High Court Kerala High Court

Y.S.Devassya vs The State Of Kerala on 28 November, 2008

Kerala High Court
Y.S.Devassya vs The State Of Kerala on 28 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 1054 of 2001()



1. Y.S.DEVASSYA
                      ...  Petitioner

                        Vs

1. THE STATE OF KERALA
                       ...       Respondent

                For Petitioner  :SRI.N.UNNIKRISHNAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.K.MOHANAN

 Dated :28/11/2008

 O R D E R
                           V.K.MOHANAN, J.
                 ----------------------------------------------
                      CRL.A. No.1054 OF 2001
                 ----------------------------------------------
                    Dated, 28th November, 2008

                               JUDGMENT

The appellant is the accused in C.C.No.12/1997 on the file of

the Enquiry Commissioner and Special Judge, Kozhikode, which is a

case instituted upon a complaint preferred by the 2nd

respondent/complainant, for prosecuting the appellant for the

offences punishable under Section 7 and 13(1) (d) read with section

13(2) of the Prevention of Corruption Act and Section 420 of the

Indian Penal Code, on the basis of a direction, given by the Judicial

First Class Magistrate-I, Perinthalmanna, while the said court was

considering C.C.No.231/92 for an offence under section 138 of the

Negotiable Instruments Act. By the impugned judgment dated

29.9.2001, the trial court convicted the accused/appellant under

section 13(2) read with 13(1)(d) of the Prevention of Corruption Act

(for short `the Act only) and Section 420 of IPC and accordingly,

sentenced him to undergo rigorous imprisonment for two years each

for the said offences. He was acquitted of the offence charged

under section 7 of the Act.

2. The prosecution case can be summarised as follows: The

accused was an Upper Division Clerk, and PW6 was the Senior

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Superintendent in the office of the Deputy Director of Education,

Palakkad, during March/April, 1992. PW4 was then working in that

office and PW5 in a High School at Mathur. Both of them were

working as Peons. According to the prosecution, the Vigilance Unit,

Palakkad, conducted a preliminary enquiry, presumably on source

information, that the accused with the assistances and connivance of

the above officers, had abused his official position and defrauded one

K.P. Velappan (PW1), a retired primary school Teacher, of a sum of

Rs.40,000/- with a false promise of securing a seat for his daughter

for the T.T.C, course under the management quota. According to

the prosecution, the materials collected disclosed a prima facie

case. Accordingly PW9, Dy.S.P, Vigilance and Anti Corruption

Bureau, Palakkad registered the crime as V.C.No.9/94 of VACB,

Palakkad as per Ext.P6 FIR against the accused and three others for

the offences under sections 7 and 13(1)(d) read with Sec.13(2) of

the Act 1988 and Sec.34 of IPC. According to the prosecution, during

the investigation conducted by PW9, it disclosed that the accused

alone committed the offence and he had subsequently issued a

cheque to PW1 for a sum of Rs.40,000/- which was dishonoured and

consequently the prosecution for the offence under section 138 of the

N.I.Act was launched which resulted in his conviction. Thus PW8, the

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successor of PW9, after obtaining sanction for prosecuting the

accused , laid final report and charged for the offences under sections

7 and 13(1)(d) read with Sec.13(2) of the Act and under section 420

of the IPC. On the basis of the above charge and materials, a formal

charge was framed against the accused for the said offences to

which he pleaded not guilty which resulted in the further trial during

which PWs 1 to 9 were examined and Exts.P1 to P6 were marked.

After the prosecution evidence, the accused was questioned under

section 313 of Cr.P.C. during which, the incriminating circumstances

which emerged during the prosecution evidence, were put to the

accused and he denied the same. It is the further cases of the

accused that the amount was actually collected from PW1 by PWs

4, 5 and 6 who are accused Nos. 2 to 4 in the FIR, on agreeing to

refund, if admission was not secured. PW6 who sought his

assistance for obtaining admission in fact spelled out the promise

and collected the sum. However, admission was not materialised.

Consequently, it was demanded for the refund of the amount and

thus PWs 4 to 6 influenced and prevailed upon him to issue a

cheque, merely as a document. Thus according to the accused, PW6

who obtained the cheque, later, filled up the same and handed

over to PW1 and based upon such document, the prosecution under

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section 138 of the Act was launched against him and it resulted in his

conviction and sentence and the same was challenged finally before

this Court. Thus, according to the accused, on the said allegations

he has already been prosecuted which resulted in his conviction, and

therefore, the second prosecution is unwarranted. It is also his

defence that even if the entire facts involved in this case is admitted

as true, what remains is only a civil liability and no prosecution will lie.

On the basis of the rival contentions and pleadings, the trial court

formulated seven points for its consideration among which the first

issue is whether there is a valid sanction for prosecuting the

accused/appellant, public servant, for the offence alleged. As per the

impugned judgment, the trial court entered into finding under Points

Nos.1, 2, 3 and 5 in favour of the prosecution, while finding under

point No.4 is against the prosecution and in favour of the accused. It

is the above finding and conviction are challenged in this appeal.

3. I have heard Sri N.Unnikrishnan, the learned counsel

appearing the the appellant and also Smt. K.L.Lakshmi Rani, the

learned Public Prosecutor.

4. The learned counsel for the appellant vehemently argued

that the entire prosecution and the trial are vitiated since no statutory

sanction was obtained by the prosecution and for that reason,

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cognizance taken by the court below itself was illegal and

consequently the court has no jurisdiction to proceed with the trial.

Therefore, it is the case of the counsel that in the absence of proper

sanction, the court has no jurisdiction to proceed with the trial and

therefore, the consequent finding and judgment are liable to be set

aside. He placed reliance upon the judgment of the Apex Court

reported in Ram Kumar v. State of Haryana (AIR 1987 SC 735).

5. On the other hand, the learned Public Prosecutor submitted

that the trial is over and there is a finding on merit by a competent

court and therefore, merely for the reason that no valid sanction was

obtained, the judgment cannot be interfered with and the conviction

and sentence cannot be set aside. In support of the above

contention she placed reliance upon the decision of a Division Bench

of this court in Krishna Iyer v. State of Kerala (2005 (1) KLT 391)

and also the decision of the Apex Court in Central Bureau of

Investigaton V.K. Seghal (1999 (8) SCC 501).

6. I have carefully considered the contentions advanced by

both the counsel for the appellant as well as the learned Public

Prosecutor. Section 19(1) of the P.C Act says that no court shall

take cognizance of an offence punishable under sections 7,10, 11, 13

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and 15 alleged to have been committed by a public servant, except

with the previous sanction. Therefore, the learned counsel submitted

that unless previous sanction is obtained by the prosecution and

produced before the court, the court cannot take cognizance upon

such complaint. In this juncture it is relevant to note subsection 3

of Section 19 which reads as follows:

“(3) Not withstanding anything contained in the

Code of Criminal Procedure, 1973 (2 of 1974), –

(a) no finding, sentence or order
passed by a special Judge shall be reversed
or altered by a court in appeal, confirmation or
revision on the ground of the absence of, or
any error, omission or irregularity in, the
sanction required under sub-section (1), unless
in the opinion of that court, a failure of justice
has in fact been occasioned thereby;

(b) no court shall stay the proceedings
under this Act on the ground of any error,
omission or irregularity in the sanction granted
by the authority, unless it is satisfied that such
error, omission or irregularity has resulted in a
failure of justice;

( c) no court shall stay the proceedings
under this Act on any other ground and no
court shall exercise the powers of revision in
relation to any interlocutory order passed in
any inquiry, trial, appeal or other proceedings”

In this juncture, it is also relevant to note sub-section 4 Section 19

which reads as follows:

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“(4) In determining under sub-section (3)

whether the absence of, or any error, omission or

irregularity in, such sanction has occasioned or

resulted in a failure of justice the court shall have

regard to the fact whether the objection could and

should have been raised at any earlier stage in the

proceedings.

                  Explanation. - for the purposes        of this

            section.-

                  (a)    error includes competency of the

            authority to       grant sanction;

                  (b)    a sanction    required  for prosecution

            includes reference to     any requirement that the

prosecution shall be at the instance of a specified

authority or with the sanction of a specified person

or any requirement of a similar nature”.

Going by the impugned judgment it can be seen that the accused

appellant had taken the objection under section 19(1) of the Act at

the earliest and thus it resulted in formulating the first issue by the

court below and considered the case of the prosecution. After

considering the objection, the trial court has found that the challenge

against the competency of the witness to accord sanction for

prosecution of the accused, and thus impeaching the validity of

Ext.P5 order is found to be devoid of any merit. According to the

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court below, Ext.P5 order would also disclose that sanction was

granted after examining the case records and being satisfied with

the facts presented that prosecution was essential. The learned

counsel submitted that the above finding is absolutely unfounded

and arbitrary.

7. From the proceedings of this Court it appears that another

learned Judge of this Court granted time to the learned Public

Prosecutor to look into the provisions and the relevant rules to show

that the Deputy Director of Education is competent to remove the

appellant from his office, as otherwise Ext.P5 sanction order issued

by PW3 to prosecute the appellant will be invalid. Subsequently, on

29.9.2008, and on 21.10.2008 time was sought by the prosecutor for

getting instruction. Today, when the matter was taken for hearing, the

learned Public Prosecutor made available to me a written instruction

given by the Deputy Director of Education, Palakkad in this case. As

per the letter No.A5/25695/08 dated 13.10.08, the Deputy Director of

Education, Palakkad while addressing the Advocate General,

Ernakulam, reported that the appellant was appointed by the District

Authorities as L.D.Clerk as advised by the District K.P.S.C and he

was promoted as U.D.Clerk as per the Direction of Public Instruction,

Thiruvananthapuram who is the State Head of the Department.

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(emphasis supplied). It is also reported that, consequent on his

promotion he was allowed to continue in the parent District i.e. there

was no fresh promotion posting. In the above written instruction,

Rule 73 of Manual of Disciplinary proceedings is quoted which runs

as follows:

“A person who was appointed by, say the
Inspector General of Police, can be removed or
dismissed from service only by the Inspector
General of Police or by a superior authority even
though the power of appointment, dismissal or
removal from service have been delegated to a
lower authority say, the Superintendent of Police”.

Thus on the basis of the above, Deputy Director of Education reported

that the appointing authority of the appellant is the Deputy Director of

Education, Palakkad, who is the competent authority to grant

permission to prosecute him. It is also stated in the said report that

the Director of Vigilance Investigation by his letter No.BIC

(Cr.9/94/P 23866/94 dated 30.1.96 has directed the Deputy Director

of Education, Palakkad, to accord necessary statutory sanction as

contemplated in Section 6(1) of the Prevention of Corruption Act.

8. The appellant by filing Crl.M.A. No.1219/2008 produced

two documents among which Annexure.I is the proceedings of the

Director of Public Instruction, Kerala, of which serial No.57 referred

is about the appellant. On the basis of the above proceedings, it is

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the case of the appellant that, only the Director of Public Instruction,

Kerala can accord sanction for prosecution against the appellant. No

government order, letter or any other proceedings furnished or

produced by the learned Public Prosecutor, apart from the written

instruction of the Deputy Director of Education, Palakkad mentioned

above, to show that the Deputy Director is the competent authority

to issue sanction in terms of Section 19(1) of the P.C. Act to

prosecute the appellant/accused. From the written instruction of the

Deputy Director, it is crystal clear that the Director of Public

Instruction, Kerala is the Authority who effected promotion of the

appellant to the post of U.D.Clerk and appointed him. Annexure-I

document, which is beyond dispute, speaks about the appointment.

Absolutely there is no material or document to show that the

Director of Public Instruction had then delegated his powers of

disciplinary proceedings and authority to impose penalty or

punishment, to the Deputy Director of Education, Palakkad.

Therefore, the finding of the trial court that the Deputy Director of

Education, Palakkad had authority to issue sanction under section 19

(1), is liable to be set aside.

9. As far as the prosecution is concerned, under the provisions

of the P.C.Act, sanction under section 19 is an essential requirement

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for prosecution otherwise the court will not get jurisdiction to take

cognizance upon such complaint. Section 19 is incorporated with a

view to prevent unnecessary and frivolous complaint against the

government servants and to save them from unnecessary harassment

and from dragging into the court for mala fide and frivolous

proceedings. In the present case, from the allegation, it appears to

me that, had a competent authority considered the allegation for the

purpose of granting sanction, the result would have been a different

one. It is borne out from the records that in fact, the basis for the

prosecution is originated from the observation or proceedings issued

by the Magistrate court where the accused was forced to face the

prosecution for the offence under section 138 of the N.I.Act, and

really the prosecution was not originated at the instance of any

competent departmental authorities. Therefore, in the above facts

and circumstances, I am of the view that the absence of a valid

sanction from a competent authority, resulted in miscarriage of justice

and it caused and resulted high prejudice to the interest of the

appellant/accused and therefore, the trial itself is vitiated and

consequently the judgment under appeal is liable to be set aside.

In the result, this appeal is allowed. The judgment of the trial

court is set aside. Consequently, the appellant is discharged from

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the offences levelled against him and if the 2nd

respondent/complainant wants to proceed against the accused, he can

do it in accordance with law and procedure after obtaining necessary

proper and valid sanction.

V.K.MOHANAN, JUDGE

kvm/-

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V.K.MOHANAN, J.

No.A.No.1054/2001

Judgment

Dated:28.11.2008