Ajas M.M. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942** ## **OP(Crl.).No.565 OF 2018** **AGAINST THE F.I.R NO.4/2018 OF VIGILANCE AND ANTI-CORRUPTION BUREAU, KOZHIKODE** ## **PETITIONER/ACCUSED NO.6:** **AJAS M.M. AGED 49 YEARS S/O M.C.MUHAMMAD MUSLIARAKATH HOUSE KOODARANHI P.O KOZHIKODE DISTRICT-673604** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.K.SAJU SRI.THOMAS P.KURUVILLA** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNALULAM 2 THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, KOZHIKODE 3 SRI. BASHEER, S/O. ABDURAHIMAN, PUTHIYATTUKUNDIL HOUSE, KOORMABARA P.O, KOZHIKODE DISTRICT PIN 673 604** **R3 BY ADV. SRI.P.B.KRISHNAN R3 BY ADV. SRI.SABU GEORGE SRI A RAJESH SPL PP VACB** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 17-02-2021, THE COURT ON 19-02-2021 DELIVERED THE FOLLOWING:** O.P.(Crl) No.565/2018 2 ## **R.NARAYANA PISHARADI, J** ************************ O.P.(Crl) No.565 of 2018 ----------------------------------------------Dated this the 19[th] day of February, 2021 ## **J U D G M E N T** The petitioner is the sixth accused in the case registered as V.C.No.4/2018 by the Vigilance and Anti-Corruption Bureau (VACB), Kozhikode. 2. The third respondent filed Ext.P7 complaint in the Court of the Enquiry Commissioner and Special Judge, Kozhikode against six persons, including the petitioner. The offences allegedly committed by the accused are not mentioned in Ext.P7 complaint with specific reference to the penal provisions. 3. Accused 1 to 4 were persons who were working as Geologist in the Mining and Geology Office, Kozhikode. The fifth accused was the Director of Mining and Geology. The petitioner, the sixth accused in the case, is a private person. He is the Managing Partner of the firm M/s.Poonoorpoyil Granites. O.P.(Crl) No.565/2018 3 4. It is not necessary here to narrate in detail the allegations contained in Ext.P7 complaint. Suffice it to state that the crux of the allegations in the complaint is that accused 1 to 5 had entered into a criminal conspiracy with the sixth accused and pursuant to such conspiracy, they had allowed the sixth accused to extract granite stones excess in quantity from excess area of land in violation of the terms of the lease granted to him. 5. On receiving the complaint, the Special Court forwarded it to the Dy.S.P, VACB, Kozhikode for quick verification and report. The Inspector of Police, VACB, who was authorised by the Dy.S.P to conduct the preliminary enquiry, conducted the enquiry and filed Ext.P8 report, which only contained recommendation of departmental action against T.Mohanan (A1), the Senior Geologist. 6. The learned Special Judge considered the preliminary enquiry report and the allegations in the complaint and came to the conclusion that the available materials were, prima facie, sufficient to presume commission of an offence under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act (for O.P.(Crl) No.565/2018 4 short 'the Act') by the officers of the Geology Department and a detailed investigation is necessary in the case. Accordingly, the learned Special Judge passed Ext.P9 order, forwarding the complaint to the Dy.S.P, VACB, Kozhikode under Section 156(3) of the Code of Criminal Procedure, 1973 (for short 'the Code') for investigation. 7. Accordingly, Ext.P10 F.I.R was registered against accused 1 to 6 by the VACB, Kozhikode under Section 13(1)(d) read with 13(2) of the Act. 8. This original petition is filed under Article 227 of the Constitution of India by the petitioner seeking the relief of quashing Ext.P7 complaint, Ext.P9 order and Ext.P10 F.I.R. 9. Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel for the third respondent. 10. All persons arrayed as accused in the complaint, except the petitioner, are public servants. On receiving the complaint and after obtaining the preliminary enquiry report, the learned Special Judge could not have forwarded the complaint under O.P.(Crl) No.565/2018 5 Section 156(3) of the Code for investigation, in the absence of any sanction under Section 19(1) of the Act obtained by the complainant. 11. Section 19(1) of the Act (as it stood before the amendment by Act 16 of 2018) provided that no Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority. 12. In **Anil Kumar v. Aiyappa : (2013) 10 SCC 705** , the Apex Court has held as follows: _"When a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C, obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post cognizance stage. ....... We may now examine whether, in the above mentioned legal situation, the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) Cr.P.C even at a pre-cognizance stage. ...... Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to_ O.P.(Crl) No.565/2018 6 _hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C"._ 13. Having regard to the ratio of the judgment in **Anil Kumar** (supra), in **Narayana Swamy v. State of Karnataka** ( **AIR 2016 SC 4125** ), the Apex Court held that an order directing further investigation under Section 156(3) of the Code cannot be passed in the absence of valid sanction under Section 19(1) of the Act. 14. In **Manju Surana v. Sunil Arora** : **(2018) 5 SCC 557** , the question that was considered was whether prior sanction for prosecution against a public servant was required before setting in motion even the investigative process under Section 156(3) of the Code. The Apex Court referred the question to be decided by a Larger Bench. 15. A Division Bench of this Court, in **Muhammed v. State** **of Kerala** : **2019 (1) KHC 239: 2019 (1) KLT 156** , has held that until a final decision is taken in the reference in **Manju Surana** (supra), the dictum laid down in **Anil Kumar** (supra) O.P.(Crl) No.565/2018 7 would hold the field. 16. Therefore, as per the law as it stood at the time when the learned Special Judge passed Ext.P9 order and as it stands now, a complaint filed against a public servant alleging commission of an offence specified in Section 19(1) of the Act cannot be forwarded by the court under Section 156(3) of the Code for investigation in the absence of sanction under Section 19(1) of the Act obtained by the complainant. 17. In Ext.P9 order, the learned Special Judge has relied upon the decision of this Court in **Maneesh v. State of Kerala : 2016 (1) KHC 96 : 2016 (1) KLT 323** and observed that previous sanction is not necessary for ordering investigation in exercise of the power under Section 156(3) of the Code. In the light of the decision of the Division Bench of this Court in **Muhammed** (supra), the view taken by the Single Bench of this Court in **Maneesh** (supra) cannot be followed. 18. Learned Special Judge could not have taken cognizance of the offences under the Act in the absence of sanction under O.P.(Crl) No.565/2018 8 Section 19(1) of the Act. The provision contained in Section 19(1) of the Act is couched in mandatory terms and forbids the court from taking cognizance of any offence mentioned therein against a public servant except with the previous sanction of the competent authority. Grant of sanction by the competent authority under Section 19(1) of the Act is a sine qua non for taking cognizance of the offence. The language employed in subsection (1) of Section 19 admits of no equivocation and operates as a complete and absolute bar to any Court taking cognizance of any offence mentioned therein against a public servant except with the previous sanction of the competent authority (See **Nanjappa v. State of Karnataka : AIR 2015 SC 3060** ). 19. In the instant case, as already found, in view of the decision in **Anil Kumar** (supra), in the absence of sanction under Section 19(1) of the Act, the learned Special Judge could not have forwarded the complaint under Section 156(3) of the Code for investigation. In view of the bar under Section 19(1) of the Act, he could not have taken cognizance of the offences under the Act and proceeded further. In such circumstances, even O.P.(Crl) No.565/2018 9 assuming that the allegations in the complaint and the findings in the vigilance enquiry report, prima facie, disclosed commission of offences under the Act by the accused persons, the learned Special Judge could not have acted upon such complaint without any sanction under Section 19(1) of the Act. 20. Section 19 of the Act has undergone changes by virtue of the amendment of the Act which came into effect from 26.07.2018. The newly introduced first proviso to Section 19(1) of the Act states that, no request can be made by a person, other than a police officer or an officer of an investigating agency or other law enforcement authority, to the Government or the competent authority for previous sanction for taking cognizance by the court of any of the offences specified in that provision unless such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted and the court has not dismissed the complaint under Section 203 of the Code and directed the complainant to obtain sanction for prosecution against the public servant for O.P.(Crl) No.565/2018 10 further proceeding. The second proviso to Section 19(1) of the Act states that, in case of any request from any such person, the Government or the competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant. 21. Therefore, after the amendment of Section 19(1) of the Act, in order to get sanction for prosecution, a private person has to satisfy two conditions. The first condition is that he should have filed a complaint in the competent court alleging the offences for which the public servant is sought to be prosecuted. The second condition is that the court has not dismissed such complaint under Section 203 of the Code but directed him to obtain sanction for prosecution against the public servant. In such a situation, the law now also provides an opportunity to the public servant concerned of being heard in the matter of granting sanction for prosecution. 22. In the instant case, Ext.P9 order passed by the learned Special Judge, forwarding the complaint under Section O.P.(Crl) No.565/2018 11 156(3) of the Code for investigation, is liable to be quashed in the absence of any sanction under Section 19(1) of the Act obtained and produced by the third respondent before the court. Once Ext.P9 order is quashed, it would mean that Ext.P10 F.I.R registered pursuant to such order and all further proceedings based on Ext.P10 F.I.R would also become non-est. 23. However, in exercise of the powers under Article 227 of the Constitution of India, the complaint filed by the third respondent in the court below cannot be quashed, especially in the absence of any order passed by the court below taking cognizance of the offences on the basis of the allegations in the complaint. 24. Quashing of Ext.P9 order will result in restoring the complaint to the file of the Special Court. In view of the amendment of Section 19(1) of the Act noticed earlier, it is for the Special Court to decide what further action should be taken by it on the complaint. 25. I have consciously refrained from discussing the merits of the allegations contained in Ext.P7 complaint lest it may O.P.(Crl) No.565/2018 12 cause prejudice to the parties in the further proceedings before the court below. 26. Consequently, the petition is allowed in part and Ext.P9 order passed by the Court of the Enquiry Commissioner and Special Judge, Kozhikode is set aside. Ext.P7 complaint shall stand restored to the file of the court below. Learned Special Judge shall pass appropriate orders on the complaint in accordance with law. It is made clear that this Court has not expressed any opinion on the merits of the allegations contained in Ext.P7 complaint. All pending interlocutory applications are closed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** **jsr** O.P.(Crl) No.565/2018 13 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PARTNERSHIP DEED DATED 05-07-1996** **EXHIBIT P2 TRUE COPY OF THE ASSIGNMENT DEED BEARING NO. 2307/1996 DATED 19-06-21996 EXECUTED BY SRI. PAUL** **EXHIBIT P2(a) TRUE COPY OF THE ASSIGNMENT DEED NO. 2308/1996 DATED 19-06-1996 EXECUTED BY SRI. PAUL.** **EXHIBIT P2(b) TRUE COPY OF THE ASSIGNMENT DEED NO. 2309/1996 DATED 19-06-1996 EXECUTED BY SRI. PAUL.** **EXHIBIT P2(c) TRUE COPY OF THE ASSIGNMENT DEED NO. 2516/1996 DATED 19-06-1996 EXECUTED BY SRI. PAUL.** **EXHIBIT P2(d) TRUE COPY OF THE ASSIGNMENT DEED NO. 25171996 DATED 19-06-1996 EXECUTED BY SRI. PAUL.** **EXHIBIT P2(e) TRUE COPY OF THE ASSIGNMENT DEED NO. 2518/1996 DATED 19-06-1996 EXECUTED BY SRI. PAUL.** **EXHIBIT P3 TRUE COPY OF THE LEASE DEED NO. 3703/2008 OF KOZHIKODE SUB REGISTRY** **EXHIBIT P4 TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 27-03-2008 EXHIBIT P5 TRUE COPY OF THE CIRCULAR DATED 20-052009 ISSUED BY DIRECTOR OF MINING AND GEOLOGY** O.P.(Crl) No.565/2018 14 ## **EXHIBIT P6** **TRUE COPY OF THE REPORT DATED 21-022018 SUBMITTED BY DIRECTOR OF MINING AND GEOLOGY** **EXHIBIT P7** - **TRUE COPY OF THE COMPLAINT DATED 12-012018 FILED BY THE COMPLAINANT 3RD RESPONDENT BEFORE THE LEARNED ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOZHIKODE** **EXHIBIT P8** - **TRUE COPY OF THE QUICK VERIFICATION REPORT DATED 26-03-2018 SUBMITTED BY THE DEPUTY SUPERINTENDENT OF POLICE VACP,KOZHIKODE** **EXHIBIT P9** - **A TRUE COPY OF THE ORDER DATED 15-052018 PASSED BY THE LEARNED ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOZHIKODE IN C.M.P NO. 24/2018** **EXHIBIT P10 TRUE COPY OF THE FIR DATED 25-05-2018 REGISTERED BY THE VACB, KOZHIKODE AS V.C NO. 04/2018** - **EXHIBIT P11 TRUE COPY OF THE ORDER DATED 20-05-2009 BEARING NO. 4836/M3/2005 ISSUED BY THE DIRECTOR OF MINING AND GEOLOGY** - **EXHIBIT P12 TRUE COPY OF THE LETTER DATED 12-012015 ISSUED BY THE THAHSILDAR KOZHIKODE TO THE GEOLOGIST** - **EXHIBIT P13 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 26-09-2018 SUBMITTED DIRECTOR OF MINING AND GEOLOGY IN WPC NO. 12276/2018** - **EXHIBIT P14 TRUE COPY OF THE REPORT DATED 06-022018 SUBMITTED BY THE INVESTIGATING OFFICER IN O.P(CRL.) 132/2017** **EXHIBIT P15 TRUE COPY OF THE STATEMENT DATED 06-022018 SUBMITTED BY THE INVESTIGATING OFFICER IN O.P(CRL.) 132/2017** O.P.(Crl) No.565/2018 15 ## **EXHIBIT P16** - **TRUE COPY OF THE JUDGMENT DAT3ED 08-022018 IN OP(CRL.) NO. 132/2017** - **EXHIBIT P17** - **TRUE COPY OF THE FINAL REPORT IN CRIME NO. 28/2017 OF MUKKOM POLICE STATION, KOZHIKODE** - **EXHIBIT P18 TRUE COPY OF THE GAZETTE NOTIFICATION BEARING NO.275 DATED 19.03.2002** - **EXHIBIT P19** - **TRUE COPY OF THE GAZETTE NOTIFICATION BEARING NO.89 DATED 10.01.2008** - **EXHIBIT P20** - **TRUE COPY OF THE LETTER DATED 20.10.2014 ISSUED BY THE GEOLOGIST TO THE TALUK SURVEYOR** - **EXHIBIT P21** - **TRUE COPY OF THE REPORT DATED 12.01.2015 ISSUED BY THE TAHSILDAR TO THE DISTRICT GEOLOGIST** - **EXHIBIT P22** - **TRUE COPY OF THE CHALLAN DATED 25.03.2015 EVIDENCING PAYMENT OF RS.54,500/-** ## **2ND RESPONDENTS'** **EXHIBITS :** ## **EXHIBIT R2(a) TRUE COPY OF THE SURVEY SKETCH.** ## **3RD RESPONDENTS'** **EXHIBITS :** ## **EXHIBIT-R3(a)** **A TRUE COPY OF THE PROCEEDINGS DATED 17-6-2008 OF THE DIRECTOR OF MINING AND GEOLOGY** O.P.(Crl) No.565/2018 16 **EXHIBIT-R3(b)** **A TRUE COY OF THE REPORT NO.SC58/2014/KKD DATED NIL-9-2014.** - **EXHIBIT-R3(c)** **A TRUE COPY OF THE LETTER NO.E12(SC58/2014/KKD 16249/2014 DATED 17-8-2015 ISSUED BY THE DIRECTOR OF VIGILANCE AND ANTI CORRUPTION BUREAU TO THE ADDL.CHIEF SECRETARY TO GOVERNMENT, VIGILANCE DEPARTMENT.** - **EXHIBIT-R3(d) A TRUE COPY OF LETTER NO.21239/A1/15/ID DATED 26-9-2015 ISSUED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT, INDUSTRIES DEPARTMENT.** **EXHIBIT-R3(e) A TRUE COPY OF LETTER NO.10484/M.4/2015 DATED 5-11-2015 ISSUED BY THE DIRECTOR OF MINING AND GEOLOGY. EXHIBIT-R3(f) A TRUE COPY OF LETTER NO.D.O.Z/M.2108/16 DATED 3-11-2016 ISSUED BY THE SENIOR GEOLOGIST TO THE DIRECTOR OF MINING AND GEOLOGY, ACCUSED NO.5 EXHIBIT-R3(g) A TRUE COPY OF THE SITE INSPECTION REPORT DATED 2-11-2016 PREPARED BY THE THEN SENIOR GEOLOGIST, ACCUSED NO.1 EXHIBIT-R3(h) A TRUE COPY OF LETTER NO.D.O.Z/M.2265/16 DATED 15-12-2016 ISSUED BY THE THEN SENIOR GEOLOGIST, ACCUSED NO.1. EXHIBIT-R3(i) A TRUE COPY OF LETTER NO.D.O.Z/M.2388/16 DATED 21-12-2016 ISSUED BY THE THEN SENIOR GEOLOGIST, ACCUSED NO.1 EXHIBIT-R3(j) A TRUE COPY OF LETTER NO.D.O.Z/M.2216/2015 DATED 6-3-2017 ISSUED BY THE THEN SENIOR GEOLOGIST, ACCUSED NO.1.** O.P.(Crl) No.565/2018 17 **EXHIBIT-R3(k) A TRUE COPY OF LETTER NO.D.O.NO.21239/A1/2015/1D DATED 11-82017 ISSUED BY THE UNDER SECRETARY, INDUSTRIES (A) DEPARTMENT. EXHIBIT-R3(l) A TRUE COPY OF LETTER NO.10484/M4/2015 DATED 15-11-2017 ISSUED BY ACCUSED NO.5 TO ACCUSED NO.1 EXHIBIT-R3(m) A TRUE COPY OF REPORT NO.D.O.Z/M.2216/2015 DATED 4-12-2017 SUBMITTED BY ACCUSED NO.1. EXHIBIT-R3(n) A TRUE COPY OF NOTICE DATED 6-12-2017 ISSUED BY ACCUSED NO.1 TO THE PETITIONER. EXHIBIT-R3(o) A TRUE COPY OF REPLY DATED 20-12-2017 SUBMITTED BY THE PETITIONER TO THE THEN SENIOR GEOLOGIST, ACCUSED NO.1. EXHIBIT-R3(p) A TRUE COPY OF THE JUDGMENT DATED 2405-2018 IN W.P.(C) NO.4974 OF 2017** **EXHIBIT-R3(q) A TRUE COPY OF THE SATELLITE MAP OBTAINED THROUGH GOOGLE MAPS IN 2018 HAVING PERIMETER 924M.** **EXHIBIT-R3(r) A TRUE COPY OF THE APPLICATION DATED 10/7/2018 SUBMITTED BY THE PETITIONER.** **EXHIBIT-R3(s) A TRUE COPY OF THE QUARRYING PERMIT DATED 5-9-2018 ISSUED BY THE SENIOR GEOLOGIST.** **True copy** **PS to Judge**