K.N. Ravindran v. Central Bureau of Investigation (CBI) / SPE Kochi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 16TH DAY OF DECEMBER 2016/25TH AGRAHAYANA, 1938** **Crl.Rev.Pet.No. 1332 of 2016 ()** **-------------------------------AGAINST THE ORDER DATED 30.4.2016 IN CMP NO.1128/2010 IN C.C. NO.3/2006 OF THE SPECIAL JUDGE (SPE/CBI)-i, ERNAKULAM** **REVISION PETITIONER/PETITIONER/ACCUSED NO.1: ----------------------------------------------** **K.N.RAVINDRAN HOUSE NO.28/2947, PONNETH TEMPLE ROAD, KADAVANTHRA, KOCHI-682 020.** **BY ADVS.SRI.S.RAMESH BABU (SR.) SRI.IMAM GRIGORIOS KARAT SRI.N.KRISHNA PRASAD** **RESPONDENT/RESPONDENT/COMPLAINANT/& INVESTIGATING AGENCY: ---------------------------------------------------------** **CENTRAL BUREAU OF INVESTIGATION CBI/SPE KOCHI, REPRESENTED BY ITS PROSECUTOR.** **BY SRI.P.CHANDRASEKHARA PILLAI, C.B.I.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **CRL R.P. NO.1332/2016** ## **APPENDIX** ## **PETITIONERS ANNEXURES** |**ANNEXURE A1**|**TRUE COPY OF THE MAHAZAR DTD 1.10.2003**| |---|---| |**ANNEXURE A2**|**TRUE COPY OF THE JUDGMENT DTD 26.11.2009 IN C.C.**| ||**NO.9/2004 (RC NO.24(A)/2003)**| |**ANNEXURE-A3**|**TRUE COPY OF THE ORDER OF SUSPENSION DTD 30.10.2003**| ## **RESPONDENTS ANNEXURES** ## **NIL** **/TRUE COPY/** **VPS PS TO JUDGE** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.R.P. No.1332 of 2016 ----------------------------------------Dated this the 16[th] day of December, 2016** ## **O R D E R** - 1.The revision petitioner is the first accused in C.C. No 3 of 2006 on the file of the Special Judge (CBI/SPE)–I, Ernakulam. The petitioner had preferred Crl.M.P. No. 1128 of 2016 seeking discharge on various grounds. The said application was considered by the learned Special Judge and by order dated 30.4.2016, the prayer was rejected. The same is under challenge. - 2.The prosecution allegation is that the petitioner herein, who is arrayed as the 1[st] accused, was working as a Deputy Commissioner of Customs (Docks) in the Ernakulam Wharf. The accused Nos.3 to 5, who are traders/dealers, are alleged to have imported porcelain tiles from China using the services of the 2[nd] accused, a CRL.R.P 1332/2016 2 shipping agent. The porcelain tiles were mis-declared as Ceramic Tiles in order to evade anti-dumping duty. The specific allegation against the petitioner is that he had demanded and accepted from A2, illegal gratification of Rs.10,000/- other than illegal remuneration as a motive for examination, clearance and release of import consignments. The aforesaid case was registered on the basis of source information and after investigation charge sheet was laid before the jurisdictional Court. - 3.Heard the learned Senior Counsel appearing for the petitioner as well as the learned Standing Counsel appearing for the respondent. - 4.The solitary point raised by the learned Senior Counsel is the Court below had taken cognizance without a proper sanction under section 19 of the Prevention of Corruption Act. According to the learned Counsel, the petitioner herein was the Deputy Commissioner Customs CRL.R.P 1332/2016 3 (Docks). S.19 mandates that no Court shall take cognizance of an offence punishable under S.7, S.10, S.11, S.13 and S.15 alleged to have been committed by a public servant, except with the previous sanction as provided in that section. It is vehemently urged by the learned Senior Counsel that the the learned Special Judge had proceeded on the basis that the petitioner had retired on attaining superannuation on 31.10.2003 and having ceased to be a public servant, there was no impediment in filing the charge sheet on 30.8.2006. It is urged that the finding that the petitioner had retired on superannuation on 31.10.2003 is factually incorrect. Referring to Annexure-A3 order of suspension issued by the Government, it is argued that the petitioner was placed under suspension for the purpose of keeping him in service so as to commence and continue disciplinary action against the petitioner. This aspect of the matter CRL.R.P 1332/2016 4 was not considered by the learned Special Judge, is the submission advanced. The order passed by the learned Special Judge is clearly irregular and illegal and is to be interfered, is the submission. 5.The learned Standing Counsel opposed the submissions of the learned Counsel and it was contended that the petitioner had retired from service on attaining superannuation on 31.10.2003. He has therefore ceased to be a public servant with effect from 1.11.2003 and in that view of the matter, there is no requirement to obtain sanction under section 19 of the Code of Criminal Procedure to prosecute the petitioner. Reliance is placed on the decision of the Apex Court in **State of Kerala V Padmanabhan Nair** [ 1999 CrlJ 3696 ] to supplement his submissions. Though it was undertaken that a statement would be filed to controvert the assertions of the petitioner, the same has not been filed till date. CRL.R.P 1332/2016 5 - 6.I have considered the rival submissions and have gone through the materials on record. 7.S.19 of the Prevention of Corruption Act, 1988 mandates that no Court shall take cognizance of an offence punishable under S.7, S.10, S.11, S.13 and S.15 alleged to have been committed by a public servant, except with the previous sanction as provided in that section. Section 19 does not permit any Court to take cognizance of an offence punishable under S.7, S.10, S.11, S.13 and S.15 of the PC Act, 1988 without previous sanction from the competent authority where the offence has been committed by a public servant, who is holding the office and by misusing or abusing the powers of the office, he has committed the offence. Section 19, thus, provides to every public servant, irrespective of his position in service, protection from frivolous and malicious prosecution. - 8.The learned Special Judge has proceeded on the basis that CRL.R.P 1332/2016 6 the petitioner has retired from service on and from 30.10.2003, on attaining superannuation. However the petitioner relies on Annexure-A3 to contend that he was suspended with immediate effect on 30.10.2003 immediately after registration of the crime and that he is still retained in service. Annexure A3 is extracted below for easy reference. F.No.C-14011/35/2003-Ad.V Government of India Ministry of Finance Department of Revenue Central Board of Excise & Customs *** New Delhi, the 30[th] October, 2003 ORDER No.8/2003 WHEREAS a case against Shri.K.N.Ravindran, Deputy Commissioner of Customs (Docks), Cochin in respect of a criminal offence is under investigation. NOW, THEREFORE, the President, in exercise of powers conferred by clause (b) of sub-rule (1) of Rule 10 of the CCS (CCA) Rules, 1965, hereby places the said Shri.K.N.Ravindran under suspension with immediate effect. It is further ordered that during the period that this order shall remain in force the Headquarters of Shri. K.N.Ravindran, Deputy Commissioner, should be at Cochin and the said Shri.K.N.Ravindran shall not leave the Headquarters without obtaining the previous permission of CRL.R.P 1332/2016 7 ## the undersigned. It is also ordered that during the period of suspension, the said Shri Ravindran will be entitled to draw subsistence allowance at an amount equal to the leave salary which he would have drawn, if he had been on leave on half average pay or half pay and in addition, dearness allowance, if admissible, on the basis of such leave salary. He will also be entitled to draw any other compensatory allowances (excluding transport allowance) admissible from time to time on the basis of pay of which he was in receipt on the date of suspension, subject to the fulfillment of other conditions laid down for the drawl of such allowances. The payment of subsistence allowance shall be subject to the provisions as laid down in sub-rule (2) of FR-53. (By order and in the name of the President) (RAJIV RAI) Deputy Secretary to the Govt. of India To Shri K.N.Ravindran Deputy Commissioner (under suspension) (Through: Commissioner of Customs, Cochin) - 9.The aforesaid inquiry proceedings are still pending and the said fact is undisputed. - 10.The consequences of an order of suspension of a Government Employee was considered by a Constitution Bench decision of the Apex Court in **State of Punjab V Khemi Ram** [AIR 1970 SC 214]. It was held that if CRL.R.P 1332/2016 8 disciplinary action is sought to be taken against a Government servant it must be done before he retires, as provided by the said rule. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to pass an order of suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein. This view was followed by the Full Bench of this Court in **R.P.Nair and Another v. Kerala State Electricity Board and Others** (AIR 1979 Kerala 135). 11.In other words, the intention of the Government in issuing Annexure-A3 order was to suspend the petitioner and to refuse permission to him to retire from service. He is still retained in service and inquiry proceedings has been initiated, which is pending. This aspect of the matter was not considered by the learned Special Judge while CRL.R.P 1332/2016 9 passing the impugned order. As stated earlier, the learned Special Judge has proceeded on the premise that the petitioner had retired from service and therefore sanction under section 19 was not required. 12.It is settled by now that the trial without a proper sanction is a nullity. The statute forbids taking of cognizance by the Court against a public servant except with the previous sanction of an authority competent to grant such sanction in terms of Clauses (a), (b) and (c) to S.19(1). The question regarding validity of such sanction can be raised at any stage of the proceedings. The competence of the Court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid, the Court can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for prosecution in accordance with law. If the trial court CRL.R.P 1332/2016 10 proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non-est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution. ( **Nanjappa V State of Karnataka [** AIR 2015 SC 3060] ) 13.After going through the impugned order it does not appear to me that the learned Special Judge had occasion to consider the implication of Annexure A3 in its proper perspective. The court below has proceeded o the basis that that the petitioner has attained superannuation on 31.10.2003. In that view of the matter, I am of the view that the order of the trial court requires reconsideration. 14.In that view of the matter, I am of the considered view that the impugned order cannot be sustained. The order dated 30.4.2016 in Crl.M.P. No.1128 of 2010 in C.C. No.3 CRL.R.P 1332/2016 11 of 2006 on the file of the Court below is set aside. The matter is remitted back to the learned Special Judge for fresh consideration in accordance with law. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps