K. M. Reghuladharan v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942** **Crl.Rev.Pet.No.1212 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CMP.No.371/17 in C.C.No. 136/2016 ON THE FILES OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KANNUR AT THALASSERY DATED 16.10.2019.** ## **REVISION PETITIONER/ACCUSED:** **K.M.REGHULADHARAN AGED 57 YEARS S/O.SANKARAN NAIR, SUB REGISTRAR, SUB REGISTRAR OFFICE, KANNUR, RESIDING AT KUNHIVEEDU, MUNDAYAD AMSOM, NEAR ELAYAVOOR PANCHAYATH OFFICE, CHOVVA.P.O., KANNUR.** **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENTS/STATE AND COMPLAINANT:** **1 THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, KANNUR670003. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 3 SHAJI AKKARAMMAL, AGED 39 YEARS, S/O.JANARDHANAN, TRIVENI, PODIKUNDU, PALLIKKUNNU.P.O., KANNUR-670004.** ## **SRI A RAJESH SPL PP VACB** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.01.2021, THE COURT ON 01.02.2021 PASSED THE FOLLOWING:** **Crl.R.P.No.1212 of 2019** **2** ## **R. NARAYANA PISHARADI, J** **---------------------------------------------------Crl.R.P.No.1212 of 2019 -----------------------------------------------------** Dated this the 1[st] day of February, 2021 ## **O R D E R** The revision petitioner is the accused in the case C.C.No.136/2016 pending in the Court of the Enquiry Commissioner of Special Judge, Thalassery. 2. The offences alleged against the petitioner are under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act'). 3. The prosecution case is as follows: The petitioner was the Sub Registrar in the Sub Registrar's Office, Kannur. On 11.10.2011 and 08.11.2011, he demanded an amount of Rs.1,000/- as bribe from one Shaji for registration of a gift deed. On 09.11.2011, at 11:25 hours, he demanded and accepted an amount of Rs.1,000/- as bribe from Shaji at the Sub Registrar's Office, Kannur as a motive or reward for doing his official act and thereby he abused his position as a public servant and committed misconduct. **Crl.R.P.No.1212 of 2019** **3** 4. After completing the investigation of the case, final report against the petitioner was filed in the Special Court. The Special Court took cognizance of the offences against the petitioner and on 21.05.2016, framed charge against him for the offences mentioned earlier. 5. After framing the charge against him by the trial court, the petitioner filed an application for discharge under Section 239 of the Code of Criminal Procedure, 1973 (for short 'the Code') in the trial court. 6. As per the order dated 16.10.2019, the trial court dismissed the application for discharge filed by the petitioner. Aggrieved by that order, the petitioner has filed this revision petition. 7. Heard learned counsel for the petitioner and also the learned Public Prosecutor. 8. The petitioner has raised several grounds in the revision petition to challenge the order of the trial court dismissing the application for discharge. But, at the time of hearing, learned counsel for the petitioner has raised only one contention, that is, with regard to the incompetency of the authority who accorded sanction for prosecution. **Crl.R.P.No.1212 of 2019** **4** 9. Learned counsel for the petitioner has pointed out that the Inspector General of Registration has accorded sanction for prosecution against the petitioner. According to the learned counsel, the authority competent to grant sanction for prosecution against the petitioner is the Commissioner and Secretary of the Vigilance Department and not the Inspector General of Registration. It is contended that sanction for prosecution against the petitioner is granted by an authority which is not compentent to grant it. Learned counsel for the petitioner has, therefore, contended that cognizance of the offences taken by the trial court with the previous sanction of an authority, which is incompetent to grant it, is bad in law and a nullity and that the petitioner is entitled to be discharged. 10. _Per contra_ , learned Public Prosecutor has contended that the authority competent to remove the petitioner from his office is the Inspector General of Registration and therefore, the sanction for prosecution granted against the petitioner is in accordance with the provision contained under Section 19(c) of the Act. 11. The petitioner was in service as a Sub Registrar in the Registration Department at the time of commission of the offences alleged against him. There is no dispute with regard to the fact **Crl.R.P.No.1212 of 2019** **5** that he was then a public servant within the meaning of Section 2(c) of the Act. The sanction for prosecution against the petitioner is granted by the Inspector General of Registration. 12. Section 19(1) of the Act (as it stood before the amendment by Act 16 of 2018) read as follows: _"19. Previous sanction necessary for prosecution.-(1) 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,-- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office.”_ 13. The petitioner was not a public servant coming under the purview of clause (a) of Section 19(1) of the Act. He was a public servant who was employed in connection with the affairs of the State. In respect of a public servant employed in connection with affairs of the State, who is not removable from his office save by or with the sanction of the State Government, such Government **Crl.R.P.No.1212 of 2019** **6** shall be the authority to grant sanction for prosecution. But, the petitioner was not a person removable from his office by or with the sanction of the State Government. The petitioner has got no case that he was removable from his office only by or with the sanction of the State Government. Therefore, he was not a public servant coming within clause (b) of Section 19(1) of the Act and the State Government is not the authority competent to grant sanction for prosecution against him. As per Clause (c) of Section 19(1) of the Act, in case of any person, other than a person who comes under the purview of clauses (a) and (b) of Section 19(1), the authority competent to grant sanction for prosecution against him is the authority competent to remove him from his office. There is no dispute raised by the petitioner with regard to the fact that the Inspector General of Registration is the authority compentent to remove him from his office. Therefore, the Inspector General of Registration is the authority competent under clause (c) of Section 19(1) of the Act to grant sanction for prosecution against the petitioner. 14. The contention of the learned counsel for the petitioner is that the Commissioner and Secretary (Vigilance) is the authority competent to grant sanction for prosecution against the petitioner. **Crl.R.P.No.1212 of 2019** **7** This contention is based on the Notification issued by the State Government as G.O.(Ms) No.169/94/GAD dated 23.4.1994 amending the Rules of Business and empowering the Vigilance Department to deal with cases of issuance of orders sanctioning prosecution of public servants under the Code of Criminal Procedure, 1973 and the Prevention of Corruption Act, 1988. 15. The aforesaid amendment of the Rules of Business came into effect on 23.04.1994. The Explanatory Note to the abovementioned Notification states that, as on 23.4.1994, there were no specific Government Orders authorising the Commissioner and Secretary (Vigilance) to issue orders of suspension or sanction for prosecution against the public servants in cases investigated by the Vigilance Department under the provisions of the Prevention of Corruption Act and the relevant provisions of the Indian Penal Code and that the Government decided that this power should be given specifically to the Commissioner and Secretary (Vigilance) and the Notification was intended to achieve that object. The Rules of Business, as amended with effect from 23.4.1994, can be applicable only to cases in which sanction has to be accorded by the State Government under clause (b) of Section 19(1) of the Act. Amendment of the Rules of Business, as per the Notification **Crl.R.P.No.1212 of 2019** ## **8** issued by the State Government as G.O.(Ms) No.169/94/GAD dated 23.4.1994, does not in any manner affect the power of the competent authority under clause (c) of Section 19(1) of the Act. The Rules of Business of the State Government cannot override the provisions contained in Section 19(1) of the Act. 16. The decisions of this Court in **State of Kerala v. Sugathakumar** ( **1999 (1) KLT 443** ) and **Appukuttan Nair v. State of Kerala** ( **2002 (1) KLT 801** ), which have been referred to by the learned counsel for the petitioner, do not lay down any proposition that, after the date 23.04.1994, the Commissioner and Secretary (Vigilance) is the sole authority who is competent to grant sanction for prosecution against a public servant under clause (c) of Section 19(1) of the Act. 17. Learned counsel for the petitioner has also referred to the decision of the Apex Court in **P.A.Mohandas v. State of Kerala** [ **(2003) 9 SCC 504** ] in support of his contention that, after the date 23.04.1994, the Commissioner and Secretary (Vigilance) is the only authority who is competent to grant sanction for prosecution against a public servant who was employed by the State Government. **Crl.R.P.No.1212 of 2019** **9** ## 18. In **Mohandas** (supra), the Apex Court has stated as follows: _“Under Section 19 of the Act no Court can 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 Authority competent to remove the person concerned. In the case in hand, the Secretary (Vigilance) appears to have accorded sanction to prosecute. The appellants case is that the Secretary (Vigilance) was authorised to grant sanction only on 23.4.1994 and there is no order of the State Government making the Secretary (Vigilance) competent to accord sanction prior to the said date. The learned counsel appearing for the State is not in a position to refute the aforesaid contention and, in fact, is not able to produce any document which confers power on the Secretary (Vigilance) to accord sanction prior to 23.4.1994. The sanction in the present case being prior to the aforesaid date, the date on which the sanction appears to have been given, the concerned Authority had no jurisdiction and, therefore, there is an embargo on the court's power to take cognizance for non-compliance of Section 19 of the Act”._ 19. The decision in **Mohandas** (supra) is an authority only for the proposition that, before the date 23.04.1994, the **Crl.R.P.No.1212 of 2019** ## **10** Secretary (Vigilance) was not competent to grant sanction for prosecution against a public servant under Section 19 of the Act. Moreover, the aforesaid decision does not indicate that the Apex Court was dealing with a question of granting sanction under clause (c) of Section 19(1) of the Act. 20. Sub-section (2) of Section 19 of the Act provides that, where for any reason whatsoever any doubt arises as to whether the previous sanction, as required under sub-section (1) should be given by the Central Government or the State Government or any authority, such sanction shall be given by that Government or authority which could have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. In the instant case, the Inspector General of Registration was the authority which could have been competent to remove the petitioner from his office at the time when the offences were alleged to have been committed. Therefore, the order of the trial court taking cognizance of the offences against the petitioner with the previous sanction of the Inspector General of Registration, cannot be found to be invalid or a nullity. The petitioner is not entitled to be discharged on such a ground. **Crl.R.P.No.1212 of 2019** **11** 21. The discussion above leads to the conclusion that there is no sufficient ground to interfere with the impugned order passed by the trial court by invoking the revisional jurisdiction of this Court. Consequently, the revision petition is dismissed. **Sd/R. NARAYANA PISHARADI JUDGE** lsn **Crl.R.P.No.1212 of 2019** **12** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE I** ## **COPY OF THE FINAL REPORT** **ANNEXURE II** **COPY OF SANCTION ORDER EI-25827/11 DATED 25.1.14.** ## **ANNEXURE III** **COPY OF THE NOTIFICATION CONFERRING POWER TO COMMISSIONER AND SECRETARY DATED 23.4.1994.** **TRUE COPY OF THE GIFT DEED DATED 11.10.2011.** **ANNEXURE IV TRUE COPY OF THE GIFT DEED DATED 11.10.2011. ANNEXURE V COPY OF THE CIRCULAR NO.12/65.** **ANNEXURE VI TRUE COPY OF THE ORDER OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THALASSERY, DATED 16.10.2019.** **RESPONDENTS EXHIBITS : NIL** **True Copy** lsn **P.A.To Judge**