Faizal R.S. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 9[TH] DAY OF AUGUST 2021 / 18TH SRAVANA, 1943** **CRL.MC NO. 3008 OF 2021** ## **PETITIONER/ACCUSED NO.12:** FAIZAL R.S., AGED 43 YEARS S/O. LATE R.K. SYED MUHAMMED, RESIDING AT RAYAN MARAKKAR VEEDU, KUMARANELLOOR P.O., MUKKAM, KOZHIKODE-673602. BY ADVS. S.SREEKUMAR (SR.) P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA S.K.SAJU ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, KOZHIKODE. 3 SRI. BASHEER, AGED 51 YEARS, S/O. ABDURAHIMAN, PUTHIYATTUKUNDIL, KOOMBARA P.O., KOZHIKODE-673604. BY ADVS. P.J.MATHEW EBIN MATHEW AKHILA SHOJI SRI A RAJESH SPL PP VACB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.08.2021, THE COURT ON 09.08.2021 DELIVERED THE FOLLOWING: Crl.M.C.No.3008/2021 2 ## **R.NARAYANA PISHARADI, J ************************ Crl.M.C.No.3008 of 2021 ------------------------------------Dated this the 9[th] day of August, 2021 ------------------------------------------- ## **O R D E R** The petitioner is Accused No.12 in the case registered as V.C.03/2017/KKD by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB), Kozhikode Unit under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and also under Sections 468, 471 and 120B of the Indian Penal Code. 2. The petitioner was the Revenue Inspector in the Land Tribunal, Kozhikode. The third respondent filed Annexure-1 complaint in the Court of the Enquiry Commissioner and Special Judge, Kozhikode against 16 persons, including the petitioner. Crl.M.C.No.3008/2021 3 3. On receiving the complaint, as per Annexure-2 order, the Special Court forwarded it to the Dy.S.P, VACB, Kozhikode for verification and report. 4. On the basis of the facts revealed in the quick verification (preliminary enquiry), Annexure-3 first information report (FIR) was registered against 14 persons, including the petitioner for the offences mentioned above. 5. The allegations against the accused, as stated in the F.I.R, are as follows: _“The quick verification revealed that A1 M.K.Paul, S/o.Kuriakose, Madappallil House, Koompara, who had obtained land from one Aamina Umma and Chekkootty Haji in 1960 over oral lease, remitted tax and obtained pattayam for 3.00 acres of land in 1976 and 2.50 acres of land in 1981 for cultivable land only, but he, hatching a criminal conspiracy with A2 Sri.Ajas, S/o.M.C.Muhammed, Musaliarakath House, Koodaranji, A3 Azad.M.M, S/o.M.C.Muhammed, Musaliarakath House, Koodaranji, A4 Sri.Shamsudeen S/o. M.C. Muhammed, Musaliarakath House, Koodaranji and A6 Sri.Abdurahiman, S.o.Vayalil Muhammed_ Crl.M.C.No.3008/2021 4 _Mon Haji, created forged sale deeds with the help of A7 Smt.K.K.Jameela, Document Writer, showing the sale of 11.5 acres of rocky land which is excess land, adjacent to the property in his actual possession and got it registered with the connivance of A8 Sri.Shanmugha Chettiyar, who was the then Sub Registrar of Mukkom in which A10 Sri.Ismail, S/o Kunju Moideen, Muringattukandi House, Thiruvampadi, A11 Sri.Unnen S/o.Kunju Moideen, Muringattukandi House, Thiruvampadi, were witnesses following which A9 A.Chandran, the then Village Officer accepted land tax illegally on the land which came to the possession of the A2 to A6 illegally. Subsequently during 2008, A2 to A6 conspired with A12 R.S.Faisal, the then Revenue Inspector and A13 Sri.V.P.Mukundan, the Land Tribunal Thahsildar of the period and obtained pattayam illegally on the above land with the support of A14 Sri.Mani, former Village Officer, Kumaranellur, who gave a false report.”_ 6. After completing the investigation, the VACB filed Annexure-7 final report (closure report) in the Special Court praying that further action in the matter may be dropped. Crl.M.C.No.3008/2021 5 7. In Annexure-7 report, it is stated as follows: _“The foregone discussion reveals that there is no substantial evidence to prove that the accused A8, A9, A12, A13 and A14 as such being public servants abused their official position and acted to have undue advantage to A1 to A6. There are no documents to show that land in question is surplus land or any other category of Government land. In the absence of sufficient evidence to prove the criminal misconduct from the part of Government officials, no action is recommended against the accused persons. Due to lack of ample evidences and in the light of the orders of the Honourable High Court in O.P.(Crl) No.132/17, sanction may accord to Drop Further Action in this case.”_ 8. The Special Court considered Annexure-7 final report and passed Annexure-8 order, directing further investigation in the case. The relevant portion of Annexure-8 order reads as follows: _“I am of the view that there was no proper investigation regarding certain vital aspects. So, I am of the considered view that a further investigation is to be ordered in this matter. Therefore, the negative final report cannot be_ Crl.M.C.No.3008/2021 6 _accepted._ _In the result, the final report is not accepted and the Investigating officer is directed to conduct further investigation.”_ 9. This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') by Accused No.12 seeking the following reliefs: _“(i) Call for the original records leading to Annexure 3 and Annexure 8, peruse the same and quash/set aside the same as illegal and unjustifiable._ _(ii) To grant such other and appropriate reliefs as the petitioners may pray for from time to time and which the Hon'ble Court deems fit to grant in the interests of justice.”_ 10. Heard learned senior counsel for the petitioner and the learned Public Prosecutor and also the learned counsel for the third respondent. 11. In the petition, the legality and validity of Annexure-3 FIR and Annexure-8 order are challenged on factual as well as legal grounds. However, at the time of hearing, learned senior counsel for the petitioner has raised only one contention with regard to the legality and validity of Annexure-3 FIR and Crl.M.C.No.3008/2021 7 Annexure-8 order. Learned senior counsel submitted that, in the absence of sanction of the competent authority under Section 19 of the Act, the Special Court had no power to pass an order under Section 156(3) of the Code and that the FIR registered against the petitioner, who is a public servant, without the sanction of the competent authority under Section 19 of the Act, is invalid. Learned senior counsel also submitted that, in the absence of sanction of the competent authority under Section 19 of the Act, the Special Court had no power to pass Annexure-8 order, directing further investigation in the case. Learned senior counsel for the petitioner relied upon the decision of the Supreme Court in **Anil Kumar v. Aiyappa: (2013) 10 SCC 705** in support of his contention. 12. Section 19(1) of the Act (as it stood before its 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. Crl.M.C.No.3008/2021 8 13. There is no dispute with regard to the fact that, at the time of commission of the alleged offences, the petitioner was a public servant as defined under Section 2(c) of the Act. 14. The question considered by the Supreme Court in **Anil Kumar** (supra) was, whether the Special Judge/Magistrate was justified in referring a private complaint for investigation by the police in exercise of the power conferred under Section 156 of the Code, without the production of a valid sanction order under Section 19 of the Act. The Apex Court also examined the question whether an order directing investigation under Section 156(3) of the Code would amount to taking cognizance of the offence. 15. In **Anil Kumar** (supra), the Apex Court held that the word "cognizance" has a wider connotation and not merely confined to the stage of taking cognizance of the offence. It was held that when a Special Judge refers a complaint for investigation under Section 156 of the Code, obviously, he has not taken cognizance of the offence and, therefore, it is a Crl.M.C.No.3008/2021 9 pre-cognizance stage and cannot be equated with post cognizance stage. 16. Thereafter, the Apex Court examined the question whether the requirement of sanction is a pre-condition for ordering investigation under Section 156 of the Code even at a pre-cognizance stage. The Apex Court took notice of the provisions contained in Sections 19(1) and 19(3) of the Act and held that, in the absence of previous sanction, the Special Judge/Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) of the Code. It was held as follows: _"That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C."_ Crl.M.C.No.3008/2021 10 ## 17. In **Narayana Swamy v. State of Karnataka** ( **AIR** **2016 SC 4125** ), one of the questions considered by the Apex Court was whether an order directing further investigation under Section 156(3) of the Code can be passed in relation to public servant in the absence of valid sanction and contrary to the judgment in **Anil Kumar** (supra). Having regard to the ratio of the judgment in **Anil Kumar** (supra), the Apex Court answered the question in the negative, by holding as follows: _“Having regard to the ratio of the aforesaid judgment, we have no hesitation in answering the question of law, as formulated in para 7 above, in the negative. In other words, we hold that an order directing further investigation under Section 156(3) of the Cr.P.C cannot be passed in the absence of valid sanction”._ (emphasis supplied) ## 18. In **Manju Surana v. Sunil Arora: (2018) 5 SCC 557** , the question 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 Crl.M.C.No.3008/2021 11 the Code. The Apex Court referred the above question to be decided by a Larger Bench. 19. 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) would hold the field. 20. The pendency of a reference made by the Apex Court to a larger Bench does not mean that all other proceedings involving the same issue would remain stayed till a decision is rendered in the reference. Till such time as the decision cited at the Bar is not modified or altered in any way, it would continue to hold the field (See **Ashok Sadarangani v. Union of India: AIR 2012 SC 1563** ). 21. In **Maneesh v. State of Kerala : 2016 (1) KHC 96 : 2016 (1) KLT 323** , a learned Single Judge has held that previous sanction is not necessary for ordering investigation in exercise of the power under Section 156(3) of the Code. In the Crl.M.C.No.3008/2021 12 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. ## 22. In **Bhagwant Singh v. Commissioner of Police : AIR 1985 SC 1285** , it has been held as follows: _“Now, when the report forwarded by the officer in charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things : (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses : (1) he may accept the report_ Crl.M.C.No.3008/2021 13 _and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156”._ 23. In the present case, when the final report (closure report or refer report) was filed by the investigating officer, the Special Court disagreed with that report and did not accept it. The Special Court passed Annexure-8 order directing further investigation in the case. No doubt, the Special Court had the power to direct further investigation in the case when the court was not satisfied with the investigation conducted in the case. But, there can be no doubt with regard to the fact that the direction in Annexure-8 order to conduct further investigation was made under Section 156(3) of the Code. 24. In the light of the dictum laid down by the Apex Court in **Anil Kumar** (supra) and **Narayana Swamy** (supra), in the absence of any sanction under Section 19(1) of the Act, the Special Court had no power to pass an order directing further Crl.M.C.No.3008/2021 14 investigation in the case against a public servant. No doubt, the Special Court had the power to direct further investigation but that power could have been exercised by it only if sanction under Section 19(1) of the Act was obtained and produced by the complainant. Annexure-8 order passed by the Special Court cannot be sustained in law in the absence of sanction under Section 19(1) of the Act and it is liable to be set aside. 25. However, the contention of the learned counsel for the petitioner that Annexure-3 F.I.R is invalid in the light of the dictum laid down by the Apex Court in **Anil Kumar** (supra) cannot be accepted. There is no material before this Court to show that Annexure-3 F.I.R was registered by the VACB on the basis of any direction or order passed by the Special Court under Section 156(3) of the Code. The petitioner has not produced copy of any order passed by the Special Court forwarding the complaint under Section 156(3) of the Code to the VACB for registration of the case and conducting investigation. On the other hand, Annexure-3 F.I.R itself would show that it was Crl.M.C.No.3008/2021 15 registered on the basis of the findings made by the VACB in the preliminary enquiry (quick verification) which was conducted by it pursuant to Annexure-2 order passed by the Special Court and not on the basis of any order passed by the Special Court under Section 156(3) of the Code. ## 26. In **Charansingh v. State of Maharashtra : AIR 2021** **SC 1620** , it has been held as follows: _“After the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if, on the basis of the material collected during such enquiry it is found that the complaint is vexatious and/or there is no substance at all in the complaint, the FIR shall not be lodged. However, if the material discloses prima facie a commission of the offence alleged, the FIR will be lodged and the criminal proceedings will be put in motion and the further investigation will be carried out in terms of the Code of Criminal Procedure. Therefore, such a preliminary enquiry would be permissible only to ascertain whether cognizable offence is disclosed or not and only thereafter FIR would be registered. ..... at the stage of registering the first information report, the police officer is not required to be satisfied or convinced that a_ Crl.M.C.No.3008/2021 16 _cognizable offence has been committed. It is enough if the information discloses the commission of a cognizable offence as the information only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law”._ ## 27. In **Lalita Kumari v. Government of U.P : AIR 2014** **SC 187** , it has been categorically held that, if the inquiry discloses the commission of a cognizable offence, the FIR must be registered and that the police officer cannot avoid his duty of registering case if cognizable offence is disclosed. It has also been held that, the scope of 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. 28. Therefore, on conducting preliminary enquiry, if commission of any cognizable offence is disclosed, it is not necessary for the police officer to seek and obtain the permission of the Magistrate or the Court concerned for registration of F.I.R in the matter. Crl.M.C.No.3008/2021 17 29. The discussion above leads to the conclusion that Annexure-3 F.I.R is not liable to be quashed or set aside in the light of the dictum laid down by the Apex Court in **Anil Kumar** (supra). However, Annexure-8 order passed by the Special Court is liable to be set aside. If the Special Court feels that further investigation is required in the matter, it can pass an order to that effect but only after the complainant produces order granting sanction under Section 19(1) of the Act for prosecution of the public servants involved in the case. 30. Consequently, the petition is allowed in part. The prayer for quashing Annexure-3 F.I.R is rejected. Annexure-8 order passed by the Special Court is set aside. The learned Special Judge is directed to pass appropriate orders on Annexure-7 report in accordance with law. It is made clear that this Court has not considered the merits of the findings made in Annexure-7 report or in Annexure-8 order on any factual aspects. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.3008/2021 18 ## **APPENDIX OF CRL.MC 3008/2021** ## **PETITIONER'S ANNEXURES** |Annexure|1|TRUE COPY OF THE COMPLAINT DATED| |---|---|---| |||01/12/2016 FILED BY SRI. BASHEER BEFORE| |||THE ENQUIRY COMMISSIONER AND SPECIAL| |||JUDGE, KOZHIKODE.| |Annexure|2|TRUE COPY OF THE ORDER DATED 09/12/2016| |||PASSED BY THE ENQUIRY COMMISSIONER AND| |||SPECIAL JUDGE, KOZHIKODE IN CMP IN| |||650/2016.| |Annexure|3|COPY OF THE FIRST INFORMATION REPORT| |||DATED 25/01/2017 ALONG WITH THE QUICK| |||VERIFICATION REPORT SUBMITTED BY THE| |||DEPUTY<br>SUPERINTENDENT<br>OF<br>POLICE,| |||VIGILANCE AND ANTI-CORRUPTION BUREAU,| |||KOZHIKODE.| |Annexure|4|TRUE COPY OF THE STATEMENT DATED| |||06/02/2018 FILED BY THE 2ND RESPONDENT| |||IN OP(CRL) 132/2017 BEFORE THIS| |||HONOURABLE COURT.| |Annexure|5|TRUE COPY OF THE REPORT DATED 06/02/2018| |||FILED BY THE 2ND RESPONDENT IN OP(CRL)| |||132/2017 BEFORE THIS HONOURABLE COURT.| |Annexure|6|TRUE COPY OF THE JUDGMENT DATED| |||08/02/2018 IN OP (CRL.) NO.132/2017| |||PASSED BY THIS HONOURABLE COURT.| |Annexure|7|TRUE COPY OF THE FINAL REPORT DATED| |||21/01/2020 IN V.C. NO.3/2017 SUBMITTED| |||BY THE VACB BEFORE THE LEARNED ENQUIRY| |||COMMISSIONER<br>AND<br>SPECIAL<br>JUDGE,| |||KOZHIKODE.| Crl.M.C.No.3008/2021 19 Annexure 8 CERTIFIED COPY OF THE ORDER DATED 30/06/2021 PASSED BY THE LEARNED ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOZHIKODE IN V.C. NO.3/2017. Annexure 9 TRUE COPY OF THE JUDGMENT DATED 01/07/2021 IN CRL. M.C. NO.5365/2013 PASSED BY THIS HONOURABLE COURT. ## **RESPONDENTS' ANNEXURES** NIL TRUE COPY PS TO JUDGE