{"id":124682,"date":"2008-11-28T00:00:00","date_gmt":"2008-11-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/y-s-devassya-vs-the-state-of-kerala-on-28-november-2008"},"modified":"2014-06-30T05:59:23","modified_gmt":"2014-06-30T00:29:23","slug":"y-s-devassya-vs-the-state-of-kerala-on-28-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/y-s-devassya-vs-the-state-of-kerala-on-28-november-2008","title":{"rendered":"Y.S.Devassya vs The State Of Kerala on 28 November, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Y.S.Devassya vs The State Of Kerala on 28 November, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1054 of 2001()\n\n\n\n1. Y.S.DEVASSYA\n                      ...  Petitioner\n\n                        Vs\n\n1. THE STATE OF KERALA\n                       ...       Respondent\n\n                For Petitioner  :SRI.N.UNNIKRISHNAN\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice V.K.MOHANAN\n\n Dated :28\/11\/2008\n\n O R D E R\n                           V.K.MOHANAN, J.\n                 ----------------------------------------------\n                      CRL.A. No.1054 OF 2001\n                 ----------------------------------------------\n                    Dated, 28th November, 2008\n\n                               JUDGMENT\n<\/pre>\n
      The appellant is the accused in C.C.No.12\/1997 on the file of<\/p>\n
the Enquiry Commissioner and Special Judge, Kozhikode, which is a<\/p>\n
case instituted      upon a           complaint preferred by the 2nd<\/p>\n
respondent\/complainant, for prosecuting                the appellant for the<\/p>\n
offences punishable under Section 7 and 13(1) (d) read with section<\/p>\n
13(2) of the Prevention of Corruption Act and Section 420 of the<\/p>\n
Indian Penal Code, on the basis of a direction, given by the Judicial<\/p>\n
First Class Magistrate-I, Perinthalmanna, while the said court was<\/p>\n
considering C.C.No.231\/92 for an offence under section 138 of the<\/p>\n
Negotiable Instruments Act.         By the impugned            judgment dated<\/p>\n
29.9.2001, the trial court convicted the accused\/appellant under<\/p>\n
section 13(2) read with 13(1)(d) of the Prevention of Corruption Act<\/p>\n
(for short `the Act only) and Section 420 of IPC and accordingly,<\/p>\n
sentenced him to undergo rigorous imprisonment for two years each<\/p>\n
for the said offences. He was acquitted of the offence charged<\/p>\n
under section 7 of the Act.\n<\/p>\n
      2. The prosecution case can be summarised as follows: The<\/p>\n
accused was an Upper Division Clerk, and PW6 was the Senior<\/p>\n
CRL.A. 1054\/01.\n<\/p>\n
                                    -:2:-<\/span><\/p>\n
Superintendent in the office of the Deputy Director of Education,<\/p>\n
Palakkad, during March\/April, 1992.      PW4 was then working in that<\/p>\n
office and PW5 in a High School at Mathur.          Both of them were<\/p>\n
working as Peons. According to the prosecution, the Vigilance Unit,<\/p>\n
Palakkad, conducted a preliminary enquiry, presumably on source<\/p>\n
information, that the accused with the assistances and connivance of<\/p>\n
the above officers, had abused his official position and defrauded one<\/p>\n
K.P. Velappan (PW1), a retired primary school Teacher, of a sum of<\/p>\n
Rs.40,000\/- with a false promise of securing a seat for his daughter<\/p>\n
for the T.T.C, course under the management quota.         According to<\/p>\n
the prosecution, the materials    collected disclosed a prima facie<\/p>\n
case.   Accordingly PW9, Dy.S.P, Vigilance and Anti Corruption<\/p>\n
Bureau, Palakkad registered the crime as V.C.No.9\/94 of VACB,<\/p>\n
Palakkad as per Ext.P6 FIR against the accused and three others for<\/p>\n
the offences under sections 7 and 13(1)(d) read with Sec.13(2) of<\/p>\n
the Act 1988 and Sec.34 of IPC. According to the prosecution, during<\/p>\n
the investigation conducted by PW9, it disclosed that the accused<\/p>\n
alone committed the offence and he had subsequently issued a<\/p>\n
cheque to PW1 for a sum of Rs.40,000\/- which was dishonoured and<\/p>\n
consequently the prosecution for the offence under section 138 of the<\/p>\n
N.I.Act was launched which resulted in his conviction. Thus PW8, the<\/p>\n
CRL.A. 1054\/01.\n<\/p>\n
                                     -:3:-<\/span><\/p>\n
successor of PW9, after obtaining         sanction for prosecuting  the<\/p>\n
accused , laid final report and charged for the offences under sections<\/p>\n
7 and 13(1)(d) read with Sec.13(2) of the Act and under section 420<\/p>\n
of the IPC. On the basis of the above charge and materials, a formal<\/p>\n
charge was framed against the accused for the said offences to<\/p>\n
which he pleaded not guilty which resulted in the further trial during<\/p>\n
which PWs 1 to 9 were examined and Exts.P1 to P6 were marked.<\/p>\n
After the prosecution evidence, the accused was questioned under<\/p>\n
section 313 of Cr.P.C. during which, the incriminating circumstances<\/p>\n
which emerged during the prosecution evidence, were put to the<\/p>\n
accused and he denied the same. It is the further cases of the<\/p>\n
accused that the amount was actually collected from PW1 by PWs<\/p>\n
4, 5 and 6 who are accused Nos. 2 to 4 in the FIR,      on agreeing to<\/p>\n
refund,   if admission was not secured.          PW6 who sought his<\/p>\n
assistance for obtaining admission in fact spelled out the promise<\/p>\n
and collected the sum. However, admission was not materialised.<\/p>\n
Consequently,     it was demanded for the refund of the amount and<\/p>\n
thus PWs 4 to 6 influenced and         prevailed upon him   to issue a<\/p>\n
cheque, merely as a document. Thus according to the accused, PW6<\/p>\n
who obtained the cheque,       later, filled up  the same and handed<\/p>\n
over to PW1 and based upon such document, the prosecution under<\/p>\n
CRL.A. 1054\/01.\n<\/p>\n
                                     -:4:-<\/span><\/p>\n
section 138 of the Act was launched against him and it resulted in his<\/p>\n
conviction and sentence and the same was challenged finally before<\/p>\n
this Court. Thus, according to the accused, on the said allegations<\/p>\n
he has already been prosecuted which resulted in his conviction, and<\/p>\n
therefore, the second prosecution is unwarranted. It is also his<\/p>\n
defence that even if the entire facts involved in this case is admitted<\/p>\n
as true, what remains is only a civil liability and no prosecution will lie.<\/p>\n
On the basis of the rival contentions and pleadings, the trial court<\/p>\n
formulated seven points for its consideration among which the first<\/p>\n
issue is   whether there is a    valid sanction     for  prosecuting the<\/p>\n
accused\/appellant, public servant, for the offence alleged. As per the<\/p>\n
impugned judgment, the trial court entered into finding under Points<\/p>\n
Nos.1, 2, 3 and 5 in favour of the prosecution, while finding under<\/p>\n
point No.4 is against the prosecution and in favour of the accused. It<\/p>\n
is the above finding and conviction are challenged in this appeal.<\/p>\n
       3.  I have heard     Sri N.Unnikrishnan, the learned counsel<\/p>\n
appearing the the appellant and also Smt. K.L.Lakshmi Rani, the<\/p>\n
learned Public Prosecutor.\n<\/p>\n
       4. The learned counsel for the appellant vehemently argued<\/p>\n
that the entire prosecution and the trial are vitiated since no statutory<\/p>\n
sanction   was obtained by the prosecution and for that          reason,<\/p>\n
CRL.A. 1054\/01.\n<\/p>\n
                                    -:5:-<\/span><\/p>\n
cognizance taken by the court           below itself was illegal and<\/p>\n
consequently the court has no jurisdiction to proceed with the trial.<\/p>\n
Therefore, it is the case of the counsel that in the absence of proper<\/p>\n
sanction, the court has no jurisdiction to proceed with the trial and<\/p>\n
therefore, the consequent finding and judgment are liable to be set<\/p>\n
aside.   He placed reliance upon the judgment of the Apex Court<\/p>\n
reported in Ram Kumar v. State of Haryana (AIR 1987 SC 735).<\/p>\n
       5. On the other hand, the learned Public Prosecutor submitted<\/p>\n
that the trial is over and there is a finding on merit by a competent<\/p>\n
court and therefore, merely for the reason that no valid sanction was<\/p>\n
obtained, the judgment cannot be interfered with and the conviction<\/p>\n
and sentence       cannot be set aside.     In support of  the above<\/p>\n
contention she placed reliance upon the decision of a Division Bench<\/p>\n
of this court in Krishna Iyer v. State of Kerala<\/a> (2005 (1) KLT 391)<\/p>\n
and also the decision of the Apex Court in Central Bureau of<\/p>\n
Investigaton V.K. Seghal (1999 (8) SCC 501).\n<\/p>\n
       6. I have carefully considered the contentions advanced by<\/p>\n
both the counsel for the appellant as well as the learned Public<\/p>\n
Prosecutor. Section 19(1) of the P.C Act says that no court shall<\/p>\n
take cognizance of an offence punishable under sections 7,10, 11, 13<\/p>\n
CRL.A. 1054\/01.\n<\/p>\n
                                       -:6:-<\/span><\/p>\n
and 15 alleged to have been committed by a public servant, except<\/p>\n
with the previous sanction. Therefore, the learned counsel submitted<\/p>\n
that unless previous sanction is obtained by the prosecution and<\/p>\n
produced before the court, the court cannot take cognizance upon<\/p>\n
such complaint. In this juncture it is relevant to note subsection 3<\/p>\n
of Section 19 which reads as follows:\n<\/p>\n
               “(3) Not withstanding anything contained in the<\/p>\n
         Code of Criminal Procedure, 1973 (2 of 1974), –\n<\/p><\/blockquote>\n
                        (a)   no finding,    sentence     or order
\n                 passed by a special Judge shall be reversed
\n                 or altered by a court in appeal, confirmation or
\n                 revision on the ground of the absence of, or
\n                 any error, omission or irregularity in, the
\n                 sanction required under sub-section (1), unless
\n                 in the opinion of that court, a failure of justice
\n                 has in fact been occasioned thereby;\n<\/p><\/blockquote>\n
                        (b) no court shall stay the proceedings
\n                 under this Act on the ground of any error,
\n                 omission or irregularity in the sanction granted
\n                 by the authority, unless it is satisfied that such
\n                 error, omission or irregularity has resulted in a
\n                 failure of justice;\n<\/p><\/blockquote>\n
                        ( c) no court shall stay the proceedings
\n                 under this Act on any other ground and no
\n                 court shall exercise the powers of revision in
\n                 relation to any interlocutory order passed in
\n                 any inquiry, trial, appeal or other proceedings”\n<\/p><\/blockquote>\n
In this juncture, it is also relevant to note sub-section 4 Section 19<\/p>\n
which reads as follows:\n<\/p>\n
CRL.A. 1054\/01.\n<\/p>\n
                                     -:7:-<\/span><\/p>\n
                  “(4) In determining under sub-section (3)<\/p>\n
            whether the absence of, or any error, omission or<\/p>\n
            irregularity in, such sanction has occasioned or<\/p>\n
            resulted in a failure of justice the court shall have<\/p>\n
            regard to the fact whether the objection could and<\/p>\n
            should have been raised at any earlier stage in the<\/p>\n
            proceedings.\n<\/p><\/blockquote>\n
                  Explanation. - for the purposes        of this\n\n            section.-\n\n                  (a)    error includes competency of the\n\n            authority to       grant sanction;\n\n                  (b)    a sanction    required  for prosecution\n\n            includes reference to     any requirement that the\n\n<\/pre>\n
            prosecution shall be at the instance of a specified<\/p>\n
            authority or with the sanction of a specified person<\/p>\n
            or any requirement of a similar nature”.\n<\/p><\/blockquote>\n
Going by the impugned judgment it can be seen that the accused<\/p>\n
appellant had taken the objection under section 19(1) of the Act at<\/p>\n
the earliest and thus it resulted in formulating the first issue by the<\/p>\n
court below and     considered the case of the      prosecution.   After<\/p>\n
considering the objection, the trial court has found that the challenge<\/p>\n
against the competency of the witness to accord sanction for<\/p>\n
prosecution of the accused, and thus impeaching the validity of<\/p>\n
Ext.P5 order is found to be devoid of any merit. According to the<\/p>\n
CRL.A. 1054\/01.\n<\/p>\n
                                   -:8:-<\/span><\/p>\n
court below, Ext.P5 order would also disclose that sanction was<\/p>\n
granted after examining the case records and being satisfied with<\/p>\n
the facts presented that prosecution was essential. The learned<\/p>\n
counsel submitted that the above finding is absolutely unfounded<\/p>\n
and arbitrary.\n<\/p>\n
      7. From the proceedings of this Court it appears that another<\/p>\n
learned Judge of this Court granted time to the       learned Public<\/p>\n
Prosecutor to look into the provisions and the relevant rules to show<\/p>\n
that the Deputy Director of Education is competent to remove the<\/p>\n
appellant from his office, as otherwise Ext.P5 sanction order issued<\/p>\n
by PW3 to prosecute the appellant will be invalid. Subsequently, on<\/p>\n
29.9.2008, and on 21.10.2008 time was sought by the prosecutor for<\/p>\n
getting instruction. Today, when the matter was taken for hearing, the<\/p>\n
learned Public Prosecutor made available to me a written instruction<\/p>\n
given by the Deputy Director of Education, Palakkad in this case. As<\/p>\n
per the letter No.A5\/25695\/08 dated 13.10.08, the Deputy Director of<\/p>\n
Education, Palakkad while      addressing the     Advocate General,<\/p>\n
Ernakulam, reported that the appellant was appointed by the District<\/p>\n
Authorities as L.D.Clerk as advised by the District K.P.S.C and he<\/p>\n
was promoted as U.D.Clerk as per the Direction of Public Instruction,<\/p>\n
Thiruvananthapuram who is the State Head of the Department.<\/p>\n
CRL.A. 1054\/01.\n<\/p>\n
                                    -:9:-<\/span><\/p>\n
(emphasis supplied).    It is also reported that,   consequent on his<\/p>\n
promotion he was allowed to continue in the parent District i.e. there<\/p>\n
was no fresh promotion posting. In the above written instruction,<\/p>\n
Rule 73 of Manual of Disciplinary proceedings is quoted which runs<\/p>\n
as follows:\n<\/p>\n
                 “A person who was appointed by, say the
\n           Inspector General of Police, can be removed or
\n           dismissed    from service    only by the Inspector
\n           General of Police or by a superior authority even
\n           though the power of      appointment, dismissal or
\n           removal from service have been delegated to a
\n           lower authority say, the Superintendent of Police”.\n<\/p><\/blockquote>\n
Thus on the basis of the above, Deputy Director of Education reported<\/p>\n
that the appointing authority of the appellant is the Deputy Director of<\/p>\n
Education, Palakkad,      who is the competent authority      to grant<\/p>\n
permission to prosecute him. It is also stated in the said report that<\/p>\n
the Director   of Vigilance     Investigation by his    letter  No.BIC<\/p>\n
(Cr.9\/94\/P 23866\/94 dated 30.1.96 has directed the Deputy Director<\/p>\n
of Education, Palakkad, to accord necessary statutory sanction as<\/p>\n
contemplated in Section 6(1) of the Prevention of Corruption Act.<\/p>\n
       8. The appellant by filing Crl.M.A. No.1219\/2008 produced<\/p>\n
two documents among which Annexure.I is the proceedings of the<\/p>\n
Director of Public Instruction, Kerala, of which serial No.57 referred<\/p>\n
is about the appellant. On the basis of the above proceedings, it is<\/p>\n
CRL.A. 1054\/01.\n<\/p>\n
                                      -:10:-<\/span><\/p>\n
the case of the appellant that, only the Director of Public Instruction,<\/p>\n
Kerala can accord sanction for prosecution against the appellant. No<\/p>\n
government order, letter or any other proceedings        furnished   or<\/p>\n
produced by the learned Public Prosecutor, apart from the written<\/p>\n
instruction of the Deputy Director of Education, Palakkad mentioned<\/p>\n
above, to show that the Deputy Director is the competent authority<\/p>\n
to    issue sanction in terms of Section 19(1) of the P.C. Act to<\/p>\n
prosecute the appellant\/accused. From the written instruction of the<\/p>\n
Deputy Director, it is crystal clear that the       Director of Public<\/p>\n
Instruction, Kerala is the Authority who effected promotion of the<\/p>\n
appellant to the post of U.D.Clerk and appointed him. Annexure-I<\/p>\n
document, which is beyond dispute, speaks about the appointment.<\/p>\n
Absolutely      there is no   material  or document to  show that the<\/p>\n
Director of Public Instruction had then delegated his powers of<\/p>\n
disciplinary proceedings       and authority   to impose penalty or<\/p>\n
punishment, to the Deputy Director of Education, Palakkad.<\/p>\n
Therefore, the finding of the trial court that the Deputy Director of<\/p>\n
Education, Palakkad had authority to issue sanction under section 19<\/p>\n
(1), is liable to be set aside.\n<\/p>\n
       9. As far as the prosecution is concerned, under the provisions<\/p>\n
of the P.C.Act, sanction under section 19 is an essential requirement<\/p>\n
CRL.A. 1054\/01.\n<\/p>\n
                                   -:11:-<\/span><\/p>\n
for prosecution otherwise the court will not get jurisdiction to take<\/p>\n
cognizance upon such complaint. Section 19 is incorporated with a<\/p>\n
view to prevent unnecessary and frivolous complaint against the<\/p>\n
government servants and to save them from unnecessary harassment<\/p>\n
and from dragging        into the court for mala fide and frivolous<\/p>\n
proceedings.    In the present case, from the allegation, it appears to<\/p>\n
me that, had a competent authority considered the allegation for the<\/p>\n
purpose of granting sanction, the result would have been a different<\/p>\n
one. It is borne out from the records that in fact, the basis for the<\/p>\n
prosecution is originated from the observation or proceedings issued<\/p>\n
by the Magistrate court where the accused was forced to face the<\/p>\n
prosecution for the offence under section 138 of the N.I.Act, and<\/p>\n
really the prosecution    was not originated at the instance of any<\/p>\n
competent departmental authorities. Therefore, in the above facts<\/p>\n
and circumstances, I am of the view that the absence of a valid<\/p>\n
sanction from a competent authority, resulted in miscarriage of justice<\/p>\n
and it caused and resulted high prejudice to the interest of the<\/p>\n
appellant\/accused and therefore, the trial     itself is vitiated and<\/p>\n
consequently the judgment under appeal is liable to be set aside.<\/p>\n
      In the result, this appeal is allowed. The judgment of the trial<\/p>\n
court is set aside. Consequently, the appellant is discharged from<\/p>\n
CRL.A. 1054\/01.\n<\/p>\n
                                  -:12:-<\/span><\/p>\n
the     offences  levelled    against   him    and    if   the   2nd<\/p>\n
respondent\/complainant wants to proceed against the accused, he can<\/p>\n
do it in accordance with law and procedure after obtaining necessary<\/p>\n
proper and valid sanction.\n<\/p>\n<\/p>\n
                                          V.K.MOHANAN, JUDGE<\/p>\n
kvm\/-\n<\/p>\n
CRL.A. 1054\/01.\n<\/p>\n
                   -:13:-<\/span><\/p>\n
                             V.K.MOHANAN, J.\n<\/p>\n
                             No.A.No.1054\/2001<\/p>\n
                                      Judgment<\/p>\n
                              Dated:28.11.2008<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-124682","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nY.S.Devassya vs The State Of Kerala on 28 November, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/y-s-devassya-vs-the-state-of-kerala-on-28-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Y.S.Devassya vs The State Of Kerala on 28 November, 2008 - 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