Shanavas Pazhoor s/o P.K Mohammed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI THURSDAY, THE 2[ND] DAY OF SEPTEMBER 2021 / 11TH BHADRA, 1943 CRL.REV.PET NO. 1043 OF 2017** **CRIME NO.7/96 OF VACB, KOTTAYAM, Kottayam AGAINST THE ORDER DATED 24.06.2017 IN C.M.P.NO.1014/2017 IN C.C NO.87/2008 OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM** ## **REVISION PETITIONER/ACCUSED NO.9:** **SHANAVAS PAZHOOR S/O.P.K MOHAMMED, PAZHOOR HOUSE, KUMMANAM, KOTTAYAM (FORMER DIRECTOR BOARD MEMBER OF THIRUVARPU VILLAGE SERVICE CO-OP. BANK LTD)** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.D.FEROZE SRI.V.VINAY** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031(CRIME NO. VC 7/96/KTM)** **BY SRI.A.RAJESH, SPL.PUBLIC PROSECUTOR, VACB** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10.08.2021, THE COURT ON 02.09.2021 DELIVERED THE FOLLOWING:** Crl.R.P.No.1043/2017 2 ## **R.NARAYANA PISHARADI, J ************************ Crl.R.P.No.1043 of 2017 ------------------------------------Dated this the 2[nd] day of September, 2021 ------------------------------------------- ## **O R D E R** The petitioner is Accused No.9 in the case C.C.No.87/2008 pending in the Court of the Enquiry Commissioner and Special Judge, Kottayam. 2. The offences alleged against the accused in the above case are punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and also under Sections 409, 468, 471, 477A and 120B of the Indian Penal Code. 3. The first accused in the case was the President of the Thiruvarppu Village Service Co-operative Bank Limited (hereinafter referred to as 'the Bank'). Accused 2 to 7 and 9 were members of the Director Board of the Bank. Accused No.8 was the Secretary of the Bank. Crl.R.P.No.1043/2017 3 4. The prosecution case is as follows: A paddy procurement programme was implemented in the Bank in the year 1995 for the purpose of helping farmers. The accused hatched a conspiracy to misappropriate the money intended for implementing the aforesaid programme. Pursuant to such conspiracy, accused 2 to 7 purchased paddy and produced bogus purchase notes showing purchase of larger quantity of paddy than the actual purchase made. The bogus purchase notes were prepared with the assistance of Accused No.9. Accused 1 and 8 also assisted the other accused in committing the financial irregularities. The accused misappropriated a total amount of Rs.9,52,866.95/-. 5. The case was originally pending in the Court of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur as C.C.No.23/2000. When the trial of the case was in progress before that court, after examination of 11 witnesses by the prosecution as PW1 to PW11, the Public Prosecutor filed an application under Section 321 of the Code of Criminal Procedure, Crl.R.P.No.1043/2017 4 1973 (for short 'the Code') for granting permission to withdraw from the prosecution. The reason for filing such an application was that there was no sanction for prosecution under Section 19(1) of the Act against accused 1 to 7 and 9 who were public servants. Sanction for prosecution had been obtained only against Accused No.8. 6. As per Annexure-I order dated 11.10.2002, the Court of the Enquiry Commissioner and Special Judge, Thrissur allowed the aforesaid application filed by the Public Prosecutor and granted permission to the prosecution to withdraw the case. The operative portion of this order reads as follows: _“In the result the CMP is allowed and the prosecution is permitted to withdraw the case on account of the impropriety in the sanction order obtained, with liberty to file fresh charge and after obtaining proper sanction from the competent authority against the accused. In the present case, the accused shall stand discharged and it is made clear that the order of discharge would not in any way bar initiation of fresh prosecution with proper sanction. Ordered accordingly.”_ Crl.R.P.No.1043/2017 5 7. Thereafter, a fresh charge-sheet against the accused was filed in the Special Court at Thrissur, after obtaining sanction for prosecution against Accused No.8 only. The Special Court took cognizance of the offences on the basis of the fresh charge-sheet and the case was numbered as C.C.No.25/2003 by that court. Subsequently, the case was transferred to the Court of the Enquiry Commissioner and Special Judge, Kottayam and re-numbered as C.C.No.87/2008. 8. Along with two other accused, the petitioner (A9) filed an application for discharge in the Special Court under Section 239 of the Code. As per the order dated 24.06.2017, the Special Court dismissed that application but granted liberty to the accused to raise the contention regarding absence of sanction at the time of the trial of the case. 9. Accused No.9 has filed this revision petition challenging the aforesaid order passed by the Special Court. 10. Heard learned counsel for the petitioner and also the learned Public Prosecutor. Crl.R.P.No.1043/2017 6 11. Learned counsel for the petitioner has contended that, cognizance of the offences taken against the petitioner by the Special Court on the basis of the second charge-sheet is void in the absence of sanction for prosecution against him under Section 19(1) of the Act obtained from the competent authority. 12. Learned Public Prosecutor would submit that the termination of the earlier prosecution against the petitioner, for want of sanction under Section 19(1) of the Act, does not bar fresh prosecution against him without such sanction when he ceased to be a public servant. 13. Section 19(1) of the Act, as it stood before amendment by Act 16 of 2018, provided that, 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 of the authority prescribed under clauses (a) to (c), as the case may be. 14. There is no dispute with regard to the fact that the petitioner was a public servant as defined under Section 2(c) of Crl.R.P.No.1043/2017 7 the Act at the time of commission of the offences alleged against him. 15. The crucial date for determination as to whether sanction is necessary for taking cognizance of the offences within the meaning of Section 19(1) of the Act is the date on which cognizance is taken (See **S.A.Venkataraman v. State : AIR 1958 SC 107** and **Station House Officer v. B.A.Srinivasan : (2020) 2 SCC 153** ). 16. There is no dispute with regard to the fact that the petitioner was a Member of the Director Board of a Co-operative Society which was conducting banking business and that he was a public servant as defined under Section 2(c) of the Act, when the Special Court took cognizance of the offences under the Act against him on the basis of the first charge-sheet. There is also no dispute with regard to the fact that, when the Special Court took cognizance of the offences under the Act against the petitioner on the basis of the second charge-sheet, he was not a public servant. By that time, he had ceased to be a public Crl.R.P.No.1043/2017 8 servant. 17. When the court took cognizance of the offences under the Act, on the basis of the first charge-sheet, there was sanction for prosecution obtained only against Accused No.8. Then, there was no sanction for prosecution against the other accused in the case who were public servants. 18. When the court took cognizance of the offences under the Act on the basis of the second charge-sheet, then also there was sanction for prosecution obtained only against Accused No.8. But, on that date, the petitioner was not a public servant. 19. Learned Public Prosecutor contended that, since the petitioner was not a public servant on the date on which the Special Court took cognizance of the offences under the Act on the basis of the second charge-sheet, no sanction for prosecution against him was necessary and there was no bar under Section 19(1) of the Act to take cognizance of the offences against him at that time. Crl.R.P.No.1043/2017 9 20. True, an accused cannot claim any immunity on the ground of want of sanction under Section 19(1) of the Act, if he ceased to be a public servant on the date when the Court took cognizance of the offence (See **Bhargavan Pillai v. State of Kerala : AIR 2004 SC 2317** ). 21. Cognizance of the offences under the Act taken by the Special Court against the petitioner, on the basis of the first charge-sheet was void in the absence of sanction for prosecution obtained against him. If no court can take cognizance of the offences without a legal sanction, it is obvious that no court can said to be a court of competent jurisdiction to try those offences and any trial held by such court in the absence of such sanction shall be null and void (See **Baij Nath Prasad Tripathi v. State of Bhopal : AIR 1957 SC 494** ). Therefore, fresh prosecution against the petitioner, after obtaining sanction for prosecution against him, would not have been barred. When an accused is discharged due to lack of proper sanction, there is no impediment for filing fresh charge-sheet against him after Crl.R.P.No.1043/2017 10 ## obtaining sanction (See also **State of Mizoram v. C.Sangnghina : AIR 2018 SC 5342** ). 22. However, in the present case, the position is slightly different. Here, cognizance of the offences under the Act taken against the petitioner on the basis of the first charge-sheet was bad in law in the absence of sanction and the trial conducted was null and void. However, the petitioner is again sought to be prosecuted on the basis of a fresh charge-sheet on the same facts, after he ceased to be a public servant, without any sanction, on the ground that no such sanction is necessary since he ceased to be a public servant. ## 23. In **Chittaranjan Das v. State of Orissa : AIR** ## **2011 SC 2893** , the Apex Court has held as follows: _“We are of the opinion that in a case in which sanction sought is refused by the competent authority, while the public servant is in service, he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction for prosecution under the Prevention of Corruption Act is necessary after the retirement of Public Servant._ Crl.R.P.No.1043/2017 11 _Any other view will render the protection illusory. Situation may be different when sanction is refused by the competent authority after the retirement of the public servant as in that case sanction is not at all necessary and any exercise in this regard would be action in futility”._ (emphasis supplied) 24. The same view was reiterated by the Apex Court in the decision in **Rangotha v. State of M.P : (2015) 12 SCC 733** . 25. In the present case, when the Special Court took cognizance of the offences under the Act on the basis of the first charge-sheet, the petitioner was a public servant. The petitioner and the other accused in the case were discharged for want of sanction for prosecution. When the Special Court took cognizance of the offences under the Act on the basis of the second chargesheet, the petitioner had ceased to be a public servant. In the light of the decision of the Apex Court in **Chittaranjan Das** (supra), cognizance of the offences under the Act taken against the petitioner by the Special Court on the basis of the second charge-sheet, after he ceased to be a public servant, is bad in Crl.R.P.No.1043/2017 12 law. If the prosecution on the basis of the second charge-sheet is sustained, it would make the protection under Section 19(1) of the Act illusory. 26. Moreover, in respect of a transaction that took place more than twenty five years ago, the petitioner shall not be compelled to again face the agony of a trial. It is to be remembered that it was after the examination of 11 witnesses by the prosecution that the petitioner was discharged for want of sanction under Section 19(1) of the Act. 27. Consequently, the revision petition is allowed. The impugned order passed by the Special Court, dismissing the application for discharge filed by the petitioner, is set aside. The application for discharge filed by the petitioner is allowed and he is discharged. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.R.P.No.1043/2017 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **ANNEXURE-I COPY OF THE ORDER DATED 11.10.2002 IN CRL.M.P.NO.672/2002 PASSED BY THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR.** **ANNEXURE-A2: COPY OF THE FINAL REPORT IN CRIME NO.VC 7/96/KTM.** **ANNEXURE-III COPY OF DISCHARGE APPLICATION FILED BY THE PETITIONER BEFORE THE COURT BELOW.** ## **RESPONDENTS EXHIBITS: NIL** **TRUE COPY** **P.S TO JUDGE**