Ravi Raj v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 29[TH] DAY OF JANUARY 2024 / 9TH MAGHA, 1945 CRL.MC NO. 11370 OF 2023 ``` ``` AGAINST THE ORDER DATED CMP 387/2023 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM / III ADDITIONAL DISTRICT COURT, KOTTAYAM ``` ## **`PETITIONER/S:`** ``` RAVI RAJ, AGED 42 YEARS S/O RAVEENDRANATHAN NAIR, KIZHAKKETHATTATTU HOUSE, ITHITHANAMKARA, KURICHI VILLAGE, CHANGANASSERY TALUK, KOTTAYAM-, PIN - 686535 BY ADVS. P.MARTIN JOSE M.A.MOHAMMED SIRAJ THOMAS P.KURUVILLA R.GITHESH P.PRIJITH AJAY BEN JOSE S.SREEKUMAR (SR.) SACHIN JACOB AMBAT ANNA LINDA EDEN HARIKRISHNAN S. MANJUNATH MENON ``` ## **`RESPONDENT/S:`** ``` 1THE STATE OF KERALA, REP. BY SPECIAL PUBLIC PROSECUTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, HIGH COURT OF KERALA, ERNAKULAM PIN -, PIN - 682031 2SRI.K.G RAJ MOHAN, AGED 66 YEARS S/O GOPINATHAN NAIR, MANAGER, ITHITHANAM HIGHER SECONDARY SCHOOL MALAKKUNNAM P.O, CHANGANASSERY, KOTTAYAM-, PIN - 686535 3SRI. PRAVEEN KUMAR ``` Crl.M.C. No. 11370 of 2023 ..2.. ``` AGED 50 YEARS S/O DAMODARAN NAIR, SECRETARY, ITHITHANAM HIGHER SECONDARY SCHOOL MALAKKUNNAM P.O, CHANGANASSERY, KOTTAYAM-, PIN - 686535 4SRI. K.P SAJIKUMAR, AGED 57 YEARS S/O PARAMESWARAN NAIR, TREASURER, ITHITHANAM HIGHER SECONDARY SCHOOL MALAKKUNNAM P.O, CHANGANASSERY, KOTTAYAM-, PIN - 686535 5ATHIRA KRISHNA, AGED 32 YEARS TEACHER (SUBJECT BOTANY) ITHITHANAM HIGHER SECONDARY SCHOOL MALAKKUNNAM P.O, CHANGANASSERY, KOTTAYAM-, PIN - 686535 ``` ## **`OTHER PRESENT:`** ``` RAJESH A SPL GP,VIG...REKHA SR PP,RENJITH MARAR,AMICUSCURIAE ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.01.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. No. 11370 of 2023 **==> picture [20 x 9] intentionally omitted <==** ## **K. BABU, J** ## **------------------------------------------------Crl.M.C. No. 11370 of 2023 ------------------------------------------------Dated this the 29[th] day of January, 2024** ## **O R D E R** The challenge in this Crl.M.C. is to the order dated 09.05.2023 passed by the Court of the Enquiry Commissioner and Special Judge, Kottayam, in Crl.M.P.No.387 of 2023. 2. The learned Public Prosecutor takes notice for respondent No.1. Notice to respondent Nos.2 to 5 is dispensed with. The petitioner filed a complaint before the court below alleging offences punishable under Sections 7,8 and 12 of the Prevention of Corruption Act, 1988 and Section 120B of the Indian Penal Code. On receipt of the complaint, the Trial Court passed the following order:- “Heard counsel for complainant and prosecutor. It is alleged that the accused who are the manager and governing body members of an aided school collected Crl.M.C. No. 11370 of 2023 ..4.. bribe from a candidate for appointment as a teacher in the school. The offenes alleged are relatable to a recommendation made or decision taken by a public servant. Hence for proceeding further ground U/s 17A of PC Act is necessary. Produce approval U/s 17A of PC Act. Call on 25/05/2023.” The afore said order is under challenge in this Crl.M.C.. 3. Heard the learned Amicus Curiae Shri. Renjith Marar, Shri. Manjunath Menon, the learned counsel for the petitioner and Shri. A. Rajesh, the Special Government Pleader (Vigilance) appearing for the State. 4. The contention of the petitioner is that, the Court below ought not to have directed to produce approval under Section 17A of the PC Act as the allegations levelled in the complaint are not relatable to any recommendation made or decision taken by a public servant in discharge of his official functions or duties. The learned Amicus Curiae submitted that only when the offence is relatable to any recommendation made or Crl.M.C. No. 11370 of 2023 ..5.. decision taken by a public servant in discharge of his official functions or duties, the application of Section 17A comes in to play. The learned Amicus Curiae and the learned Counsel for the petitioner relied on _**Shankara Bhat and others v. State of Kerala**_ [2021 (5) KHC 248] in support of the contentions. The learned Special Government Pleader also supported this contention raised by the petitioner. The learned Special Government Pleader also relied on _**Jayaprakash v. State of Kerala**_ [2022 (1) KLT 126] wherein _**Shankara Bhat**_ and _**Yaswant Sinha and others v. CBI**_ [(2020) 2 SCC 338] were followed. 5. Section 17A reads thus:- **17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties** .—No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public Crl.M.C. No. 11370 of 2023 ..6.. servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval— (a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government; (b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed: Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person: Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in Crl.M.C. No. 11370 of 2023 ..7.. writing by such authority, be extended by a further period of one month. 6. In terms of Section 17A no Police Officer is permitted to conduct any enquiry or inquiry or investigation into any offence done by a public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public function without previous approval of the authority competent to remove the public servant from his office at the time when the offence was alleged to have been committed. While constructing the scope of Section 17A this Court in _**Shankara Bhat**_ held that prior approval under Section 17A for conducting an enquiry or investigation is required only when the offence alleged is relatable to a decision taken or recommendation made by the public servant. 7. Proviso to Section 17A says that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or Crl.M.C. No. 11370 of 2023 ..8.. attempting to accept any undue advantage for himself or for any other person. The learned Amicus Curiae further submitted that previous approval under Section 17A is applicable only to the Police Officers and therefore, the Court below should not have directed the petitioner or complainant to place an approval under Section 17A of the PC Act. I find substantial force in this submission. The conclusions made above are fortified by the decision of the Apex Court in _**Yaswant Sinha and others v. CBI.**_ In _**Yaswant Sinha and others,**_ the Supreme Court held thus:- “117.In terms of Section 17-A, no police officer is permitted to conduct any enquiry or inquiry or conduct investigation into any offence done by a public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions _without previous approval_ , inter alia, of the authority competent to remove the public servant from his office at the time when the offence was alleged to have been committed. 8. The Court below ought to have applied its mind to the pleadings in the complaint so as to ascertain Crl.M.C. No. 11370 of 2023 ..9.. whether the complaint contained allegations coming within the scope of Section 17A of the Act. It appears that the trial Court has not applied its mind on any of the pleadings in the complaint and in a routine course, directed the complainant to produce approval under Section 17A which was necessarily not warranted. As the learned Amicus Curiae submitted such an approval is required only for the Police Officer to proceed further if at all the allegations come under purview of Section 17A of the Act. 9. The allegations in the complaint preferred by the petitioner are extracted below:- “9. It is submitted that Smt. Valsamma, who worked as HSSA (Botany) at Elamkavu Devaswom Ithithanam Higher Secondary School, which is an aided school, retired on superannuation on 31-05-2021. After her retirement, Respondent Nos. 2 to 4 entered into a criminal conspiracy with Respondent No.5 who is the relative of Respondent No.4 for illegal appointment to the vacant post of HSSA (Botany) as per Kerala Education Rules. Respondent Nos.2 to 4 in pursuance of the criminal conspiracy hatched among themselves with Crl.M.C. No. 11370 of 2023 ..10.. Respondent No.5 decided to appoint the 5[th] respondent to the resulatant post of HSSA Botany after receipt of Rs.60 lakhs as illegal gratification. Later, the Respondent No.2 as a ruse, invited applications from eligible candidates to fill up the vacant post. The interview was conducted on 09.05.2022 and 29 candidates participated. It is pertinent to note that the said interview was scheduled after a delay of one year from the date of retirement. The unnecessary delay in the interview was purposefully made to enable the 5[th] respondent to arrange the bribe amount of Rs.60,00,000/- out of which Rs.55,00,000/- was given before the date of the interview. Hence, the delay was caused purposefully with a dishonest intention to thwart the true purpose of the interview by preventing the appointment of an eligible candidate and giving an illegal appointment to respondent No.5 in return for the bribe received. 10. It is further submitted that in furtherance of a criminal conspiracy hatched among Respndent Nos.2 to 5, they demanded a sum of Rs.60 Lakhs from the respondent No.5 to appoint her as HSSA in the vacancy of Botany Teacher. In pursuance of the criminal conspiracy hatched among respondent 2 to 5 the seat to be filled up as HSSA Botany in “Elamkavu Devaswom Ithithanam Higher Secondary School” was sold to respondent No.5 by respondent No.2 to 4 for Rs.60 Lakhs. Respodent No.5 agreed to pay the bribe amount but sought some more time to arrange the amount. Crl.M.C. No. 11370 of 2023 ..11.. Hence the respondent no.2 purposefully delayed the inverview and appointment to the vacant post of Botany teacher to favour respondent no.5. It is further submitted that respondent no.5 had paid Rs. 55 lakhs out of the total bribe amount of Rs.60 lakhs before the actual date of the interview to respondent no.2. Consequently, the interview conducted was a farce. The aforementioned facts were disclosed by respondent no.2 during the Devaswom General Meeting held on 12.06.2022, and the video pen drive containing the speech is attached herewith. The relevant portion of the transcript of video content is extracted herewith. " . ഒരുതവണപൊതുവിദ്യാഭ്യാസ ഡിറക്ടറെകണ്ടിരുന്നു ജീവൻബാബു സാറിനെ കണ്ടു. അദ്ദേഹം ഇത് പരിഹരിച്ചു തരാമെന പറഞ്ഞിട്ടുണ. അംഗവൈകല്യമുള്ള ആളിന്പ്രമോഷൻ നൽകണമെന ആവശ്യപ്പെട്ടു രാജീവ് ഫയൽ . ഹൈക കോർട്ടിൽ പെറ്റീഷൻ ചെയ്തു നമ്മുടെ റിക്വസ . അനുസരിച്ചുഅയാൾഅത്പിൻവലിച്ചു ആഓർഡർറിപ്പോർടടസൂപ്പർ ചെക്കിന്ഫൈ നൽറിപ്പോർടടആകുമ്പ ോൾമഞ്ജുഎസിന്റെഅംഗീകാരംകിട്ടും എന്നാണ്പ്രതീക്ഷ. ബോട്ടണിടീച്ചർ (ഹയർസെക്കന് ി ) വത്സലടീച്ചർ . കഴിഞ്ഞവര്ഷംറിട്ടയർആയി ആഒഴിവിലേകകസർക്കാരിന്റെഅംഗീകാരം കിട്ടിഅതനുസരിച്ചുമെയ് 9 നുഇന്റർവ്യൂനടത്തി. 29 അപേക്ഷകർ ഉണ്ടായിരുന്നു. 29 അപേക്ഷകർക്കും രജിസ്റ്റർ നോട്ടീസ് അയച്ചു , നിയമാനുസൃതംഇന്റർവ്യൂനടത്തിയതിന്റെഅടിസ്ഥാനത്തിൽ ആതിരകൃഷ്ണ . എന്നപെൺകുട്ടിയെനിയമിക്കുവാൻനമുക്സാധിച്ചു ആവര്ഷംപുതുതായി കേരളത്തിൽ ഇന്റർവ്യൂ നടത്താനോ നിയമിക്കാനോ അംഗീകാരംക . കൊടുക്കുന്നില്ല ആഅവസരത്തിലാണ്നമുക്ഭാഗ്യമാണ്ഈനിയമനം , ഏതാണ 60 കിട്ടിയത് ലക്ഷംരൂപനമുക്അതിൽനിന്നുംസമാഹരിക്കാൻ സാധിച്ചിട്ടുണ. 55 ലക്ഷംരൂപക്യാഷായിഇന്റർവ്യൂന്മുൻപ്തന്നെതരുവാൻ സാധിച്ചു. 2 മാസത്തെകാലാവധിവച്ചുകകൊണ 5 ലക്ഷംരൂപഅടച്ചു Crl.M.C. No. 11370 of 2023 ..12.. . 60 . തീർക്കും അങ്ങനെ ലക്ഷംരൂപകകഒരുനിയമനംനൽകിയിട്ടുണ കമ്മിറ്റിയുടെകൂട്ടായപ്രവർത്തനംആയിരുന്നുഇത്". The original pen drive containing the relevant portion of the video content dated 12.06.2022 is produced herewith and may be marked as Annexure 3. The learned counsel for the petitioner submitted that the allegations in the complaint are not relatable to any recommendation made or decision taken by any public servant in discharge of his official functions or duties. I feel it proper to relegate this contentions to the Trial Court. The order impugned stands set aside. The Court below shall consider the complaint afresh and pass appropriate orders in accordance with law within a period one month from the date of production of a copy of this order. Sd/- **K.BABU, JUDGE** kkj Crl.M.C. No. 11370 of 2023 ..13.. ## **`APPENDIX OF CRL.MC 11370/2023`** ``` PETITIONER ANNEXURES Annexure 1TRUE COPY OF COMPLAINT DATED 29-04- 2023 IN CRL.M.P. NO. 387 OF 2023 OF HON'BLE ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE KOTTAYAM) Annexure 2TRUE COPY OF THE BYLAW OF ITHITHANAM ELAMKAVU DEVASWOM Annexure 3TRUE COPY OF THE PEN DRIVE CONTAINING THE RELEVANT PORTION OF THE VIDEO CONTENT DATED 12-06-2022 ``` ``` Annexure 4TRUE COPY OF COMPLAINT FILED BEFORE THE DIRECTOR OF VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM. Annexure 5CERTIFIED COPY OF ORDER DATED 09-05- 2023 IN CRL.M.P. NO. 387 OF 2023 OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE ( VIGILANCE) , KOTTAYAM ```