Sarala K. v. State of Kerala and Neetha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942 Crl.MC.No.5434 OF 2018** **AGAINST THE ORDER/JUDGMENT IN CC 540/2017 OF CHIEF JUDICIAL MAGISTRATE , KALEPETTA CRIME NO.132/2010 OF Vythiri Police Station , Wayanad** ## **PETITIONER/S:** **SARALA.K AGED 57 YEARS W/O MOHANDAS (LATE) MOHANAM, 6TH MILE, ACHOORAANAM P.O., POZHUTHANA (VIA) WAYANAD DISTRICT, KERALA** **BY ADV. G.SIVASANKAR** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (DY.SP OF POLICE, DISTRICT CRIME BRANCH, WAYANAD) COCHIN 682 031 2 NEETHA D/O.JANAKI, PADMA NIVAS, URUVACHAL P.O., PAZHASSI AMSAM, KARETTA DESOM, MATTANNUR, PIN-670 702.** **R2 BY ADV. T.G.RAJENDRAN** ## **OTHER PRESENT:** ## **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.5434 OF 2018** **2** ## **ALEXANDER THOMAS, J.** **= = = = = = = = = = = = = = = = =** ## **Crl.M.C. No.5434 of 2018** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 23[rd] day of September, 2020 ## **O R D E R** The prayer in the aforecaptioned Crl.M.C filed under Sec.482 of the Cr.P.C. is as follows : _“xxx xxx may kindly be pleased to quash Annexure A3 as against the petitioner, in the interest of justice.”_ 2. Heard Sri.S.Rajeev, learned counsel appearing for the petitioner (Addl.A8), Sri.Saigi Jacob Palatty, learned senior Public Prosecutor appearing for R1-State of Kerala and Sri.T.G.Rajendran, learned counsel appearing for contesting respondent No.2 (lady defacto complainant). 3. The petitioner herein has been subsequently and additionally arrayed as accused No.8 in the impugned Annexure-A3 final report/charge sheet filed in the impugned Annexure-A2 Crime No.132/2010 of Vythiri Police Station, Kalpetta, in which cognizance has been taken and the case is now pending as calendar case C.C.No.540/2017 on the file of the Chief Judicial Magistrate Court, Kalpetta for offences punishable under Secs.420, 464, 465, 468, 471 r/w Sec.34 of the IPC. 4. The brief of the prosecution case is that the subject property was earlier conveyed to R2 by a registered gift deed executed by her mother **Crl.MC.No.5434 OF 2018** **3** and thereupon, the subject property was also mutated in the name of the 2[nd] respondent in the building register/mutation records of the Panchayat concerned. Further case of the 2[nd] respondent in Annexure-A1 private criminal complaint which led to the impugned criminal proceedings is that a cancellation deed was got executed allegedly in the name of R2’s mother, at the instigation of her other siblings, without the knowledge and junction of the 2[nd] respondent, even though she had accepted the gift. Later, pursuant to the said cancellation deed in respect of the said gift deed, an application was submitted by her siblings before the Panchayat Secretary concerned along with a forged consent letter of the 2[nd] respondent seeking for change of ownership of the subject property from the name of the 2[nd] respondent to the names of accused Nos. 1 to 6 (siblings of R2). 5. At the stage of further investigation, the case of the prosecution is that though the address of R2 was easily available in the Panchayat building register, A7 (Panchayat Secretary) and the petitioner herein (A8, who is a section clerk in the Panchayat office) had taken steps to make it appear as if the notice on the said change of ownership application was issued to R2, but not in her address as shown in the Panchayat building register, but care of the address of A3 and that the said notice sent by the Panchayat Secretary was received by A5 impersonating as if she is R2 herein. Further that, the petitioner herein (A8) as the section clerk of the Panchayat office had made entries in the register/records concerned as if **Crl.MC.No.5434 OF 2018** **4** notice was sent to one of the brothers of R2 (one Sri.Jinachandran), when as a matter of fact, the petitioner had not infact sent the said notice to the said Jinachandran and made it appear as if the said notice was sent to him in the records concerned. Thereby, A7 and A8 has also done such acts with the dishonest intention to cause wrongful loss to R2 as well as wrongful gain to accused Nos. 1 to 6 and that the said acts would also amount to making of a false document as envisaged in Sec. 465 and that thereby, even the offence of forgery as per Sec. 468 etc. has also been committed. 6. One of the prime arguments advanced by Sri.S.Rajeev, learned counsel appearing for the petitioner herein (A8) is that it is only in the 2[nd] round of further investigation that efforts have been taken by the prosecution to unnecessarily rope in the petitioner herein, who was only a section clerk and at best, the acts alleged against her can be attributed as errors of judgment of a Government servant and cannot involve any criminal culpability on her. Further that, there are no records produced along with the impugned Annexure-A3 final report/charge sheet and Annexure-A5 memo of evidence attached thereto to show that the petitioner has done the abovesaid specific acts in question and that therefore, the prosecution will not lie. 7. Per contra, Sri.Saigi Jacob Palatty, learned Public Prosecutor has made submissions and submitted that there are sufficient materials in Annexure-A3 final report/charge and in the memo of evidence appended **Crl.MC.No.5434 OF 2018** **5** thereto at Annexure-A5 to rope in the culpability of both A7 as well as the petitioner herein (A8) apart from the criminal culpability of accused Nos. 1 to 6 and that the materials and test for judicially evaluating as to whether charges are liable to be framed in a case like this would depend on the answer to the question as to whether the said materials in final report/charge sheet, if unrebutted would justify the framing of charges and that in the instant case, it cannot be said that the prosecution has failed to bring in sufficient materials in Annexure-A3 final report and Annexure-A5 memo of evidence, so as to make out a case of prosecution as against the petitioner herein (A8) as well. 8. Further, yet another contention has been raised by the counsel for the petitioner that prosecution sanction has been granted by incompetent authority and that the competent authority to grant sanction to prosecute the petitioner, who is a civil servant of the Panchayat is admittedly, the Director of Panchayats, whereas a perusal of Annexure-A4 sanction proceedings would show that admittedly the sanction has been granted by the incumbent holding the post of Senior Superintendent in the office of the Dy.Director of Panchayats and it is sought to be justified on the ground that the said incumbent in the post of the Senior Superintendent was then holding the full additional charge of the post of Dy.Director of Panchayats. In that regard, it is urged by the learned counsel for the petitioner that it is beyond any dispute that though the petitioner was **Crl.MC.No.5434 OF 2018** **6** holding the post of clerk at the time of the alleged incident in the above impugned criminal proceedings, she was later promoted to the post of the UD clerk and she was holding the said post of UD clerk at the time of grant of the impugned Annexure-A4 sanction proceedings dated 19.9.2016. 9. That going by the statutory special rules, framed as per the Kerala Panchayat Sub-ordinate Service Rules, the category in the post of clerk in the Panchayat office is a district level post, for which the appointing authority is the Dy.Director of Panchayats concerned, whereas the post of the UD clerk and Head clerk is classified as State level post and whose, sole appointing authority is the Director of Panchayats and therefore, the sole authority competent to terminate the incumbent holding the post of UD clerk is the Director of Panchayats and that therefore, going by the mandate of Sec.197 of the Cr.P.C. only such an authority who is competent to terminate the service of the incumbent concerned in respect of the post, he or she was holding at the time of grant of sanction alone could consider and take decision on the issue of grant of sanction as envisaged in Sec.197 of the Cr.P.C. 10. That in the instant case, admittedly, Annexure-A4 sanction has been granted by the Director of Panchayats and that in a case like this, even if the Dy.Director of Panchayats were the sanction granting authority, such sanction in respect to prosecute the incumbent in the District level post could have been granted only by the Dy.Director of Panchayats and not by **Crl.MC.No.5434 OF 2018** **7** an incumbent like the Sr.Superintendent, even if she/he is holding the full additional charge of the post of Dy.Director of Panchayats etc. 11. The learned counsel for the petitioner would also point out that the allegations that the petitioner has made any forged document or has committed any forgery is absolutely and factually wrong and false and that the petitioner has not made any note in the official records as if the notice was infact sent to the above said Jinachandran (brother of R2). As a matter of fact, said notice was never sent to him and the allegations to the contrary are absolutely false. 12. Per contra, the counsel for the petitioner would urge that it is now well settled by the decisions of the Apex Court as in _**N.K.Ganguly v. CBI**_ [2015 KHC 4753 (SC)] that the allegation is that the Government servant has committed conspiracy along with the other accused to commit the main substantive offences, then the statutory sanction is mandatory and imperative and that one of the allegations in the present impugned criminal proceedings is that the petitioner has also committed the offence of criminal conspiracy as per Sec.125 of the IPC, along with the other coaccused persons concerned. Further, the petitioner would also contend that a different yardstick has been used by the prosecution agency inasmuch as statutory sanction to prosecute A7 (who was holding the higher post of Panchayat Secretary) has not been obtained. 13. The learned Public Prosecutor appearing for the **Crl.MC.No.5434 OF 2018** **8** official respondents would place reliance on various judgments of the Apex Court as in _**Sambhoo Nath Misra v. State of U.P. and others**_ [1997 (5) SCC 326] (para No.5), _**Rajib Ranjan and others v.R.Vijaykumar**_ [2015 (1) SCC 513] (para Nos. 15 to 18), _**Inspector of Police and others v. Battenapatla Venkata Ratnam and anr.**_ (para Nos. 7 to 12) [2015 (13) SCC 87] (para Nos. 7 to 12), _**SHO, CBI v. B.A.Srinivasan and others**_ [2020 (2) SCC 153] (para Nos. 14 to 17- three judges bench), where it has been held that when the public servant is alleged to have committed offence of fabrication of record or misappropriation of public funds etc. can he be said to have acted in discharge of his official duties and that it is not the official duty of the public servant to fabricate the forged records or to misappropriate the public funds etc. in furtherance or in discharge of his official duties and that in such cases, sanction in terms of Sec.197 of the Cr.P.C. to prosecute such an accused, who may held an official post at the time of the alleged incidents is not mandatory or necessary. Further, the learned Public Prosecutor would also point out that indisputably in this case, cognizance has already been taken by the court below concerned and that it is now reliably learned that charges have also been subsequently framed by the Court. 14. The learned Public Prosecutor would also submit that it has also been held that it is also now well settled that question of issue regarding lack of statutory sanction could be raised by the accused, even at **Crl.MC.No.5434 OF 2018** **9** the time of trial for the decision to be rendered on that point as well by the said trial court concerned. Counsel for the petitioner would urge that as one of the specific offences is that the petitioner, who is a Government servant has committed conspiracy along with other co-accused persons, proper sanction is mandatory. 15. Registry of this Court has now been apprised by the office of the court of the Chief Judicial Magistrate-Kalpetta that charges have been framed by the said court in the instant C.C.No.540/2017 on 20.11.2019. After hearing both sides, this Court is of the considered view that in view of the nature of the facts and circumstances emanating in the present impugned criminal proceedings, proper and precise judicial evaluation may be necessary in this case and therefore, it may not be right and proper for this Court to consider and grant the prayer for quashing the impugned criminal proceedings in this case. As indicated hereinabove, effective and precise judicial evaluation may be necessary and this may be possible not at this stage under Sec.482 of the Cr.P.C., but during the trial. In order to ensure that no prejudice is caused to either sides, it may not be necessary for this Court to enter into the factual niceties and to grapple with various factual aspects in this petition. Hence, liberty is accorded to the petitioner to raise all her contentions in the trial before the trial court concerned. All contentions open to the petitioner are left open to be raised and decided at the time of trial. Further, it is ordered that the Chief Judicial Magistrate, **Crl.MC.No.5434 OF 2018** **10** Kalpetta will take all reasonable endeavours possible in these circumstances to ensure that the trial in respect of calendar case C.C.No. 540/2017 is completed without much delay, preferably within a period of 6 months, at any rate, within an outer time limit of 8 months, from the date of receipt of a certified copy of this order and untrammeled and uninfluenced in any manner, by the observations and findings made by this Court in this petition. The petitioner may produce certified copy of this order before the trial court concerned. With these observations and directions and with the said liberty, the above Criminal Miscellaneous Case will stand finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** SKS **Crl.MC.No.5434 OF 2018** **11** ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**ANNEXURE A1**|**CERTIFIED COPY OF COMPLAINT DATED**| ||**07.05.2010 SUBMITTED BEFORE JFMC, KALPATT.**| |**ANNEXURE A2**|**CERTIFIED COPY OF FIR IN CRIME NO.132/10**| ||**VYTHIRI POLICE STATION, KALPATTA.**| |**ANNEXURE A3**|**CERTIFIED COPY OF FINAL REPORT SUBMITTED**| ||**BEFORE CJM, KALPATTA.**| |**ANNEXURE A4**|**SANCTION FOR PROSECUTION OBTAINED UNDER**| ||**R.I.ACT.**| |**ANNEXURE A5**|**CERTIFIED COPY OF MEMORANDUM OF EVIDENCE**| ||**PRODUCED IN ANNEDURE A3.**| |**ANNEXURE A6**|**CERTIFIED COPY OF STATEMENTS OF WITNESSES.**|