assumed charge as Commissioner only on 06.08.2015. The proceedings of
his predecessor dated 31.07.2015 would show that all procedures were
followed by his predecessor.
b) The first allegation is that the petitioner has awarded a contract to A3
without following the tender process and in particular had cleared the bills
raised by A3 for the month of May, 2016, for a sum of Rs.8,55,000/-
when he should have paid only Rs.1,75,000/-. The allegation was that
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during summer vacation since the schools are closed, the toilets need not
be cleaned. But so far as the award of the contract is concerned, the
Municipal Council had passed a resolution. The petitioner, as the
Commissioner of the Municipality had passed proceedings on 19.10.2015
calling for tenders, pursuant to which three individuals had participated in
the bid and contract was awarded to A3, as her quotation was the lowest
and her bid indeed was accepted and approved by the Municipal Council,
and it was recommended to A1 formally for his approval. A1 was satisfied
that the quotation of A3 was the lowest and approved the same
c) Secondly, so far as payment of bills for the month of May, 2016 to A3 is
concerned, the petitioner, as the Commissioner of Municipality, cannot
personally visit every school to ascertain whether A3 had executed the
work. He necessarily has to rely on the bills as presented before him as
per the procedure envisaged. As per the procedure, every month’s bills
might have to be raised by A3 and it has to be countersigned by the
Headmaster of the school as well as A2, the Engineer of the Municipality.
When these bills were presented before him for signature, the petitioner
necessarily has to trust the same, and accordingly he had passed the bills
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bona fide. After all, and as stated earlier, it is humanly impossible for the
Commissioner of a Municipality to inspect every school every day and to
personally ascertain whether school-toilets have been cleaned by the
contractor.
d) The next allegation was regarding the contract awarded to A4. Despite a
long preliminary enquiry spreading over five years, the investigating
agency has not been able to find any financial irregularities in the matter
of procuring their services. (Page 71 of the typed set of papers). The
tender was awarded to A4 not by the petitioner but by his predecessor in
office vide his proceedings dated 31.07.2015. As stated earlier, the
petitioner assumed charge as Commissioner of the concerned
Municipality only on 06.08.2015. Indeed the proceedings of the then
Commissioner of Pallavaram Municipality dated 31.07.2015 show that he
had followed the tender procedures and awarded contract to A4 as his
quotation was the lowest of the two who had participated in the bids.
Inasmuch as no financial irregularities are alleged against the petitioner
and since the contract was awarded only by following the tender
procedure and that too by the predecessor in office of the petitioner, the
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accusation against the petitioner cannot be sustained.
e) Turning to the supply of medicine Fenthion, the choice of the supplier
was identified by Tamil Nadu Medical Services Corporation Ltd. as could
be seen from the proceedings dated 14.10.2015. As required, each of the
Municipalities might have to enter into a formal contract with A5. This
was done. Indeed, despite the proceedings of the Tamil Nadu Medical
Services Corporation Ltd the medicine of A5 was tested for its quality
with Bangalore Test House, and only based on its report the Municipality
has chosen to go ahead with the procurement of medicine from A5 for
which a formal agreement was entered into. But the core allegation is that
no stock register or distribution register of the said medicine to the tune of
Rs.4,92,487/- was maintained. (The copies of the relevant stock register
and distribution register are made available in Page 100 to 111 of Vol.I of
petitioner's typed set of papers). Again if only the approval proceedings
under Sec.17A and the enquiry of the first respondent had been
meaningful, the petitioner herein would not have been forced to face the
agony and embarrassment of a criminal accusation against him.
Summing up his arguments the learned counsel submitted that the petitioner is
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being victimized for no fault of his. Even after being made aware of the
materials which the petitioner has now made available as part of his petition, the
prosecution is yet to make a candid statement on a matter which it has been
probing for seven years now, regarding something which is alleged to have
taken place about nine years ago.
7. Per Contra, Mr. J. Ravindran, the learned Additional Advocate General made
the following submissions:
a) The decision of the Government to outsource cleaning of toilets in the
schools run by the local bodies was declared by the Government vide
G.O.Ms.No.77, School Education Department, dated 13.04.2015. This
was replaced by G.O.Ms. No.166, Municipal Administration and Water
Supply (MA.IV) Department, dated 23.11.2016. It provides for
engagement of Private Service Provider Agency for cleaning the toilets,
removal of bushes around the toilets, sweeping the classrooms and dining
hall etc., in the schools run by the Municipalities, and these agiences shall
be identified as per the Tamil Nadu Transparency in Tenders Act. It
further stipulates in Clause-I (iv) that "an estimation shall be prepared by
the Urban Local Body adopting the rate (per day) fixed by the District
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Collector for the proposed sweepers / sanitary labourers". It also provides
vide Clause I (vii) (viii) (ix) that the schools shall be provided with
minimum of 1 female worker and 1 male worker for cleaning the toilet
and one sweeper for cleaning the school campus; and in cases of Girls'
schools, minimum two female workers shall be provided along with one
sweeper; and in case of Boys' schools, minimum two male or female
workers shall be provided along with one sweeper.
b) So far as Pallavaram Municipality is concerned, the following facts are
important :
➢ The petitioner as the Commissioner of Pallavaram Municipality had
invited tender vide his proceedings dated 19.10.2015, and the
period of contract was fixed at 30 days;
➢ In response to the tender, three service providers had responded and
the petitioner had awarded contract to A3 as if since it quoted the
least.
➢ It is after the award of the contract to A3 as indicated above, the
Government came out with G.O.Ms.No.166 dated 23.11.2016, to
which reference has been made above. And in terms of
G.O.Ms.No.166, contract can be awarded only by following the
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procedures of the Tamil Nadu Transparency in Tenders Act.
However, instead of going for tender, the petitioner had issued the
proceedings dated 30.12.2015 extending the period of contract to
one year from 01.01.2016. This is in blatant violation of tenor of
G.O.Ms.No.166, and he further extends it for three more months
from 01.01.2017 vide his proceedings dated 02.01.2017, which
again violates G.O.Ms.No.166. Moreover, he in his capacity as
Special Officer of the Municipality had made a proposal for
extending the contract to A3 from 01.04.2017 to 31.03.2018, and
approved his own recommendations in his capacity as the
Commissioner vide proceedings dated 30.03.2017.
➢ Thereafter, he again made a recommendation for extending the term
of contract to A3 from April 2018 till a new contractor was
selected, as Special Officer of the Municipality, and approved the
same in his capacity as the Commissioner vide proceedings dated
16.03.2018. There has been continuous breach of the intent behind
G.O.Ms.No.166.
➢ It is in these circumstances the Joint Director cum Assistant
Commissioner, Tambaram Corporation had addressed a complaint
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dated 08.08.2024, wherein he had indicated that Rs.297/- as the
daily wages payable for one staff as fixed by the District Collector
for 2014-2015, if it is so calculated for 11 schools at three staff per
school for 31 days, the total monthly outlay would be Rs.3,03,831/-
per month, whereas A3 was paid Rs.9,20,000/- per month, and by
this method there has been a wrongful loss to the Municipality to a
tune of Rs.1,10,91,042/- from 01.01.2017 to 30.06.2018.
c) And when this complaint was received, there was some enquiry made into
this and whereupon necessary approval was obtained and case has been
registered.
d) So far as the remaining two allegations regarding 'Mosquito eradication
scheme' and 'Medicine for Elephantiasis' are concerned, they are under
investigation.
8.1 The learned counsel for the petitioner would now make the following
submissions in reply:
a) To contend that G.O.(Ms) No.166 dated 23.11.2016 has replaced
G.O.(Ms) No.77 dated 13.04.2015 is fundamentally wrong. In
G.O.(Ms) No.77 dated 13.04.2015, the Government came out with a
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policy decision for cleaning the toilets of all schools run by local
bodies, and this G.O. was issued by the School Education Department.
However, the modalities of the same were not adequately delineated in
G.O.(Ms) No.77. It is in these circumstances, the Government came
out with G.O.(Ms) No.166 dated 23.11.2016, and this was issued by
Municipal Administration Department. In other words, to give effect to
the G.O. issued by the School Education Department, another G.O.
was issued by the Municipal Administration Department. Hence,
G.O.166 should not be read in isolation and in exclusion of G.O.(Ms)
No.77, but in conjunction with G.O.(Ms) No.77.
b) As readily contended by the learned Additional Advocate General,
G.O.(Ms) No.77 merely stipulated the number of toilets as the basis for
making an estimate, but in G.O.(Ms) No.166, it proceeds to qualify
that every school is entitled to be cleaned by three sanitary workers.
Whereas in the estimate prepared for the year before tender was
invited for award of contract to A3, one sanitary worker per day,
which as per the estimate, is required to clean four ladies toilets, four
gents toilets and toilets for physically handicapped persons and ten
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number of urinals. This is seen from Page 11 of Volume - I of
Petitioner's type-set. Now based on G.O.Ms.No.166, if every school
were to be provided with three sanitary workers, then the per day
wages payable to the sanitary worker will increase threefolds.
c) Indeed the per day wages for daily-rated sanitary workers as fixed by
the District Collector has been constantly on the rise. For instance, in
2016-2017, the wages for the daily-rated sanitary worker has increased
from 346 /- to 362/-. Now by capping the per day salary of sanitary
worker and limiting it to one worker per day based on the tender
quotation, the petitioner indeed has helped the Municipality to save
money.
d) On this aspect, the Joint Director cum Deputy Commissioner of
Tambaram Corporation in his proceedings dated 08.08.2024, has only
computed the salary for 33 sanitary workers for the year 2016-2017
and 2017-2018, not at the rates fixed by the Collector, but at the initial
rates fixed for the year 2015-2016, and he stops there. And this
proceedings did not take into account the cleaning materials which
necessarily include various items such as phenyl, toilet cleaning
powder, broomsticks etc. And G.O.(Ms) No.166, Clause No.III (i)
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provides that the materials required for cleaning the toilets must be
provided by the service provider itself, which implies, the estimate will
necessarily include this.
e) Thus by extending the contract of M/s.Deepthi Enterprises, at the rate
which M/s.Deepthi Enterprises has quoted in its quotation which led to
the issue of work order, the petitioner has only capped the total amount
payable.
8.2 Moving further, the learned counsel submitted that:
a) So far as the 30 days period for which the initial contract was awarded
is concerned, the notification inviting tender dated 19.10.2015 has a
tabulation with 5 columns. In Column 3 the estimated value of the
work is indicated as Rs.9.75 lakhs. And in Column 5 the period of
work is indicated as 30 days. What in effect it intended was the
estimated value of the contract mentioned in column 3 is for a period
of 30 days. This means the estimate which was prepared before the
tender was invited for cleaning the toilets was prepared for 30 days.
Here, extending the contract from 01.01.2016 for one year
immediately after the expiry of 30 days period in December, 2015, will
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not invite any criminality for the rate was still the same. It should not
be forgotten due to floods which the city witnessed in December,
2015, the entire city was floating. Therefore contingency decisions
were taken to manage the situation. Owing to the same, if at all it is
considered that this decision is bad, it cannot be tainted with
criminality. It is hence Sec.17A approval must be done with
seriousness.
b) Before 31.12.2016, G.O.166 has arrived in the scene. Clause I (xii)
thereof stipulates that the successful private service provider should
have an agreement with the local body and should have the witness of
Head Master of the concerned school, and that the agreement might be
terminated only if the service of the contractor was not satisfactory.
Therefore, the duration of the contract is extendable beyond
31.12.2016. The respondent now reads G.O.166 selectively.
c) This apart, Clause I (xiii) states that private service provider shall be
paid on monthly basis the amount quoted in the tender after getting the
performance satisfaction letter from the Head Master of the concerned
school, but the petitioner had not received any such communication of
dissatisfaction of the service rendered by the private service provider (A3).
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d) In almost every Municipality or Corporation, the same contractor is
retained year after year, essentially because Clause I (xii) of G.O.(MS)
No.166 provides that the contract can be terminated only upon the
Head Master of the school communicating his or her dissatisfaction
over the service provided by the contractor. Illustratively, the learned
counsel brought to the notice of this Court, the proceedings of the
Coimbatore City Corporation dated 31.08.2016, wherein they have
retained the same contractor to whom contract for cleaning the toilets
of the schools run by the Corporation was awarded pursuant to
G.O.(Ms) No.77, and the Coimbatore Corporation had invited a fresh
tender only on 19.01.2023. This implies, since the publication of
G.O.(Ms) No.77 till 19.01.2023, the same contractor continued in
other jurisdictions as well notwithstanding G.O.(Ms) No.166. And till
date, except the report of the Deputy Commissioner of Tambaram
Corporation dated 08.08.2024, wherein he had egregiously erred in
quantifying the loss, there is no audit objection on this issue.
8.3 So far as the communication of the Joint Director of Tambaram Corporation,
dated 08.08.2024 is concerned, it was issued during the pendency of the present
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petition, providing false information, which implied there is an attempt to witch-
hunt the petitioner and since the complaint of a blackmailer has come in handy,
it is being used to harass the petitioner. It is hence proper application of mind
under Sect.17A is essential before approval is granted.
9. In reply, the learned Additional Advocate General made the following
submissions. Clause I (xii) of G.O.(Ms).No.166 only enables continuation of the
contractor till a dissatisfaction is expressed by the Head Master of the school
vis-a-vis the service provided by the contractor, but it contemplates existence of
a contract as on the date of coming into force of G.O.(Ms).No.166. Therefore, if
the statement of the petitioner's counsel is to be appreciated, then there should
have been a valid and subsisting contract granted only for 30 days under
G.O.(Ms).77.
Discussion & Decision
10. There are two parts to this case. The one is on facts. The other is if the facts
as argued before the Court taken along with the materials provided by both sides
were to indicate that the prosecution case does not stand on surer footing, then
how far the application of mind is necessary under Sec.17A of the PCA. It is
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underscored that while three specific accusations are made in the complaint and
the same gets repeated in the FIR, till date the prosecution has been able to make
some statements only with regard to the first allegation, and nothing about
allegations 2 and 3.
11. There is merit in the argument of the learned AAG that at the time when FIR
is challenged, the Court shall confine its probe only to the extent of allegations
which the FIR discloses, and cannot travel beyond what it alleges. This Court
partially agrees with it. However, it is also necessary to emphasise that the
Court is not powerless to strike off a FIR if it is drenched and soaked in
malafide or where the allegations therein, even if their truth is accepted, do not
disclose an offence. The locus classicus governing the parameters for quashing
a FIR under Section 482 Cr.P.C (presently Section 528 BNSS, 2023) is the
decision of Ratnavel Pandian, J speaking for a Bench comprising of himself and
Jayachandra Reddy, J in State of Haryana Vs Bhajan Lal [1992 Supp (1) SCC
335]. Setting out the parameters to quash a FIR in exercise of inherent power
under Section 482 Cr.P.C, it was held:
“Where the allegations made in the first information report or
the complaint, even if they are taken at their face value and
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accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.”
Nevertheless, even in Bhajan Lal, the Supreme Court was alive to another
category of cases which may require a slightly nuanced approach. These classes
of cases are set out in paragraph 102(7) of the judgment which is as under:
“(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge.”
In Mahmood Ali Vs State of U.P. [(2023) 15 SCC 488], the Supreme Court has
explained the scope of the High Court’s powers in case involving malafides:
“11. At this stage, we would like to observe something important.
Whenever an accused comes before the Court invoking either the
inherent powers under Section 482 of the Code of Criminal
Procedure (CrPC) or extraordinary jurisdiction under Article
226 of the Constitution to get the FIR or the criminal
proceedings quashed essentially on the ground that such
proceedings are manifestly frivolous or vexatious or instituted
with the ulterior motive for wreaking vengeance, then in such
circumstances the court owes a duty to look into the FIR with
care and a little more closely.
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12. We say so because once the complainant decides to proceed
against the accused with an ulterior motive for wreaking personal
vengeance etc. then he would ensure that the FIR/complaint is very
well drafted with all the necessary pleadings. The complainant
would ensure that the averments made in the FIR/complaint are
such that they disclose the necessary ingredients to constitute the
alleged offence. Therefore, it will not be just enough for the Court
to look into the averments made in the FIR/complaint alone for the
purpose of ascertaining whether the necessary ingredients to
constitute the alleged offence are disclosed or not.
13. In frivolous or vexatious proceedings, the Court owes a duty to
look into many other attending circumstances emerging from the
record of the case over and above the averments and, if need be,
with due care and circumspection try to read in between the lines.
The Court while exercising its jurisdiction under Section 482 CrPC
or Article 226 of the Constitution need not restrict itself only to the
stage of a case but is empowered to take into account the overall
circumstances leading to the initiation/registration of the case as
well as the materials collected in the course of investigation. Take
for instance the case on hand. Multiple FIRs have been registered
over a period of time. It is in the background of such circumstances
the registration of multiple FIRs assumes importance, thereby
attracting the issue of wreaking vengeance out of private or
personal grudge as alleged.”
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The aforesaid decision is followed in Salib Vs State of U.P. [(2023 SCC Online
SC 947] and Achin Gupta Vs State of Haryana [2024 SCC Online SC 759].
12. Therefore, a FIR is neither beyond challenge nor beyond judicial review of
the Court. The issue here is whether the FIR in the instant case is liable to be
quashed, and if so, on what parameters? There are three specific allegations
which the FIR makes: (a) Awarding contract to A3 for cleaning the school
toilets; (b) Allegation about mosquito eradication programme; (c) Issue relating
to procurement and distribution of medicine for elephantiasis. And, the
petitioner literally took on the prosecution by placing materials in the form of
typed set of papers to defend these allegations in the FIR. He would then attempt
to highlight: (a) how baseless and frivolous the allegations in the FIR have been;
and (b) how a wrong prosecution could have been avoided if only the authority
who granted the approval had applied its mind to the materials that he had
produced, to which the authority had access.
13. Producing the letter issued by the approving authoirty under Sec. 17-A of
the P.C Act, for the perusal of the Court, the learned AAG submitted that
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proceedings under Sec.17A is not justiciable, for if investigation were to be
halted based on a perceived inadequacy of application of mind of the authority
granting approval, then it will hamstring the very purpose of the PCA, and hence
the Court may not be justified in embarking on a roving enquiry either of the
adequacy of application of mind by the approval-granting authority under
Sec.17A, or the materials which the accused may produce in defence of his case
at this stage, for Court is not expected to suspect a FIR, but to believe it.
Reliance was place on the ratio of the Supreme Court in State of Haryana Vs
Bhajan Lal [AIR 1992 SC 604].
14. According to Mr. V. Karthic, learned Senior Advocate, Sec. 17-A was
enacted pursuant to the judgment of the Supreme Court in Subramanian
Swamy Vs Union of India [(2014) 8 SCC 682] and he added that material
collected dehors the approval under Sec. 17-A cannot be obliterated in view of
the decision in Rishbud Vs State of Delhi [AIR 1955 SC 156]. Mr. John
Sathyan, learned Senior Advocate drew the attention of this Court to the SOP of
the Government of India for processing cases under Sec. 17-A which
contemplates that forwarding of clear and authenticated documents to the
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authority whose approval is mandatory for commencing any enquiry, inquiry or
investigation in terms of Sec.17A is mandatory. It was pointed out that para 4.2
of the SOP would indicate that the police officer must seek prior approval before
verifying the materials which are collected. Referring to the ratio in Shreeroopa
Vs State of Karnataka, [2023 SCCOnline Kar 68] the learned counsel submitted
that the power to evaluate the material collected by the IO was with the authority
at a time when such applies his mind to consider a case for grant/refusal of
approval. Hence, given the object behind Sec. 17-A, application of mind by the
aprroval-granting authoirty is sine qua non before any enquiry, inquiry or
investigation can take place.
15. This brings to fore a need to understand the functional objectives of Sec.17A
of PC Act pragmatically. In jurisdictions or in genre of cases where Sec.17A
does not have a role to play, there is greater merit in the contention that
whenever Courts are required to consider the sustainability of a FIR, it might
have to confine its enquiry to its contents for ascertaining if the FIR dislcoses an
investigable case. However, the Parliament in its legislative wisdom has chosen
to differentiate the criminal allegations against a public servant pertaining to the
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administrative decision taken or recommendation made from other classes of
offences, and therefore in the classes of cases where Sec.17A is applicable,
different consideration will necessarily prevail.
16. This now takes this Court to understand the scope of Sec.17A of the
Prevention of Corruption Act. The provision has an interesting history which
must be noticed. Vide Act 45 of 2003, Section 6-A was inserted into the Delhi
Special Police Establishment Act, 1946. The provision was as under:
“6-A.Approval of Central Government to conduct inquiry or
investigation.—(1) The Delhi Special Police Establishment shall not
conduct any inquiry or investigation into any offence alleged to
have been committed under the Prevention of Corruption Act, 1988
(49 of 1988) except with the previous approval of the Central
Government where such allegation relates to—
(a) the employees of the Central Government of the level of
Joint Secretary and above; and
(b) such officers as are appointed by the Central
Government in corporations established by or under any
Central Act, Government companies, societies and local
authorities owned or controlled by that Government.
(2) Notwithstanding anything contained in sub-section (1), 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
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gratification other than legal remuneration referred to in clause (c)
of the Explanation to Section 7 of the Prevention of Corruption Act,
1988 (49 of 1988).”
The constitutional validity of Section 6-A was assailed before the Supreme
Court in Subramanian Swamy Vs CBI [(2014) 8 SCC 682]. The contention
raised therein was that Section 6-A had the effect of shielding corrupt public
servants and was, therefore, violative of the rule of law enshrined in Article 14.
Section 6-A was eventually struck down by the Constitution Bench in 2014 in
the decision cited above.
17. Section 17-A of the PC Act is therefore a variant of Section 6-A of the Delhi
Special Police Establishment Act, 1946, and this Court is informed that there is
a challenge pending to its constitutional validity in the Supreme Court.
However, for the present, the Court must proceed on the basis of the provision
as it exists. Section 17-A was inserted by Act 16 of 2018 and came into force on
26.07.2018, and it 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
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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:
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.”
The terms “inquiry”, “enquiry”, and “investigation” have been elaborately explained
by the Supreme Court in Nara Chandrababu Naidu Vs State of Andhra
Pradesh [2024 SCC Online SC 47] and hence they do not require any reiteration.
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18. From a plain reading of the provision, it is apparent that the scope of
protection afforded by Section 17-A is now confined to alleged offences
emanating from (i) any recommendation made or (ii) decision taken by the
public servant while acting in discharge of his official functions or duties. In
such cases any form of enquiry, inquiry or investigation is statutorily barred
without obtaining previous approval from the authorities set out in Section17A
(a) –(c). The obvious object is to safeguard the public servant from vexatious
prosecutions and to allay the fear in the minds of the administration that even
honest exercise of discretionary functions would expose them to criminal
prosecution. The proviso carves out an obvious exception to cases which are at
variance with the purpose of the protection.
19. In Yashwant Sinha Vs CBI [(2020) 2 SCC 338] the Supreme Court has held
that the compliance with Section 17-A is mandatory. It declared:
“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
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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.”
Realising the above position perhaps, the State of Tamil Nadu came out with
GO MS 173 dated 19.12.2018 to set down the procedure for processing
complaints against public servants in the matter of according approval under
Section 17-A. Paragraph 3 of the said GO reads as follows:
“i) On receipt of complaint / allegation / source report relating to
offences alleged to have been committed under the Prevention of
Corruption Act, 1988, the Directorate of Vigilance and Anti-
Corruption shall initially take up a factual verification in the first
instance and shall weed out baseless, vague, frivolous, vexatious
complaints.
ii) No action is required to be taken on anonymous complaints,
irrespective of the nature of allegations and such complaints need to
be filed.
iii) If a complaint contains verifiable allegations, it shall be verified
with the complainant for owning / disowning, as the case may be,
and if no response is received from the complainant within a
reasonable time, the said complaint may be filed as pseudonymous.
iv) Repeated complaints regarding the same allegations and
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previously disposed, may be filed.
v) Complaints / Petitions received against the elected members of
the Local Bodies and the Officers and employees working under the
local bodies, shall be forwarded to the Tamil Nadu Local Bodies
Ombudsman for further action under the Tamil Nadu Local Bodies
Ombudsman Act, 2014.
Paragraph 4(vi) and 5 of the GO are relevant to the present case, and reads as
follows:
“(i) to (v).... ......
vi) where it is proposed to register a Regular Case for investigation
against Public Servants, the Directorate of Vigilance and Anti-
Corruption, shall forward the materials to the authority
competent to remove him from his office, through the Vigilance
Commission, with a copy marked to the monitoring authority
concerned as indicated in para 6 below.
5. The competent authority, on receipt of materials, shall arrive at
a conclusion for it to be conveyed, within the time limit prescribed
in the second proviso to section 17A(1) of the Prevention of
Corruption Act, 1988, directly to the Directorate of Vigilance and
Anti-Corruption, with a copy marked to the Secretary to
Government / Head of the Department concerned, as the case may
be and to the Vigilance Commission.”
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In addition, the Government of India (DOPT) has issued a stage wise SOP for
dealing with cases under Section 17-A on 03.09.2021.
20.1 The foregoing discussion informs that vis-a-vis the quashing of FIR
involving criminal accusation against public servants as regards the decisions or
recommendations they make in the course of their official duty must
mandatorily go through a pre-enquiry or pre-investigation vetting process by a
non-policeman (read it as the authority granting approval) since Sec.17A
approval is mandatory before the policeman can take the first step towards
enquiry or investigation. Therefore, the general rule that Court shall not look
beyond the allegation in the FIR while considering a challenge to it may not be
applicable to cases where 17A of the PC Act applies. In other words, whenever
a FIR pertaining to offences which falls within the net of Sec.17A is challenged,
the Court may have to, nay, must have to refer to the quality of application of
mind involved in granting approval.
20.2 It now becomes evident that the approval process mandated under Sec.17A
of the PCA is a statutory filter, devised to ensure that the honest public servants
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are protected from vexatious and frivolous complaints against the bonafide
decisions that they take. It is not a ritual but something that demands serious
application of mind. However, if the argument of the learned AAG that a FIR
can be tested for its merit only based on what it alleges is accepted in its
entirety, then there is a risk of reducing the need for applying the mind at the
time of granting approval under Sec.17A to redundancy. When the Parliament
intends that Sec.17A approval-proceedings is mandatory, the Court is only
expected to give the kind of prominence which the legislature has envisaged,
and the Court must refrain from becoming a super legislature to reduce Sec.17A
to redundancy with its interpretations, merely because it has the power to iron
out absurdities while interpreting a statute.
21. While considering the grant or refusal of approval, Section 17-A places a
duty on the approving authority to objectively take a call on whether prosecution
is necessary. After all such authority would be an insider and would be part of
the administrative set-up. Their appreciation of an allegation guided by their
sheer familiarity and knowledge with the way decisions are taken and
recommendations are made is critical to their decision to grant or refuse to grant
approval. Besides, he or she can access relevant files if it is felt necessary in
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relation to the allegation made against a public servant in the course of
application of mind to a request for granting approval under Sec.17A of the Act.
After all, it is not every transgression of some rule that should necessarily invite
criminal prosecution.
22. As stated in paragraph 5.2 above, Sec.17A has both the shades of procedural
law and also substantive law. But the point is, whether any approval granted
under Sec.17A is justiciable and whether the decision to accord or refuse
approval under Section 17A is amenable to judicial review and if so to what
extent? The Court now turns to address these questions.
23.1 In construing the nature of the power exercised by the Government under
Section 17-A there is no doubt that it is neither judicial nor quasi-judicial in
character (as there is neither a lis involved nor does it affect any of the rights of
the accused persons in praesenti). Thus, the power exercised by the Government
is merely administrative in character. Nevertheless, it does not follow that
merely because it is administrative in character the exercise of such power is
outside the ken of judicial review. In the present age of evolved
constitutionalism, there is no such thing as unreviewable powers. Indeed, in the
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context of reviewing the exercise of administrative powers, the Supreme Court
itself has pointed out in Ram Avtar Sharma Vs State of Haryana [(1985) 3
SCC 189] the following:
“Every administrative determination must be based on grounds
relevant and germane to the exercise of power. If the
administrative determination is based on the irrelevant,
extraneous or grounds not germane to the exercise of power it is
liable to be questioned in exercise of the power of judicial
review.”
23.2 This takes us to the second aspect on ascertaining the outer contours of
judicial review. Here it must be emphasised that the existence of a power is one
thing and the manner of its exercise is quite another. In Shreeroopa Vs State of
Karnataka [2023 SCC Online Kar 68] a learned single judge of the Karnataka
High Court has made the following observations in the context of Section 17-A:
“33. Section 17A of the Act is drafted with the overarching
objective of ensuring that unnecessary investigations against public
servants are prevented, and the State Government is required to
take a decision to accord or refuse approval to conduct an
investigation within a time frame. This indicates the balance that
the law intended to strike in the manner of an investigation being
conducted against a public servant.
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34. It is also clear from the wording of Section 17A of the Act that
the State Government is not required to exhaustively and
meticulously consider all the material available with the
Investigating Officer at the time he seeks approval, and it is only
required to examine and consider whether the opinion formed by
the Investigating Officer that an investigation is warranted is
justified or not. If the State Government is satisfied that the opinion
formed by the Investigating Officer is justified and its employee is
required to be subjected to an investigation, the State Government
can accord its approval.”
24. This indicates Sec.17A does not require a meticulous examination of all the
materials, but it does require that the approving-authority examine and
‘consider’ some material which is essential to appreciate the need for an enquiy,
inquiry or investigation into the complaint. If only complaint has to be
considered by such authority, then the dictum in Lalitakumari case [(2014) 2
SCC 1] would suffice. And if the legislative intent behind Sec.17A is to protect
honest public servants from victimisation at the hands of the unscrupulous, and
as in the instant case also at the hands of a suspected blackmailer, then approval
under Sec.17A cannot be limited to a consideration of the mere complaint, but
must be based on something beyond it. And therefore, it need not even be
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confined to the materials which the investigation agency may or may not
provide. After all without an approval, the investigation agency cannot even
enquire or investigate to collect materials necessary for the consideration of the
approving authority.
25. The term ‘consider’ means to think over; it connotes that there should be
active application of the mind. In other words, the term “consider” postulates
consideration of all the relevant aspects of the matter (See: Bhikhubhai
Vithlabhai Patel Vs State of Gujarat [(2008) 4 SCC 144]). If there is no proper
consideration or application of mind as regards the requirements of law, the
administrative action would stand vitiated (See: S.N. Chandrashekar Vs State
of Karnataka [(2006) 3 SCC 208)].
26. There may however, arise situations where the quality of application of
mind in granting approval under Sec.17A may not be satisfactory, but the
investigating agency may have laid their hands on incriminating material which
in itself may establish that prima facie there exists an investigable case. Can the
Court now reject the FIR and the investigation done merely because the quality
of application of mind in granting approval under Sec.17A is not satisfactory?
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This Court considers that would be far-fetched since a good work an
investigating agency may do cannot be sabotaged by an administrative
authority's failure to apply its mind to the materials while granting approval
under Sec.17A. The intent behind Sec.17A does not extend to the extent of
undoing a good job done by an investigating agency.
27. It could now be dervied, that non-complicance with Sec.17A of the PCA
cannot be equated to inadequate application of mind by the authority who grants
approval under Sec.17A. While the former is mandatory and its non-compliance
can be a ground to set aside a FIR, inadequate or unatisfactory application of
mind to materials while granting approval under Sec.17A can hardly be a
ground to quash a FIR unless it is coupled with the inability of the investigating
agency to gather any incriminatory evidence. It depends on the quality of
allegation made in the FIR, and the kind of materials the investigating agency
could gather from the date of FIR till the date of hearing of a case involving a
challenge to the very FIR. It is while evaluating them, the Court may also refer
to the quality of approval granted under Sec.17A.
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28. To sum up the position:
a) An approval under Sec.17A is mandatory, and the authority who grants
his approval shall chiefly focus to eliminate the possibility that a public
servant who faces an accusation of criminality for any administrative
decision he has taken, or administrative recommendation he has made is
wrongly prosecuted or victimised;
b) While satisfying himself before granting or refusing to grant approval
under Sec.17A of the PCA, the authority concerned is required to apply
his mind not just to the complaint before it but also to other materials
which may throw light on the allegation and need for a prosecution;
c) An authority granting approval need not examine all the materials the way
the Court may examine the evidence before it; but such authority still has
to apply his mind to such materials which his expertise, familiarity and
knowledge in the field may direct him to probe to satisfy himself as to
whether the nature of decision taken or recommendation made leads to a
bonafide suspicion about the integrity of the public servant.
d) An order granting approval under Sec.17A is only in the nature of an
administrative order to set the prosecution on a complaint in motion. It is
not justiciable. However, a collateral argument may be placed on it while
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challenging a FIR.
e) When a FIR is challenged, it is always open to the Court to consider the
quality of approval granted under Sec.17A.
f) If in any proceedings for quashing the FIR, the Court has reason to
believe that the FIR might be vexatious, motivated or triggered by
malafide or there exists an element of bonafide in the manner of decision
taken or recommendation made by a public servant, then approval granted
under Sec.17A of the PCA without adequate application of mind may
become critical to the outcome of the decision in the case.
g) If however, during the course of hearing, the Court finds that the quality
of application of mind as disclosed in the proceedings of granting
approval is inadequate, but if the investigating agency is found to have
gathered incriminating material during investigation, then the quality of
the approval granted may not impact the sustenance of the FIR.
29. It is on the touch stone of the above propostion, facts of this case are
required to be appreciated. Admittedly, all the three accusations which form the
subject matter of the allegations in the FIR were decisions
taken/recommendations made by A1 in the course of discharge of his functions
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as a public servant/Commissioner of the Pallavaram Municipality.
30.1 Let the second and the third accusations be now considered. To repeat
they pertain to an issue relating to mosquito eradication, and the other one
relates to procuring and distribution of medicines for elephantiasis. As stated
earlier, the accused has produced copies of all the records in defence of these
accusations as if he is defending a charge. The learned AAG argues that it is too
premature a stage for considering any materials which are extraneous to the
accusation made in the FIR, and added that the investigating agency will
consider them in the course of investigation. An absolutely impressive
argument, but it is very much along a beaten-track and hence is easily
predictable. What this argument overlooks is that there is a Sec.17A regime
now in place, and any challenge to a FIR needs to be weighed also on the basis
of the quality of application of mind in granting approval for prosecution.
30.2 Now, the FIR has been registered not immediately, but after a detailed
enquiry by the investigating agency in terms of the V & AC manual, followed
by a proceeding before an authority, who is not a policeman, under Sec.17A of
the Act. Anbalagan had given his complaint in March, 2017, and it is more than
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seven years since the complaint was given and the prosecution says that it is still
under investigation. And, the proceedings granting approval under Sec.17A was
issued on 21.12.2021, and the FIR thereafter came to be registered on
13.03.2023. But the prosecution in paragraph 14 of its counter affidavit states
that the documents in this regard are not available in the Pallavaram
Municipality office, and that the said Municipality has merged with the
Tambaram Municipality in 2021. In particular the counter specifically states that
“facts could be verified after getting the documents from the Tambaram
Corporation.” This means even as on date, the prosecution has no material on
the basis of which the allegation is sought to be asserted.
30.3 The very same stand is taken with respect to the third allegation which
pertains to purchase of medicines to cure elephantiasis, as is seen from
paragraph 15 of the counter affidavit where it is stated that “facts should be
verified after getting the documents from the Tambaram Corporation.” In other
words, paragraphs 14 and 15 indicate that the prosecution has not been able to
unearth any material to show, even prima facie, the involvement of A1 in the
alleged offences even after 6 years.
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30.4 And during the hearing of this petition, the prosecution informs the Court
that they are still investigating to ascertain the merit of allegations 2 and 3. This
implies (a) till date the prosecution perhaps has not been able to lay its hands on
any material in an accusation which is more than seven years old now; (b) that
despite its possession of the materials which the petitioner has provided in his
defence in the form of typed set of papers for about two months, it is still not in
a position to make a statement on their merit. This leads to a just suspicion as to
whether the petitioner is being targeted? Today this Court may not make any
opinion on it. But what is intriguing is that with no materials till date, what then
are the materials which the authority granting approval under Sec.17A has
considered? Has there been a proper application of mind then?
31.1 Now comes consideration of the first allegation: that A1 had engaged the
services of A3 and that during the summer vacation of 2015 only 47 toilets were
cleaned instead of 184 toilets and in the process Rs. 8,55,000/- was paid instead
of Rs. 1,70,000/-. It is alleged that the case is actually one where A1 had
violated the tender rules by extending the tenure of A3 repeatedly. It is also
alleged that A1 had extended 30 days tender and work guarantee for one year
from 01.01.2016 which was inconsistent with the tender rules.
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31.2 While approval under Sec.17A has been granted for registering a FIR,
inter alia (the first allegation) that during 2016-2017 , A1, A2 and A3 connived
together and swindled public money of Rs. 9,20,000 per month by providing
forged/fabricated bills and vouchers for cleaning of toilets by the Municipality,
in paragraph 8 of its counter affidavit before this Court, the respondent has
stated as under:
“It is respectfully submitted that the documents related to the
allegation 1 related to the allotment of tender for cleaning 184
toilents come under 11 schools of PallavaramMunicpality and bills
paid to the contractor was received from the Tambaram
Corporation only on 11.07.2024 and is under perusal. Some of the
documents are not available in the PallavaramMunicpality since the
Pallavaram Municipality was merged with Tambaram Corporation
on 04.11.2021, which is yet to be submitted by the Tambaram
Corporation.”
This implies till the point of filing the counter in 2024, even the Corporation did
not have the documents, and if that is so, how the approval was granted under
Sec.17A in 2021? This means that there was absolutely no material on the basis
of which the respondent has sought and obtained approval from the Government
under Section 17-A to register a regular case in 2021. It is most curious and
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strange and utterly in defiance of common sense as to how the respondent has
come to a conclusion that the bills were forged and fabricated in 2021. Though
the respondent has sought to portray a case in its counter affidavit before this
Court that the illegalities of A1 lay in allegedly violating the terms of the Tender
Transparency Act, it is clear that approval under Section 17-A was accorded
without any material.
32. The foundation for the prosecution case is G.O.166. But, as the learned
counsel for the petitioner explained, there are quite many facets thereof which
do not indicate that the contract period was extended without sanction of law,
See: Clause I (xii). Similarly the very value of contract also needs to be seen in
the context of Clause III of G.O. And, the communication of the Joint-Director
Tambaram Corporation addressed to the respondent during the pendency of this
petition quotes the wrongful loss to the Municipality but its believability is
suspect since it apparently has not taken into account Clause III of G.O. 166. It
also therefore indicates that even after the commencement of investigation, there
is no clue if there has been a wrongful loss to the Municipality. Therefore, what
is the quality of approval that has been given for investigation under Sec.17A?
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33. And this Court waited for close to two months for the prosecution to gather
and group its response to it, but it has merely placed reliance on G.O 77 and
G.O.166. And the response of the petitioner to the prosecution's contentions
instantly put the prosecution on the back foot. The arguments of both sides
narrated above may be referred to. If the first accusation involving contract
awarded for cleaning the toilets is concerned, the initial grant is not under
controversy but its extension beyond 30 days after December, 2015 and upto the
date on which G.O.166 was issued alone is critical. But, as contended
December, 2015 saw the whole Chennai floating in floods, and the explanation
was that it then became necessary to extend the contract. Prima facie it appears
to be a bonafide decision, but should not the authority who granted approval
focus something on it? Secondly, extending contract after G.O.166. Here the
prosecution has no answers to Clause I (xii) of the G.O. which mandates that the
contractor should not be terminated unless the Headmaster of the school reports
dissatisfaction about the quality of service of the contractor. Why the G.O.166
was selectively read? Turning to the letter of the Joint Director of Tambaram
Corporation issued during the pendency of this case, it ignored Cluse III of
G.O.166 which requires that the contractor shall provide all the cleaning materials.
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34. Now, if the approval granted in this case is considered in the backdrop of
what has been herein above stated, there is not a sentence in the document
evidencing approval as to how the authority had reached a conclusion that there
were sufficient grounds to register a case against A1. It is well settled that even
where the authority is required to exercise subjective satisfaction, such
satisfaction must be grounded “on materials which are of rationally probative
value”. The grounds on which the satisfaction is based must be such that a
rational human being can consider and connect them with the fact in respect of
which the satisfaction is to be reached. They must be relevant to the subject-
matter of the inquiry and must not be extraneous to the scope and purpose of the
statute, See Khudiram Das Vs State of W.B. [(1975) 2 SCC 81)].
35. To re-emphasise, having regard to the language of Section 17-A it is the
authority who is enjoined with the duty to independently assess and consider
the materials which are necessary for ensuring no vexatious prosecution is
launched against an accused. This satisfaction cannot be mortgaged to the
respondent, nor the authority who is required to grant approval can be treated as
a counter-signatory to anything the DVAC may provide it with.
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36. This Court has already explained in the earlier paragraphs that the fact the
respondent could not have any material themselves demonstrates prima facie
that the approval has been granted without any application of mind and the first
respondent is now hunting for materials. This Court is now constrained to form
its opinion: the allegation in the FIR is wobbling, the quality of material placed
before the Court by the Prosecution is unstable, and set in the circumstances the
quality of approval is upsetting.
37. This Court is of the view that the procedure as has been adopted cannot be
countenanced as it would rob the very essence of the protection granted by
Section 17-A which is a measure conceived in public interest. If ignored, then
Sec. 17-A compliance will be reduced to an empty ritual.
38. Turning to offence under Sec.406 and Sec.409 IPC, in terms of the
accusation in the FIR, they are related to the decisions taken by the petitioner
officially and hence necessarily will be hit by whatever happens to the offence
under the PCA.
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39. As indicated in Achin Gupta Vs State of Haryana [2024 SCC Online SC
759], where the High Court is approached for quashing a FIR essentially on the
ground that such proceedings are manifestly frivolous or vexatious or instituted
with the ulterior motive of wreaking vengeance, then in such circumstances, the
High Court owes a duty to look into the FIR with care and a little more closely.
It was further observed that it will not be enough for the Court to look into the
averments made in the FIR/complaint alone for the purpose of ascertaining
whether the necessary ingredients to constitute the alleged offence are disclosed
or not as, in frivolous or vexatious proceedings, the court owes a duty to look
into many other attending circumstances emerging from the record of the case
over and above the averments and, if need be, with due care and circumspection,
to try and read between the lines. The case at hand falls within the situation
contemplated under paragraph 28(f). The FIR as registered cannot stand.
40. Before signing off, the Court appreciates the efforts and assistance of
Amici Curiae, Mr. V. Karthic and Mr. John Sathyan, learned Senior Advocates,
whose submissions on the point of law were of considerable significance in
delivering this judgment.
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41. The conclusion is to state the obvious. The petition is allowed, and the
proceedings in FIR 2 of 2023 on the file of the respondent are quashed in so far
as the petitioner is concerned.
06.01.2025
Index : Yes / No
Speaking order / Non-speaking order
Neutral Citation : Yes / No
ds
To:
1. The Inspector of Police
Vigilance & Anti-Corruption
Chennai.
2.The Public Prosecutor
High Court, Madras.
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N.SESHASAYEE.J.,
ds
Pre-delivery order in
06.01.2025
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