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.
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CRL.A. No.1054 OF 2001
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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