MANOJ C v. STATE OF KERALA & DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, KASARGODE

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943 CRL.MC NO. 4328 OF 2021** **AGAINST THE PROCEEDINGS IN CC 139/2016 OF COURT OF ENQUIRY COMMNR. & SPECIAL JUDGE, KANNUR AT THALASSERY, KANNUR PETITIONER/ACCUSED:** MANOJ C AGED 42 YEARS S/O. CHANDRANANDAN, PUTHANPARAMBIL HOUSE, KUTHIRAPANTHI, ALAPPUZHA DISTRICT. BY ADV BABU S NAIR ## **RESPONDENTS/STATE & COMPLAINANT:** 1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682031. 2 THE DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTI CORRUPTION BUREAU, KASARGODE, KASARGODE DISTRICT, PIN-671121. SR.PUBLIC PROSECUTOR SMT.REKHA. S THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.09.2021, THE COURT ON 24.09.2021 DELIVERED THE FOLLOWING: Crl.M.C.No.4328/2021 2 ## **R.NARAYANA PISHARADI, J ************************ Crl.M.C.No.4328 of 2021 ------------------------------------Dated this the 24[th] day of September, 2021 ------------------------------------------- ## **O R D E R** The petitioner is the accused in the case C.C.No.139/2016 pending in the Court of the Enquiry Commissioner and Special Judge, Thalassery. 2. The prosecution case is that, the petitioner, while employed as an electricity worker in the section office of the Kerala State Electricity Board (KSEB) at Nellikunnu in Kasaragod District, demanded and obtained a total amount of Rs.4,500/- as illegal gratification from one V.V.Sabu, for not reporting the irregularities found in the electric meter installed in his house and thereby the petitioner committed the offences punishable under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 (for short 'the Act'). Crl.M.C.No.4328/2021 3 3. The Executive Engineer of the Electrical Division, Kasaragod, who had issued Annexure-B order granting sanction for prosecution against the petitioner, was examined as PW14 by the prosecution during the trial of the case. Then, he gave evidence that it was the Chief Engineer who had power to remove the petitioner from service. On the basis of this statement made by PW14 in the trial court, the petitioner has filed this application under Section 482 Cr.P.C for quashing the entire proceedings in the case pending against him in the trial court. 4. Heard learned counsel for the petitioner and the learned Public Prosecutor. 5. Learned counsel for the petitioner has contended that, the entire proceedings against the petitioner in the trial court are non est in the eye of law, for the reason that cognizance of the offences was taken by the trial court without sanction for prosecution against the petitioner granted by the competent authority. It is also contended that, the order granting sanction for prosecution against the petitioner, which is dated 13.03.2014 Crl.M.C.No.4328/2021 4 issued by the Executive Engineer, is seen attested by the Legal Advisor of the Vigilance with the date 05.10.2013 and therefore, it is evident that the sanction order was issued by the Executive Engineer without any application of mind, only by filling up the blanks in the draft sanction order forwarded to him by the investigating officer. 6. Section 19(1) of the Act (as it stood before the amendment by Act 16 of 2018) reads 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."_ Crl.M.C.No.4328/2021 5 7. The petitioner was an employee of the KSEB at the time of commission of the offences alleged against him. Therefore, as per Clause (c) of Section 19(1) of the Act, the authority competent to grant sanction for prosecution against him is the authority competent to remove him from his office. 8. In the instant case, the order granting sanction for prosecution against the petitioner was issued by the Executive Engineer. Annexure-C is the copy of the deposition of the Executive Engineer, who was examined as PW14 by the prosecution during the trial of the case. It shows that, he had stated in examination-in-chief that he had power, at the time of issuing the order granting sanction, to remove the petitioner from service. However, on cross-examination, he has deposed that it is the Chief Engineer who has got authority to remove an employee of the KSEB from service. Again, in re-examination, he has stated that, it is the Deputy Chief Engineer who has got power to appoint and remove from service the electricity workers. Crl.M.C.No.4328/2021 6 9. It is stated in the present petition that, the Public Prosecutor had filed application before the trial court for recalling and re-examining the Executive Engineer (PW14) and the aforesaid application was allowed by the trial court and PW14 was recalled and re-examined. However, the petitioner has not produced copy of the deposition made by PW14 on such examination after recalling him. 10. Whatever be the nature of the evidence given by a witness, at first, it is for the trial court to appreciate the evidence given by the witness before it and to decide the questions of law and facts based on such evidence. The question whether sanction was required for prosecution against the petitioner and if sanction was necessary, whether it was issued by an authority competent to grant it is a matter to be decided by the trial court. It is not for this Court to appreciate the evidence given by a witness before the trial court even before completing the trial of the case and take a decision in that regard. 11. Annexure-B order issued by the Executive Engineer, granting sanction for prosecution against the petitioner, is dated Crl.M.C.No.4328/2021 7 13.03.2014. However, it is seen attested by the Legal Advisor of the Vigilance with the date 05.10.2013. The effect of this inconsistency or irregularity on the validity of the order granting sanction for prosecution against the petitioner is a matter to be decided by the trial court. 12. It is stated in paragraph 5 of the present petition (Crl.M.C) that, the petitioner apprehends that the trial court has got pre-conceived notion and that the question of sanction will not be considered by the court below. There is no material to show that this apprehension entertained by the petitioner has got any reasonable basis. 13. Section 19(3)(a) of the Act states that, no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. Section 19(4) of the Act states that, in determining under sub-section (3) whether the absence of, or any error, Crl.M.C.No.4328/2021 8 omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. The Explanation (a) to this provision states that, error includes competency of the authority to grant sanction. 14. In **Parkash Singh Badal v. State of Punjab : AIR 2007 SC 1274** , the Supreme Court has held as follows: _“The effect of sub-section (3) and (4) of Section 19 of the Act are of considerable significance. In sub-section (3) the stress is on 'failure of justice' and that too 'in the opinion of the Court'. In subsection (4), the stress is on raising the plea at the appropriate time. Significantly, the 'failure of justice' is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is not considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to root of jurisdiction as observed in para 95 of the Narasimha Rao's case (supra)”._ Crl.M.C.No.4328/2021 9 ## 15. In **Director, CBI v. Ashok Kumar Aswal : (2015) 16** ## **SCC 163** , the Supreme Court has held as follows: _“All the above apart, time and again, this Court has laid down that the validity of a sanction order, if one exists, has to be tested on the touchstone of the prejudice to the accused which is essentially a question of fact and, therefore, should be left to be determined in the course of the trial and not in the exercise of jurisdiction either under Section 482 of the Code of Criminal Procedure, 1973 or in a proceeding under Article 226/227 of the Constitution”._ (emphasis supplied). 16. Consequently, the Crl.M.C is dismissed. The petitioner is at liberty to raise before the trial court the question of validity of sanction for prosecution granted against him, at the appropriate stage. ## (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.4328/2021 10 ## **APPENDIX OF CRL.MC 4328/2021** ## PETITIONER'S ANNEXURES |Annexure A|TRUE COPY OF THE COURT CHARGE IN| |---|---| ||C.C.NO.139/2016<br>OF<br>THE<br>ENQUIRY| ||COMMISSIONER<br>AND<br>SPECIAL<br>JUDGE,| ||THALASSERY.| |Annexure B|TRUE COPY OF ORDER NO.324 DATED| ||13.3.2014 OF THE EXECUTIVE ENGINEER,| ||ELECTRICAL DIVISION, KASARGODE.| |Annexure C|TRUE COPY OF THE DEPOSITION OF PW14 IN| ||C.C.NO.139/2016<br>OF<br>THE<br>ENQUIRY| ||COMMISSIONER<br>AND<br>SPECIAL<br>JUDGE,| ||THALASSERY.| |Annexure D|TRUE COPY OF THE APPLICATION FILED BY| ||THE PUBLIC PROSECUTOR BEFORE THE COURT| ||OF ENQUIRY COMMISSIONER AND SPECIAL| ||JUDGE, THALASSERY IN C.C.NO.139/16 DATED| ||22.2.21.| |Annexure E|TRUE COPY OF THE COUNTER FILED BY THE| ||PETITIONER<br>AGAINST<br>ANNEXURE<br>D| ||APPLICATION OF THE PUBLIC PROSECUTOR,| ||DATED 15.3.2021.| |RESPONDENTS'<br>ANNEXURES|NIL| TRUE COPY PS TO JUDGE