Crl.R.P.No.2529 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933** **Crl.Rev.Pet.No. 2529 of 2011()** **------------------------------** **CC.11/2010 of ENQUIRY COMMISSIONER & SPECIAL JUDGE (VIGILANCE) THIRUVANANTHAPURAM.** **....................** ## **REVISION PETITIONERS/PETITIONERS,ACCUSED NO.1:** **-----------------------------------------------------------------------------------** **M.V.ARAVINDAKSHAN NAIR,S/O.VELU NAIR, SREESAILAM, SASTHAMKOTTA, KOLLAM.** **BY ADVS. SRI.P.RAVEENDRAN PILLAI, SMT.INDIRA RAVEENDRAN.** ## **RESPONDENT(S): RESPONDENT/COMPLAINANT:** **--------------------------------------------------------------------------** **STATE OF KERALA, REP. BY DY.S.P.VACB SIU, THIRUVANANTHAPURAM THROUGH STATE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SRI. T.R. RAJESH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Kss** ## **CRRP.NO.2529/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX.A1: COPY OF CRL.M.P.NO.2092/2011. ANNEX.A2: COPY OF ORDER IN CRL.M.P.NO.2092/2011 DTD. 17/09/2011 OF THE COURT OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) THIRUVANANTHAPURAM.** ## **RESPONDENT'S ANNEXURES: N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **S.S.SATHEESACHANDRAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2529 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - Dated this, the 28[th] October, 2011** ## **O R D E R** Revision is by the first accused in C.C.No.11/10 on the file of the Enquiry Commissioner and Special Judge (Vigilance), Thiruvananthapuram. In the abovesaid case, he is being prosecuted for offences under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and under Sections 409 and 420 read with Section 120-B of the Indian Penal Code. 2. The allegations imputed against the petitioner/1[st] accused, in brief, was that while functioning as the Block Development officer and as a public servant in Bharanikavu, Alappuzha District, hatching a conspiracy with the other ## **Crl.R.P.No.2529 of 2011** ## **:: 2 ::** accused, abusing his official position, he had drawn cheques for various sums from the Government S.B.A/c, which was maintained in the name of the Block Development officer solely for the transaction for the Central Aided projects, without making any entries in the relevant registers, and, thereby criminally misappropriated such public funds causing wrongful loss to the Government and also the actual beneficiaries to whom such funds are intneded and thus he has committed the offences. 3. On his appearance before the ocurt below and being served with the relevant records on which prosecution is launched against him he moved Annexure A1 petition under Section 239 of the Code of Criminal Procedure {for short "the Code"} seeking his discharge in which among ## **Crl.R.P.No.2529 of 2011** **:: 3 ::** other contentions, cognizance taken of the offences against him by the court was impeached for want of sanction under Section 197 of the Code. 4. The learned Special Judge, after hearing both sides, the counsel for the petitioner and also the Legal Advisor, negatived the plea of discharge and dismissed that petition under Annexure A2 order. Propriety, legality and correctness of that order is challenged in this revision. 5. The learned counsel for the petitioner, adverting to the point raised for determining in Annexure A2 order by the Special Judge, contended that the question posed for consideration as to whether cognizance could be taken against him without sanction under Section ## **Crl.R.P.No.2529 of 2011** ## **:: 4 ::** 197 of the Code as such required to be raised and determined in the light of the contentions advanced by him impeaching the prosecution, but that was not done by the court below, and, thereby the order of the court below suffers from serious infirmity. Previous enquiries conducted by the Vigilance Department, the findings of which are stated in Annexure A1 petition which ruled out his complicity in the grave imputations made of criminally misappropriating the public funds, are also pressed into service by the counsel to contend that his prosecution after his retirement in 2003 is nothing but an abuse of the process of the court. In the final report filed under Section 173 (2) of the Code in the case, the investigating agency has not cited even a single beneficiary to ## **Crl.R.P.No.2529 of 2011** ## **:: 5 ::** whom the amount was due with respect to the sums alleged to have been withdrawn by cheques, and that being so, the question of criminal misappropriation, according to the counsel, has no foundation or merit at all. Since the acts imputed in relation to the drawing of cheques and withdrawl of sums had been done by the petitioner in his capacity as a Block Development officer, a public servant, according to the counsel, without sanction from the appropriate Government under Section 197 of the Code, the court is incompetent to take cognizance of the offences imputed against him. 6. Going through the order passed by the learned Special Judge, with reference to the submissions made by the counsel, questioning its correctness, I find, there is no merit in any of ## **Crl.R.P.No.2529 of 2011** ## **:: 6 ::** the challenges advnaced. At the stage of enquiry under Section 239 of the Code, the outlook of the coiurt is only to see whether a prima facie case has been made out on the materials placed by the prosecution to proceed further with the trial of the accused for the offences imputed or any other offences for which he is competent to try. True, when cognizance of the offences being taken against the accused is challenged for want of sacntion under any law whatsoever it is a matter touching upon the jurisdiction of the court and essentially, it has to be examined and considered. But raising the mere plea that since the petitioner is a retired public servant and the acts were done while holding the post of a public servant, that by itself, would not enable the petitioner/accused to contend that he is ## **Crl.R.P.No.2529 of 2011** **:: 7 ::** insulated from prosecution without sanction being obtained under Section 197 of the Code. The offence imputed against the accused is one of criminal misappropriation, which is no part of the duty of a public servant. To insulate from prosecution under the shield of Section 197 of the Code, the act imputed against him must fall within the scope and range of 'official duties' of the public servant concerned. The learned Special Judge has rightly and correctly taken note of the ambit and scope of Section 197 of the Code as guided by the decisions rendered by the Apex Court in repelling the contentions taken by the petitioner/first accused that he is entitled to get protection from prosecution under that Section. The materials referred to by the counsel for the petitioner as regards the ## **Crl.R.P.No.2529 of 2011** ## **:: 8 ::** previous report of the investigating agency have no relevance at this stage in examining whether a prima facie case has been made out against the accused, to presume the guilt for the offences imputed and to proceed with the trial of the case. The learned Special Judge, after examining the materials, the report, and the documents sent with it, has come to the conclusion that a prima facie case is made out to proceed with the trial of the petitioner/1[st] accused also. In the context, it is also to be noted the Apex Court in State of Kerala v. Padmanabhan Nair {1999 Crl.L.J. 3696} has held that the plea of want of sanction under Section 197 of the Code to challenge the prosecution of the accused roceed for the offence under Section 409 read with Section 120 B of the Indian Penal Code, has no merit. ## **Crl.R.P.No.2529 of 2011** ## **:: 9 ::** There is no merit in the revision, and it is dismissed. Sd/- **(S.S.SATHEESACHANDRAN) JUDGE** sk/- //true copy// P.S. to Judge.