Crl.M.C.No.5714/2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 7[TH] DAY OF DECEMBER 2021 / 16TH AGRAHAYANA, 1943** **CRL.MC NO. 5714 OF 2021** **- (AGAINST THE PROCEEDINGS IN VC 02/2021/PTA OF THE VIGILANCE AND ANTI CORRUPTION BUREAU, PATHANAMTHITTA UNIT POLICE STATION,** ## **PATHANAMTHITTA DISTRICT** ## **PETITIONERS/ACCUSED NOS.1 TO 4:** 1 JAYAPRAKASH J. AGED 47 YEARS S/O. JANARDHANAN PILLAI, NIRMALYAM, AYOOR P.O., AYOOR, KOLLAM DISTRICT. 2 D.SUDHEESH KUMAR AGED 55 YEARS S/O. DHAMODHARAN, SUDHIPRABHA, MANNADI P.O., ADOOR, PATHANAMTHITTA DISTRICT. 3 V.S.RAJENDRA PRASAD AGED 52 YEARS S/O. SUBRAMANIAN, VALATHAJ MANA, KOTHAKULANGARA, ANGAMALI P.O., ERNAKULAM DISTRICT. 4 N.VASUDEVAN NAMBOODIRI AGED 52 YEARS S/O. NARAYANAN NAMBOODIRI, SUKRUTHAM, TC47/3003(3), CRA-H LINE 1, VANIYATH LANE, POOJAPPURA, THIRUVANANTHAPURAM DISTRICT. BY ADV BABU S. NAIR ## **RESPONDENTS/STATE & COMPLAINANT:** 1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682 031. 2 THE STATION HOUSE OFFICER VIGILANCE AND ANTI CORRUPTION BUREAU, PATHANAMTHITTA UNIT POLICE STATION, PATHANAMTHITTA DISTRICT, PIN-689 645. SRI A RAJESH -SPL PP VACB, SMT REKHA S-SR PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.12.2021, THE COURT ON 07.12.2021 PASSED THE FOLLOWING: Crl.M.C.No.5714/2021 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J ************************ Crl.M.C.No.5714 of 2021 ------------------------------------Dated this the 7[th] day of December, 2021 ---------------------------------------------- ## **O R D E R** The petitioners are officers of the Travancore Devaswom Board. They are accused of committing forgery, misappropriation of money and cheating. 2. The petitioners figure as accused 1 to 4 in the case registered as VC-02/2021/PTA by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB), Pathanamthitta under Section 13(1)(a) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and also under Sections 420, 468 and 471 of the Indian Penal Code. 3. The first petitioner, who is the first accused in the case, was the Administrative Officer of the Travancore Devaswom Crl.M.C.No.5714/2021 3 Board. The second and the third petitioners, who are the second and the third accused in the case, were Executive Officers in the Travancore Devaswom Board at Sabarimala. The fourth petitioner, who is the fourth accused in the case, was employed as Junior Superintendent in the Travancore Devaswom Board. 4. The summary of the allegations against the petitioners, as mentioned in Annexure-A F.I.R, is as follows: _“That A1, while working as Administrative Officer, Travancore Devaswom Board, in charge of the running of Devaswom Board Mess at Nilakkal during the Mandala Makaravilakku Festival 201819 and as such being a public servant, with the intention to misappropriate funds entrusted to him as public servant forged bills and invoices in the name of J.P.Traders, used them as genuine and sanctioned a total amount of Rs. 59,98,029/- vide Cheque Nos. (1) 351013, (2) 441302, (3) 441543 and (4) 601430 of Dhanalakshmi Bank, got the cheques passed with the aid of A2 to A4 at various dates during the year 2018-19 and delivered one cheque bearing the No. 351013 for Rs.8,20,935/alone to Jayaprakash B, owner of J.P.Traders who had supplied vegetables and groceries to the_ Crl.M.C.No.5714/2021 4 _Devaswom Mess at Nilakkal, and encashed the remaining three cheques fraudulently and thereby misappropriated an amount of Rs.51,77,194/-, committing the offences punishable under Sections 13(2) r/w 13(1)(a) of PC Act (Amendment) 2018 and Sections 420, 468 and 471 of IPC”._ 5. The accused have filed this application under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') for quashing the entire proceedings against them initiated on the basis of Annexure-A F.I.R. 6. Heard learned counsel for the petitioners and the Learned Public Prosecutor. In order to refute the contentions raised by the petitioners, the investigating officer produced the case diary for perusal of this Court. I have perused it. 7. One Jayaprakash.B, the proprietor of J.P.Traders, had supplied vegetables and groceries to the Travancore Devaswom Board. He made a complaint to the Chief Minister of Kerala raising an allegation that the first petitioner had created false bills in the name of his firm and misappropriated huge amount. This complaint forms the basis of the case initiated against the Crl.M.C.No.5714/2021 5 petitioners. 8. Learned counsel for the petitioners has raised two contentions in support of the prayer for quashing Annexure-A F.I.R. They are : (1) Before registration of the F.I.R against the petitioners, a preliminary inquiry should have been conducted to ascertain whether the allegations raised against the petitioners in the complaint disclosed commission of any cognizable offence. No such preliminary inquiry, as contemplated in the decision of the Supreme Court in **Lalita Kumari v. Government of U.P : (2014) 2 SCC 1,** was conducted. (2) Before registration of the F.I.R against the petitioners, prior approval from the competent authority, as provided under Section 17A of the Act, was not obtained by the investigating officer. Therefore, the registration of the case against the petitioners and the investigation conducted against them are illegal and liable to be quashed. ## – Preliminary Inquiry Whether Mandatory? 9. In **Lalita Kumari** (supra), the Supreme Court has not laid down that in all corruption cases a preliminary inquiry shall Crl.M.C.No.5714/2021 6 be conducted before registration of F.I.R. In fact, the Supreme Court has categorically held that registration of F.I.R is mandatory under Section 154 of the Code, if the information received by the police officer disclosed commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. The Apex Court has held that, if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, then a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. It has been further held that the scope of the preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 10. In **State of Telangana v. Managipet Sarveshwar Reddy : (2019) 19 SCC 87** , the Supreme Court has held as follows: _“The purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints, in furtherance of acting fairly and objectively. Herein,_ Crl.M.C.No.5714/2021 7 _relevant information was available with the informant in respect of prima facie allegations disclosing a cognizable offence. Therefore, once the officer recording the FIR is satisfied with such disclosure, he can proceed against the accused even without conducting any inquiry or by any other manner on the basis of the credible information received by him. It cannot be said that the FIR is liable to be quashed for the reason that the preliminary inquiry was not conducted. The same can only be done if upon a reading of the entirety of an FIR, no offence is disclosed. ............... Therefore, we hold that the preliminary inquiry warranted in Lalita Kumari is not required to be mandatorily conducted in all corruption cases.”_ (emphasis supplied) 11. **Managipet** (supra) categorically holds that F.I.R is not liable to be quashed for the reason that preliminary inquiry was not conducted. It further holds that preliminary inquiry warranted in **Lalita Kumari** (supra) is not required to be mandatorily conducted in all corruption cases. 12. In **Central Bureau of Investigation v. T.H.Vijayalakshmi : 2021 SCC OnLine SC 923** , the principles Crl.M.C.No.5714/2021 8 laid down in **Managipet** (supra) have been reiterated by the Supreme Court. The Apex Court has held that the accused has no right to demand a preliminary inquiry and whether such inquiry is required or not will depend on the facts and circumstances of each case and preliminary inquiry cannot be said to be a mandatory requirement without which a case cannot be registered against the accused for offences under the Act. The Apex Court has further held that institution of a preliminary inquiry in cases of corruption is not mandatory before the registration of F.I.R and if the information received discloses the commission of a cognizable offence, the police officer can directly register a case without conducting any preliminary inquiry. 13. In **N.Pavithran v. State of Kerala [2021 (4) KLT OnLine 1123** : **2021 SCC OnLine Ker 2984 : 2021 Cri.L.J 3842]** , this Court has held that it is a misconception that conducting preliminary inquiry in all corruption cases is mandatory before registration of F.I.R and the fact that no preliminary inquiry was conducted before registration of the FIR Crl.M.C.No.5714/2021 9 is not a sufficient ground to find that the investigation conducted was illegal. 14. Therefore, it is now well-settled that, in all corruption cases, it is not necessary to conduct a preliminary inquiry before registration of the F.I.R. Further, F.I.R in a corruption case is not liable to be quashed on the ground that no preliminary inquiry was conducted. 15. However, in the present case, the VACB had conducted a preliminary inquiry before registration of Annexure-A F.I.R. Therefore, there is no substance in the first contention raised by the learned counsel for the petitioners. ## Prior Approval Under Section 17A of the P.C.Act 16. The next question to be considered is whether prior approval under Section 17A of the Act is necessary before conducting inquiry or investigation into an offence under the Act. 17. Section 17A was introduced in the Act by way of amendment, as per Act 16 of 2018, with effect from 26.07.2018. Section 17A of the Act reads as follows: Crl.M.C.No.5714/2021 10 “ **17-A. 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 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:_ Crl.M.C.No.5714/2021 11 _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.”_ 18. A close scrutiny of the provisions contained in Section 17A of the Act would reveal the following: (1) The bar under Section 17A of the Act operates against a police officer (2) It prohibits a police officer from conducting any enquiry or inquiry or investigation, into any offence alleged to have been committed by a public servant under the Act without the previous approval of the prescribed authority (3) The bar under the provision operates or applies only when the offence allegedly committed by a public servant under the Act relates to any recommendation made or decision taken by such public servant in discharge of his official functions or duties (4) The authority competent to grant previous approval for enqiry or inquiry or investigation is the Central Government in the case of a person employed in connection with the affairs of the Union (5) The authority competent to grant previous approval for enquiry or inquiry or Crl.M.C.No.5714/2021 12 investigation is the State Government in the case of a person employed in connection with the affairs of a State (6) The authority competent to grant previous approval for enquiry or inquiry or investigation in the case of any other person is the authority competent to remove the public servant from his office (7) The provision also applies in case of a retired public servant. The previous approval envisaged under Section 17A of the Act is necessary even if the public servant has ceased to hold his office (8) Section 17A of the Act does not apply to 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 (9) The time which shall be taken by the authority concerned to convey its decision on granting of approval is three months (10) The authority may, for reasons to be recorded in writing, extend the above time by a further period of one month. 19. The object of Section 17A of the Act is to protect public servants from malicious, vexatious and baseless prosecution. It cannot be considered as a protective shield for Crl.M.C.No.5714/2021 13 corrupt public servants. A public servant cannot be left to be under constant apprehension that bona fide decisions taken by him would be open to enquiry, inquiry or investigation on the basis of frivolous and false complaints made against him. If every decision taken by a public servant is viewed with suspicion, the public administration will come to a grinding halt as the persons responsible for taking decisions would lose their enthusiasm. Section 17A of the Act intends to avoid such a situation. 20. The requirement of seeking previous approval presupposes that the offence under the Act allegedly committed by the public servant is relatable to any recommendation made or decision taken by him in discharge of his official functions or duties. The bar under Section 17A of the Act does not apply to investigation conducted into all or every offence under the Act allegedly committed by a public servant. The bar under the provision operates or applies only when the offence allegedly committed by a public servant under the Act relates to any recommendation made or decision taken by such public servant Crl.M.C.No.5714/2021 14 in discharge of his official functions or duties. 21. The expression “discharge of his official functions or duties” in Section 17A of the Act reflects the legislative intent that the protection envisaged is not a blanket protection. The purpose is to protect an honest and responsible public servant if the recommendation made or decision taken by him is in discharge of his official functions or duties. As a necessary corollary, previous approval is required only if the recommendation made or decision taken is directly concerned with the official functions or duties of the public servant. When a recommendation or decision is made by a public servant, which is not directly and reasonably connected with his official functions or duties, he is not entitled to get the protection under Section 17A of the Act. 22. In order to apply the provisions of Section 17A of the Act, there shall be a “decision” or “recommendation” by a public servant against which an enquiry or investigation is under contemplation. Such “decision” or “recommendation” shall be a Crl.M.C.No.5714/2021 15 “decision” taken or “recommendation” made by the public servant in discharge of his official functions or duties. 23. In the present case, the offence under Section 13(1) (a) the Act is alleged against the accused. Section 13(1)(a) of the Act states that, a public servant is said to commit the offence of criminal misconduct, if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so. 24. In the present case, there is no allegation against accused 2 to 4 that the offence under Section 13(1)(a) of the Act allegedly committed by them relates to any decision taken or recommendation made by them in discharge of their official functions or duties. Therefore, the bar under Section 17A of the Act does not apply to the investigation of the case against them. 25. The allegation against the first petitioner, who is the first accused, is that he sanctioned payment of money on the Crl.M.C.No.5714/2021 16 basis of bogus bills created by him and that he misappropriated the money. Learned counsel for the petitioners contended that the offence under Section 13(1)(a) of the Act alleged against the first accused relates to the decision taken by him to grant sanction for payment of money to J.P.Traders and therefore, prior approval from the competent authority was required before conducting investigation into the above offence allegedly committed by him. 26. There is no merit in the above contention. If the allegation against the first accused was only that he sanctioned payment of money and thereafter, he misappropriated the money without paying it to the person to whom it was due, the aforesaid contention could have perhaps been accepted. Here, the allegation is that the first accused sanctioned payment of money on the basis of false and forged documents created by him and that he misappropriated the amount without actually paying it to the party concerned. Sanction for payment of money on the basis of forged documents makes all the difference. The Crl.M.C.No.5714/2021 17 decision taken or recommendation made by the first accused for payment of money cannot be considered to be an act done in discharge of his official functions or duties because such decision or recommendation was made by him not on the basis of genuine documents but on the basis of documents allegedly forged by him. ## 27. In **Shambhoo Nath Misra v. State of U.P** : **AIR** ## **1997 SC 2102** , the Apex Court has held as follows: _“It is not the official duty of the public servant to fabricate the false record and misappropriate the public funds etc in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of same transaction.”_ 28. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity (See **Parkash Singh Badal v.** Crl.M.C.No.5714/2021 18 ## **State of Punjab : AIR 2007 SC 1274** ). ## 29. In **Devender Kumar v. Central Bureau of Investigation : (2019) 1 Crimes 726** , the Delhi High Court has observed as follows: _“Section 17A as it reads and the legislative intent in its enactment can only be to protect public servants in the bonafide discharge of official functions or duties. However, when the act of a public servant is ex-facie criminal or constitutes an offence, prior approval of the Government would not be necessary”._ ## 30. In **T.O.Sooraj v. State of Kerala [2021 (4) KLT OnLine 1035** : **2021 SCC OnLine Ker 2896** ], this Court had occasion to observe as follows: _“Use or utilization of public funds by a public servant under the colour of authority but really for his own benefit cannot be considered as an act done in discharge of his official functions or duties. Such an act is not entitled to get the protection under Section 17A of the Act”._ Crl.M.C.No.5714/2021 19 ## 31. In **H.H.B. Gill v. The King : AIR 1948 PC 128** , it has been observed as follows: _“A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act : nor does a government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office”._ 32. Tested on the touchstone of the principles mentioned above, the decision taken or recommendation made by the first accused to grant sanction for payment of money on the basis of documents allegedly forged by him and committing misappropriation of the amount cannot be considered as acts done by him in the discharge of his official duties or functions. Therefore, no prior approval from the competent authority was Crl.M.C.No.5714/2021 20 necessary for investigation into the offence under Section 13(1) (a) of the Act alleged against him. 33. In the above circumstances, there is no need to consider the question whether the prior approval obtained from the State Government by the investigating officer in this case is an approval by or from the competent authority for investigation into the offence under the Act alleged against the first petitioner. 34. The discussion above leads to the conclusion that the petitioners have not made out any sufficient ground to grant the relief of quashing Annexure-A F.I.R and the investigation conducted on the basis of it. Consequently, the petition is dismissed. ## (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.5714/2021 21 ## **APPENDIX OF CRL.MC 5714/2021** ## PETITIONER'S ANNEXURES |Annexure A|TRUE COPY OF THE F.I.R IN VC/02/2021 OF| |---|---| ||THE VIGILANCE AND ANTI CORRUPTION| ||BUREAU, PATHANAMTHITTA UNIT POLICE| ||STATION DATED, 6.10.2021.| |Annexure B|TRUE COPY OF THE VOUCHER FOR THE CHEQUE| ||FOR AN AMOUNT OF RS.39,17,1272/- DATED| ||17.1.2019.| |Annexure C|TRUE COPY OF THE VOUCHER FOR THE CHEQUE| ||FOR AN AMOUNT OF RS.11,28,922/- DATED| ||3.5.2019.| |Annexure D|TRUE COPY OF THE VOUCHER FOR THE CHEQUE| ||FOR AN AMOUNT OF RS.1,31,100/- DATED| ||23.12.2019.| |Annexure E|TRUE COPY OF THE RELEVANT PAGE OF THE| ||STATEMENT OF ACCOUNT OF THE DEVASWOM| ||BOARD IN THE DHANALAKSHMI BANK LTD.| |Annexure F|TRUE COPY OF THE RELEVANT PAGE OF THE| ||STATEMENT OF ACCOUNT OF THE DEVASWOM| ||BOARD IN THE DHANALAKSHMI BANK LTD.| |Annexure G|TRUE COPY OF THE LETTER SENT BY THE WIFE| ||OF THE COMPLAINANT - DHANYA JAPRAKASH TO| ||THE COMMISSIONER, TRAVANCORE DEVASWOM| ||BOARD, DATED, 28.10.2020.| |Annexure H|TRUE COPY OF THE COMMUNICATION ISSUED BY| ||THE DIRECTOR, VIGILANCE AND ANTI| ||CORRUPTION BUREAU TO THE COMMISSIONER| ||TRAVANCORE DEVASWOM BOARD DATED,| ||09.11.2021.| |RESPONDENTS'<br>ANNEXURES|NIL| ||TRUE COPY| ||PS TO JUDGE|