P.S. Devassya v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 CRL.A.No. 1054 of 2001() -----------------------CC.12/1997 of ENQUIRY COMMR. & SPL.JUDGE, KOZHIKODE (VC 9/94 OF VACB, PALAKKAD ) .................... APPELLANT(S): -------------- P.S.DEVASSYA, S/O. SOURIAR, 'PULARI' XXII/4999/VENNAKKARA, PALAKKAD, UPPER DIVISION CLERK, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. BY ADV. SRI.N.UNNIKRISHNAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, PALAKKAD. BY PUBLIC PROSECUTOR S.T. LAKSHMI RANI K.L. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ---------------------------------------------CRL.A. No.1054 OF 2001 ---------------------------------------------Dated, 28[th] November, 2008 ## JUDGMENT The appellant is the accused in C.C.No.12/1997 on the file of the Enquiry Commissioner and Special Judge, Kozhikode, which is a case instituted upon a complaint preferred by the 2[nd] respondent/complainant, for prosecuting the appellant for the offences punishable under Section 7 and 13(1) (d) read with section 13(2) of the Prevention of Corruption Act and Section 420 of the Indian Penal Code, on the basis of a direction, given by the Judicial First Class Magistrate-I, Perinthalmanna, while the said court was considering C.C.No.231/92 for an offence under section 138 of the Negotiable Instruments Act. By the impugned judgment dated 29.9.2001, the trial court convicted the accused/appellant under section 13(2) read with 13(1)(d) of the Prevention of Corruption Act (for short `the Act only) and Section 420 of IPC and accordingly, sentenced him to undergo rigorous imprisonment for two years each for the said offences. He was acquitted of the offence charged under section 7 of the Act. 2. The prosecution case can be summarised as follows: The accused was an Upper Division Clerk, and PW6 was the Senior CRL.A. 1054/01. ## **-:2:-** Superintendent in the office of the Deputy Director of Education, Palakkad, during March/April, 1992. PW4 was then working in that office and PW5 in a High School at Mathur. Both of them were working as Peons. According to the prosecution, the Vigilance Unit, Palakkad, conducted a preliminary enquiry, presumably on source information, that the accused with the assistances and connivance of the above officers, had abused his official position and defrauded one K.P. Velappan (PW1), a retired primary school Teacher, of a sum of Rs.40,000/- with a false promise of securing a seat for his daughter for the T.T.C, course under the management quota. According to the prosecution, the materials collected disclosed a prima facie case. Accordingly PW9, Dy.S.P, Vigilance and Anti Corruption Bureau, Palakkad registered the crime as V.C.No.9/94 of VACB, Palakkad as per Ext.P6 FIR against the accused and three others for the offences under sections 7 and 13(1)(d) read with Sec.13(2) of the Act 1988 and Sec.34 of IPC. According to the prosecution, during the investigation conducted by PW9, it disclosed that the accused alone committed the offence and he had subsequently issued a cheque to PW1 for a sum of Rs.40,000/- which was dishonoured and consequently the prosecution for the offence under section 138 of the N.I.Act was launched which resulted in his conviction. Thus PW8, the CRL.A. 1054/01. ## **-:3:-** successor of PW9, after obtaining sanction for prosecuting the accused , laid final report and charged for the offences under sections 7 and 13(1)(d) read with Sec.13(2) of the Act and under section 420 of the IPC. On the basis of the above charge and materials, a formal charge was framed against the accused for the said offences to which he pleaded not guilty which resulted in the further trial during which PWs 1 to 9 were examined and Exts.P1 to P6 were marked. After the prosecution evidence, the accused was questioned under section 313 of Cr.P.C. during which, the incriminating circumstances which emerged during the prosecution evidence, were put to the accused and he denied the same. It is the further cases of the accused that the amount was actually collected from PW1 by PWs 4, 5 and 6 who are accused Nos. 2 to 4 in the FIR, on agreeing to refund, if admission was not secured. PW6 who sought his assistance for obtaining admission in fact spelled out the promise and collected the sum. However, admission was not materialised. Consequently, it was demanded for the refund of the amount and thus PWs 4 to 6 influenced and prevailed upon him to issue a cheque, merely as a document. Thus according to the accused, PW6 who obtained the cheque, later, filled up the same and handed over to PW1 and based upon such document, the prosecution under CRL.A. 1054/01. ## **-:4:-** section 138 of the Act was launched against him and it resulted in his conviction and sentence and the same was challenged finally before this Court. Thus, according to the accused, on the said allegations he has already been prosecuted which resulted in his conviction, and therefore, the second prosecution is unwarranted. It is also his defence that even if the entire facts involved in this case is admitted as true, what remains is only a civil liability and no prosecution will lie. On the basis of the rival contentions and pleadings, the trial court formulated seven points for its consideration among which the first issue is whether there is a valid sanction for prosecuting the accused/appellant, public servant, for the offence alleged. As per the impugned judgment, the trial court entered into finding under Points Nos.1, 2, 3 and 5 in favour of the prosecution, while finding under point No.4 is against the prosecution and in favour of the accused. It is the above finding and conviction are challenged in this appeal. 3. I have heard Sri N.Unnikrishnan, the learned counsel appearing the the appellant and also Smt. K.L.Lakshmi Rani, the learned Public Prosecutor. 4. The learned counsel for the appellant vehemently argued that the entire prosecution and the trial are vitiated since no statutory sanction was obtained by the prosecution and for that reason, CRL.A. 1054/01. ## **-:5:-** cognizance taken by the court below itself was illegal and consequently the court has no jurisdiction to proceed with the trial. Therefore, it is the case of the counsel that in the absence of proper sanction, the court has no jurisdiction to proceed with the trial and therefore, the consequent finding and judgment are liable to be set aside. He placed reliance upon the judgment of the Apex Court reported in **Ram Kumar v. State of Haryana** (AIR 1987 SC 735). 5. On the other hand, the learned Public Prosecutor submitted that the trial is over and there is a finding on merit by a competent court and therefore, merely for the reason that no valid sanction was obtained, the judgment cannot be interfered with and the conviction and sentence cannot be set aside. In support of the above contention she placed reliance upon the decision of a Division Bench of this court in **Krishna Iyer v. State of Kerala** (2005 (1) KLT 391) and also the decision of the Apex Court in **Central Bureau of Investigaton V.K. Seghal** (1999 (8) SCC 501). 6. I have carefully considered the contentions advanced by both the counsel for the appellant as well as the learned Public Prosecutor. Section 19(1) of the P.C Act says that no court shall take cognizance of an offence punishable under sections 7,10, 11, 13 CRL.A. 1054/01. ## **-:6:-** and 15 alleged to have been committed by a public servant, except with the previous sanction. Therefore, the learned counsel submitted that unless previous sanction is obtained by the prosecution and produced before the court, the court cannot take cognizance upon such complaint. In this juncture it is relevant to note subsection 3 of Section 19 which reads as follows: “(3) Not withstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), - (a) 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; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; ( c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings” In this juncture, it is also relevant to note sub-section 4 Section 19 which reads as follows: CRL.A. 1054/01. ## **-:7:-** “(4) In determining under sub-section (3) whether the absence of, or any error, 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. Explanation. - for the purposes of this section.- (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature”. Going by the impugned judgment it can be seen that the accused appellant had taken the objection under section 19(1) of the Act at the earliest and thus it resulted in formulating the first issue by the court below and considered the case of the prosecution. After considering the objection, the trial court has found that the challenge against the competency of the witness to accord sanction for prosecution of the accused, and thus impeaching the validity of Ext.P5 order is found to be devoid of any merit. According to the CRL.A. 1054/01. ## **-:8:-** court below, Ext.P5 order would also disclose that sanction was granted after examining the case records and being satisfied with the facts presented that prosecution was essential. The learned counsel submitted that the above finding is absolutely unfounded and arbitrary. 7. From the proceedings of this Court it appears that another learned Judge of this Court granted time to the learned Public Prosecutor to look into the provisions and the relevant rules to show that the Deputy Director of Education is competent to remove the appellant from his office, as otherwise Ext.P5 sanction order issued by PW3 to prosecute the appellant will be invalid. Subsequently, on 29.9.2008, and on 21.10.2008 time was sought by the prosecutor for getting instruction. Today, when the matter was taken for hearing, the learned Public Prosecutor made available to me a written instruction given by the Deputy Director of Education, Palakkad in this case. As per the letter No.A5/25695/08 dated 13.10.08, the Deputy Director of Education, Palakkad while addressing the Advocate General, Ernakulam, reported that the appellant was appointed by the District Authorities as L.D.Clerk as advised by the District K.P.S.C and he was promoted as U.D.Clerk as per the Direction of Public Instruction, Thiruvananthapuram who is the State Head of the Department. CRL.A. 1054/01. ## **-:9:-** (emphasis supplied). It is also reported that, consequent on his promotion he was allowed to continue in the parent District i.e. there was no fresh promotion posting. In the above written instruction, Rule 73 of Manual of Disciplinary proceedings is quoted which runs as follows: “A person who was appointed by, say the Inspector General of Police, can be removed or dismissed from service only by the Inspector General of Police or by a superior authority even though the power of appointment, dismissal or removal from service have been delegated to a lower authority say, the Superintendent of Police”. Thus on the basis of the above, Deputy Director of Education reported that the appointing authority of the appellant is the Deputy Director of Education, Palakkad, who is the competent authority to grant permission to prosecute him. It is also stated in the said report that the Director of Vigilance Investigation by his letter No.BIC (Cr.9/94/P 23866/94 dated 30.1.96 has directed the Deputy Director of Education, Palakkad, to accord necessary statutory sanction as contemplated in Section 6(1) of the Prevention of Corruption Act. 8. The appellant by filing Crl.M.A. No.1219/2008 produced two documents among which Annexure.I is the proceedings of the Director of Public Instruction, Kerala, of which serial No.57 referred is about the appellant. On the basis of the above proceedings, it is CRL.A. 1054/01. **-:10:-** the case of the appellant that, only the Director of Public Instruction, Kerala can accord sanction for prosecution against the appellant. No government order, letter or any other proceedings furnished or produced by the learned Public Prosecutor, apart from the written instruction of the Deputy Director of Education, Palakkad mentioned above, to show that the Deputy Director is the competent authority to issue sanction in terms of Section 19(1) of the P.C. Act to prosecute the appellant/accused. From the written instruction of the Deputy Director, it is crystal clear that the Director of Public Instruction, Kerala is the Authority who effected promotion of the appellant to the post of U.D.Clerk and appointed him. Annexure-I document, which is beyond dispute, speaks about the appointment. Absolutely there is no material or document to show that the Director of Public Instruction had then delegated his powers of disciplinary proceedings and authority to impose penalty or punishment, to the Deputy Director of Education, Palakkad. Therefore, the finding of the trial court that the Deputy Director of Education, Palakkad had authority to issue sanction under section 19 (1), is liable to be set aside. 9. As far as the prosecution is concerned, under the provisions of the P.C.Act, sanction under section 19 is an essential requirement CRL.A. 1054/01. **-:11:-** for prosecution otherwise the court will not get jurisdiction to take cognizance upon such complaint. Section 19 is incorporated with a view to prevent unnecessary and frivolous complaint against the government servants and to save them from unnecessary harassment and from dragging into the court for mala fide and frivolous proceedings. In the present case, from the allegation, it appears to me that, had a competent authority considered the allegation for the purpose of granting sanction, the result would have been a different one. It is borne out from the records that in fact, the basis for the prosecution is originated from the observation or proceedings issued by the Magistrate court where the accused was forced to face the prosecution for the offence under section 138 of the N.I.Act, and really the prosecution was not originated at the instance of any competent departmental authorities. Therefore, in the above facts and circumstances, I am of the view that the absence of a valid sanction from a competent authority, resulted in miscarriage of justice and it caused and resulted high prejudice to the interest of the appellant/accused and therefore, the trial itself is vitiated and consequently the judgment under appeal is liable to be set aside. In the result, this appeal is allowed. The judgment of the trial court is set aside. Consequently, the appellant is discharged from CRL.A. 1054/01. ## **-:12:-** the offences levelled against him and if the 2[nd] respondent/complainant wants to proceed against the accused, he can do it in accordance with law and procedure after obtaining necessary proper and valid sanction. ## **V.K.MOHANAN, JUDGE** kvm/- CRL.A. 1054/01. ## **-:13:-** V.K.MOHANAN, J. No.A.No.1054/2001 Judgment Dated:28.11.2008