K.E. Jafar v. Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943** **OP(CRL.) NO. 293 OF 2020** **(AGAINST THE PROCEEDINGS DATED 25.07.2019 IN C.M.P. NO.1089/2018** **IN C.C. NO. 45/2012 BEFORE THE COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM / III ADDITIONAL DISTRICT COURT, KOTTAYAM)** ## **PETITIONER/1ST ACCUSED:** **1 K.E. JAFAR AGED 67 YEARS S/O. IBRAHIM MUSSALIAR, KOCHUPARAMBIL HOUSE, KILIROOR NORTH P.O, THIRUVARPPU, KOTTAYAM DISTRICT, PIN-686 020** **BY ADVS. M.P.MADHAVANKUTTY SHRI. SHIJOY JOHN MATHEW** ## **RESPONDENT/RESPONDENT:** **1 DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTI CORRUPTION BUREAU, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031** **BY ADV. SMT REKHA S., SENIOR GOVERNMENT PLEADER** **THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 21.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(CRL.) NO.293 of 2020 2 ## **JUDGMENT** ## **Dated this the 21[st] day of March, 2022** The petitioner herein stand arrayed as the 3[rd] accused in C.C.No.45/2012 of the Enquiry Commissioner and Special Judge, Kottayam for offences punishable under Sections 13(1)(C) and (d) r/w Section 13(2) of the Prevention of Corruption Act, 1988, Section 409, 468, 471, 177A, 120 B of the Indian Penal Code. The crux of the prosecution allegation is that the petitioner while working as Assistant Sales Man in the petrol bunk of Supplyco, along with two other employees of the bunk abused their official position and committed criminal misconduct by misappropriating a sum of Rs.5,34,120.35 (Rupees Five lakh thirty four thousand one hundred twenty paise thirty five only) during the period of 01.04.2008 to 15.11.2008. It was alleged that, out of the said amount, an amount of Rs.2,70,651.04 (Rupees Two lakh seventy O.P.(CRL.) NO.293 of 2020 3 thousand six hundred fifty one paise four only) was misappropriated by means of value shortage in stock and Rs.2,63,469.31 (Rupees Two lakh sixty three thousand four hundred sixty nine paise thirty one only) by shortage in remittance. Crime was registered and after investigation, final report dated 02.06.2012 was filed. Cognizance was taken thereafter. The petitioner and other accused appeared pursuant to the summons. It seems that charge was framed and thereafter an application for discharge was filed under Section 227 of Cr.P.C. as C.M.P. No.1089/08. The trial court though noted that the application for discharge was filed after the charge was read over, the court below considered the application in spite of noting that petition was not maintainable, being one filed after the charge was framed. Still, it was considered on merits. The dismissal of that application has led to the present original petition. 2. The premise on which the order is assailed is on the short ground that no sanction was sought O.P.(CRL.) NO.293 of 2020 4 before initiating proceedings under Section 19 of the P.C. Act. It was contended by the learned Counsel for the petitioner that though sanction was sought in relation to the other two accused and the copy of the sanction was also produced, no sanction was sought in relation to the petitioner herein. It was also contended that sanction was not sought under Section 197 of Cr.P.C., since IPC offences were also attributed. 3. Heard both sides and examined the records. 4. It seems that the final report was filed on 02.06.2012. Sanction order was passed by the competent authority in relation to the 1[st] and 2[nd] accused on 14.12.2012. Admittedly, no sanction was obtained in relation to the petitioner either under the P.C. Act or under Section 197 of Cr.P.C. However, this was justified by the learned Government Pleader by contending that the petitioner has retired much prior to the submission of the final report. Though the learned Counsel for the petitioner contended that the O.P.(CRL.) NO.293 of 2020 5 petitioner retired on 30.04.2012., the learned Special Government Pleader placed before this Court a copy of the service book of the petitioner which indicates that the petitioner retired on 30.04.2011. Hence, it was pointed out by the learned Government Pleader that even at the time of making request for sanction in relation to accused No.1 and 2, the petitioner had retired. Evidently, the court below has correctly relied on the decision reported in _**Badaruddeen and another v. State of Kerala [2015 KHC 459]**_ to hold that no sanction is required against a person who has ceased to hold office at the time of taking cognizance. It is also true that sanction under Section 197 Cr.P.C. has not been obtained. To contend that in the case at hand, no sanction is required, the learned Special Government Pleader specifically relied on the decisions of the Hon'ble Supreme Court in _**State of Himachal Pradesh v. M.P Gupta [2004 (2) SCC 349], Bholu Ram v. State of Punjab and another [2008 (9) SCC 140]**_ and _**Inspector of Police and**_ O.P.(CRL.) NO.293 of 2020 6 ## _**another v. Battenapatla Venkata Ratnam and**_ _**another [2015 (13) SCC 87]**_ . In all the three decisions referred above, the Hon'ble Supreme Court has specifically held that committing offences punishable the IPC was not an act done in discharge of any public duty attributable to public servant, and for prosecuting public servant for such offences, sanction was not required under Section 197 Cr.P.C. 5. Having considered this, if a person while purporting to exercise his official duty commits any crime, sanction is not required. In _**[2015 (13) SCC 87]**_ at paragraph 11, it was held that the alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue. 6. On this premise, evidently, the sanction under Section 197 of Cr.P.C. was also not required, since specific criminal offences were attributed to the O.P.(CRL.) NO.293 of 2020 7 petitioner. Having considered this, I find no reason to interfere with the impugned order. The order is sustained and the O.P.(Crl.) No.293 of 2020 is dismissed. **Sd/-** **SUNIL THOMAS JUDGE** SKP/21-3 O.P.(CRL.) NO.293 of 2020 8 ## **APPENDIX OF OP(CRL.) 293/2020** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE ACCUSED COPY OF THE FINAL REPORT BEARING NO. 4/2012 DATED 02.06.2012. EXHIBIT P2 TRUE COPY OF THE STATEMENT OF DR. M. BEENA I.A.S , STATE MISSION DIRECTOR. EXHIBIT P3 TRUE COPY OF THE PETITION BEARING C.C. NO. 45 OF 2012 DATED 10.12.2018. EXHIBIT P4 THE TRUE COPY OF THE ORDER DATED 25.07.2019 IN CRL. M.P. NO. 1089/2018 IN C.C. NO. 45/2012.** **RESPONDENTS' EXHIBITS: NIL** ## **TRUE COPY** ## **P.A.TO JUDGE**