Sony Sebastian and others v. Deputy Superintendent of Police (VACB), Kannur and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 26[TH] DAY OF APRIL 2022 / 6TH VAISAKHA, 1944** **OP(CRL.) NO. 21 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CC 2/2019 OF COURT OF ENQUIRY COMMNR. & SPECIAL JUDGE, KANNUR AT THALASSERY** ## **PETITIONER/S:** 1 SONY SEBASTIAN AGED 59 YEARS S/O.SEBASTIAN, PRESIDENT, ALAKKODE RUBBER AND AGRICULTURAL MARKETING CO-OP.SOCIETY, RESIDING AT VADAKKEPONDIKULATH HOUSE, PO VELLA-670 571, TALIPARAMBA TALUK, KANNUR DISTRICT, KERALA. 2 P.M.JOSEPH AGED 73 YEARS S/O.MATHAI, DIRECTOR, ALAKKODE RUBBER AND AGRICULTURAL MARKETING CO-OP. SOCIETY, RESIDING AT PARAVAM PARAMBIL HOUSE, P.O. VELLAD-670 571, TALIPARAMBA TALUK, KANNUR DISTRICT, KERALA. 3 E.P.THOMAS AGED 68 YEARS S/O.POULOSE, DIRECTOR, ALAKKODE RUBBER AND AGRICULTURAL MARKETING CO-OP. SOCIETY, RESIDING AT VAYATHUPARAMBA HOUSE P.O., VELLAD-670 571, NOW RESIDING AT MARYGIRI, POST ALAKKODE-670 571, TALIPARAMBA TALUK, KANNUR DISTRICT, KERALA, TALIPARAMBA TALUK, KANNUR DISTRICT, KERALA. 4 K.RAJAN AGED 68 YEARS S/O.KURIAKOSE, DIRECTOR, ALAKKODE RUBBER AND AGRICULTURAL MARKETING CO-OP. SOCIETY, RESIDING AT KALLARAKKAL HOUSE, P.O.PRARAPOIL, TALIPARAMBA TALUK, KANNUR DISTRICT, KERALA. 5 KAYAKKOOL MAMMU, AGED 76 YEARS S/O.HAMZA HAJI, DIRECTOR, ALAKKODE RUBBER AND AGRICULTURAL MARKETING CO-OP. SOCIETY, RESIDING AT KAYAKKOOL HOUSE, P.O.PRARAPOIL, TALIPARAMBA TALUK, KANNUR DISTRICT, KERALA. BY ADV T.ASAFALI O.P.( Crl.) No.21/2020 & another 2 ## **RESPONDENT/S:** 1 THE DY.SP(VACB) ,KANNUR KANNUR, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. 2 STATE OF KERALA, (DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, KANNUR), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. BY ADV GOVERNMENT PLEADER ## **OTHER PRESENT:** SPL.GP SRI.A RAJESH,PP SMT.K.B SONY THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 5.11.2020, ALONG WITH OP(Crl.).476/2021, THE COURT ON 26/4/2022 DELIVERED THE FOLLOWING: O.P.( Crl.) No.21/2020 & another 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 26[TH] DAY OF APRIL 2022 / 6TH VAISAKHA, 1944** **OP(CRL.) NO. 476 OF 2021** **AGAINST THE ORDER/JUDGMENT IN CC 2/2019 OF COURT OF ENQUIRY COMMNR. & SPECIAL JUDGE, KANNUR AT THALASSERY** ## **PETITIONER/S:** P.A.DEVASIA AGED 58 YEARS S/O.AUGUSTHY, (FORMER SECRETARY, ALAKKODE RUBBER AND AGRICULTURAL MARKETING CO-OPERATIVE SOCIETY), RESIDING AT PALAPPURATH HOUSE, POST PATHANAPPARA 670 581(VIA), ALAKKODE, TALIPARAMBA TALUK, KANNUR DIST. KERALA BY ADVS. T.ASAFALI LALIZA.T.Y. ## **RESPONDENT/S:** 1 THE DEPUTY SUPERINTENDENT OF POLICE (VACB), KANNUR, VACB OFFICE, THAVAKKARA, KANNUR 670 002 2 STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031 THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 15/3/2022 ALONG WITH OP(Crl.).21/2020, THE COURT ON 26/4/2022 DELIVERED THE FOLLOWING: O.P.( Crl.) No.21/2020 & another 4 ## **COMMON JUDGMENT** Accused Nos.1, 2, 3, 6, 9 & 10 in C.C.No.19 pending before the Enquiry Commissioner & Special Judge, Thalassery, arising from V.C.No.5/2001/KNR for offences punishable under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act 1988 and under sections 409 & 420 IPC are the original petitioners. The second accused is the petitioner in O.P.(Crl.).No.476/2021 and others are the petitioners in O.P.(Crl.).No.21/2020. 2. Accused Nos.1 and 2 are the President and the Secretary of the Alakkode Rubber & Agricultural Marketing Co-op. Society. Accused Nos.3 to 10 are the members of the Board of Directors. Accused No.11 was the copra procurer during the relevant period and accused No.12 was his assistant. Accused No.13 was the then Agricultural Assistant of the Krishi Bhavan. The crux of the prosecution allegation was that the copra procurement was entrusted to KERAFED, on the basis of an order of the Government to procure copra from the coconut farmers directly by fixing a support price of Rs.32.50 per kg. Accused Nos.1 to 10 and on their behalf, the second accused Secretary, while procuring copra from the coconut farmers during the period 2000, allegedly colluded with accused Nos.12 and 13 and to obtain pecuniary advantage to accused No.11 made the copra farmers bring their copra to the Society, and by representing that copra offered by them were of inferior quality, persuaded them to sell copra to the 11[th] accused, at his shop at the rate of Rs.23.20, which was less than the support price. It was further alleged that, to facilitate it, accused No.13, by abusing his official position as the agricultural O.P.( Crl.) No.21/2020 & another 5 officer issued from the Krishi Bhavan by making corrections and forged copra yielding certificates by affixing official seal in the printed form and made it available to accused Nos.11 and 12, who in turn used it as genuine and thereby made undue pecuniary advantage to the tune of Rs.13,31,995/-. It was alleged that all the accused thereby committed the offences punishable under the various provisions of the Statute. On the basis of a crime registered as V.C.No.5/2001/KNR), investigation was conducted and after investigation, final report was laid. Cognizance was taken and summons was issued. Accused have approached this court challenging the final report. 3. Heard the learned counsel for the petitioners and the learned Special Government Pleader for Vigilance. 4. The final report is assailed, specifically on the ground that, none of the materials gathered by the investigation reveal any cognizable offence, much less any offence worth investigation. It was vehemently contended that the sanction as required under section 19(1)(c) of the Prevention of Corruption Act 1988 was not obtained before filing of the charge sheet. Though offences under the IPC were also alleged, sanction under section 197 Cr.P.C was also not obtained. 5. Though, extensive arguments advanced on facts by the learned counsel for the petitioner, which were answered by the learned Special Government Pleader, in the light of the legal contention regarding the lack of sanction under section 19(1)( c) advanced by the learned counsel for the petitioners, I am inclined to consider that question initially being a preliminary legal issue. The specific O.P.( Crl.) No.21/2020 & another 6 contention advanced by the learned counsel for the petitioner was that sanction under section 19 (1)(c) was not obtained. The documents produced by the petitioners show that the Director Vigilance and Anti Corruption Bureau in the course of investigation had issued a communication in February 2006 to the Secretary, Alakkode Rubber & Agricultural Marketing Co-operative Society calling upon the Society to grant sanction for the prosecution of the accused. After referring to the details of the crime, it was requested that the records may be placed before the Board of Directors for appreciating the materials collected and to accord sanction for prosecuting the accused. The factual report of the case was also submitted along with other documents. By reply dated 10/4/2007, the Director of Vigilance was informed by the Society that after discussion by the Governing body and obtaining the legal opinion, it was decided not to grant sanction. Accordingly, sanction was not granted by the Board of Directors. 6. Notwithstanding the above, It is seen that the final report has been laid. The final report produced along with the original petition show that there is absolutely no reference regarding sanction. No witness is sought to be examined to establish that sanction was granted. Evidently, it has to be presumed that sanction has not been granted. 7. The learned counsel for the petitioners relied on the decision reported in _**Paul Varghese v. State of Kerala and Another 2007 (2) KHC 400)**_ to project the impact of lack of sanction. In _**Ganguly N.K. v. CBI, Delhi, (2015 KHC 4753)**_ , it was held that, offences were committed by the accused in discharge of their official O.P.( Crl.) No.21/2020 & another 7 duty and in the absence of previous sanction, prosecution proceedings were liable to be quashed. Learned counsel for the petitioner specifically invited the attention of this Court to the judgment of this court in _**Prince Mathew v. State of Kerala and Others (2020(3) KLT 462)**_ , wherein, an exactly identical situation arose. After an elaborate consideration of the legal position involved, rejecting the stand of the prosecution, this Court held that, lack of sanction vitiates the proceedings of the trial court taking cognizance of the offence against the accused, without sanction. Hence, all further proceedings thereon taken against the petitioner by the trial court were quashed. 8. Though the learned special Government Pleader for the Vigilance countering this took a stand that the Board of Directors is not the competent authority to grant sanction, and relied the decision reported in _**Sagar Thomas v. State (2005 KHC 264).**_ I am not inclined to consider it for the time being, since the question as to which is the statutory authority to grant sanction does not arise for consideration. The only question that arises at present is whether sanction was obtained from the competent authority. Further , the Vigilance itself has approached the Board of Directors, for sanction by it. The learned Government Pleader, to support the the prosecution, relied on the decisions reported in _**State of Mizoram v. Dr. C. Sangnghina (AIR 2018 SC 5342**_ ) and the decision of this court in _**Prince Mathew & Others v. State of Kerala & Others (supra).**_ In both the cases, it was held that cognizance taken, in the absence of sanction, was liable to be interfered with. In the former decision, it was affirmed that if the accused was discharged for O.P.( Crl.) No.21/2020 & another 8 lack of sanction, there was no impediment in filing fresh/supplementary chargesheet after obtaining valid sanction. 9. Having considered the entire facts and the legal question involved, I am satisfied that, final report was laid without obtaining sanction from the competent authority under section 19 of PC Act. The final report is accordingly, legally not sustainable and all further proceedings thereon are liable to be quashed. In the result, the original petitions are allowed. The final report in C.C.No.2/2019 which is Ext.P2 in O.P.(Crl.).No.476/2021, stands quashed. However, it is made clear that, that will not stand in the way of the prosecuting agency in laying the final report, if sanction is obtained. It is made clear that, regarding other issues raised, no comment is made by this court and those are left open to be considered at the appropriate stage. Sd/- **SUNIL THOMAS JUDGE** dpk O.P.( Crl.) No.21/2020 & another 9 ## **APPENDIX OF OP(CRL.) 476/2021** PETITIONER EXHIBITS Exhibit P1 CERTIFIED COPY OF THE FIR NO.VC 5/2021 DATED 6.4.2001 OF VACB, KANNUR Exhibit P2 CERTIFIED COPY OF THE FINAL REPORT DATED 14.1.2019 OF VACB, KANNUR Exhibit P3 TRUE COPY OF THE MEMO OF EVIDENCE DATED 14.2.2019 Exhibit P4 TRUE COPY OF THE LETTER DATED 2-2006 NO.C3/VC 5/2001/KNE) 8647/2001 ISSUED BY THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU Exhibit P4(a) TRUE COPY OF THE LETTER DATED 10TH APRIL 2007 SENT TO THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU DECLINING TO ACCORD SANCTION Exhibit P5 TRUE COPY OF THE ORDER OF TAKING COGNIZANCE OF OFFENCE AGAINST HE ACCUSED WHICH WAS MADE BY THE SPECIAL COURT, THALASERRY DATED 21ST JANUARY 2019. Exhibit P6 TRUE COPY OF THE ORDER DATED 28TH JANUARY 2021 MADE IN CRL.M.C. 5604/2019 MADE BY THIS HON'BLE COURT O.P.( Crl.) No.21/2020 & another 10 ## **APPENDIX OF OP(CRL.) 21/2020** PETITIONER EXHIBITS EXHIBIT P1 CERTIFIED COPY OF THE FIR NO.VC 5/2001 DATED 06.04.2001. EXHIBIT P2 CERTIFIED COPY OF THE FINAL REPORT DATED 14.01.2019. EXHIBIT P3 CERTIFIED COPY OF THE MEMO OF EVIDENCE DATED 14.02.2019. EXHIBIT P4 CERTIFIED COPY OF THE ORDER OF THE SPECIAL VIGILANCE COURT, THALASSERRY MADE IN CA NO.176/2019 IN CC NO.2/2019 DATED 1ST DAY OF AUGUST 2019. EXHIBIT P4 A CERTIFIED COPY OF THE COPY APPLICATION BEARING CA NO.176/2019 FILED BEFORE THE SPECIAL VIGILANCE COURT, THALASSERRY. EXHIBIT P5 CERTIFIED COPY OF THE COPRA YIELDING CERTIFICATE ISSUED IN THE NAME OF PRASAD SEBASTIAN (CW-59). EXHIBIT P5A CERTIFIED COPY OF THE COPRA YIELDING CERTIFICATE ISSUED IN THE NAME OF KURUNTHOTTAM ABRAHAM (CW 66). EXHIBIT P5B CERTIFIED COPY OF THE COPRA YIELDING O.P.( Crl.) No.21/2020 & another 11 ||CERTIFICATE ISSUED IN THE NAME OF| |---|---| ||N.P.RAMACHANDRAN (CW 67).| |EXHIBIT P5C|CERTIFIED COPY OF THE COPRA YIELDING| ||CERTIFICATE ISSUED IN THE NAME OF MATHEW| ||JOSEPH (CW 68).| |EXHIBIT P5D|CERTIFIED COPY OF THE COPRA YIELDING| ||CERTIFICATE ISSUED IN THE NAME OF| ||KOCHUPURAYIL MATHEW (CW 71).| |EXHIBIT P6|CERTIFIED COPY OF THE ORDER IN CA NO.181/2019| ||IN CC NO.2/2019 DATED 3RD AUGUST 2019.| |EXHIBIT P6A|CERTIFIED COPY OF THE APPLICATION NO.CA| ||NO.181/2019 IN CC NO.2/2019 DATED 27.07.2019.| |EXHIBIT P7|CERTIFIED COPY OF THE COPRA YIELDING| ||CERTIFICATE DATED 16.08.2000 OF VARGHESE| ||KOCHUPURAYIDATHIL.| |EXHIBIT P7A|CERTIFIED COPY OF THE COPRA YIELDING| ||CERTIFICATE DATED 16.08.2000 OF VARGHESE| ||KOCHUPURAYIDATHIL.| |EXHIBIT P8|TRUE COPY OF THE JUDGMENT DATED 29TH JANUARY| ||MADE IN OP(CRL) NO.202/2016.| |EXHIBIT P9|CERTIFIED COPY OF THE ORDER MADE BY THE| ||SPECIAL COURT, THALASSERRY IN CC NO.02/2019| ||DATED 21ST JANUARY 2019.| O.P.( Crl.) No.21/2020 & another 12 O.P.( Crl.) No.21/2020 & another 13 ## **APPENDIX OF OP(CRL.) 476/2021** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|CERTIFIED COPY OF THE FIR NO.VC 5/2021 DATED| ||6.4.2001 OF VACB, KANNUR| |Exhibit P2|CERTIFIED COPY OF THE FINAL REPORT DATED| ||14.1.2019 OF VACB, KANNUR| |Exhibit P3|TRUE COPY OF THE MEMO OF EVIDENCE DATED| ||14.2.2019| |Exhibit P4|TRUE COPY OF THE LETTER DATED 2-2006 NO.C3/VC| ||5/2001/KNE) 8647/2001 ISSUED BY THE DIRECTOR,| ||VIGILANCE AND ANTI CORRUPTION BUREAU| |Exhibit P4(a)|TRUE COPY OF THE LETTER DATED 10TH APRIL 2007| ||SENT TO THE DIRECTOR, VIGILANCE AND ANTI| ||CORRUPTION BUREAU DECLINING TO ACCORD| ||SANCTION| |Exhibit P5|TRUE COPY OF THE ORDER OF TAKING COGNIZANCE| ||OF OFFENCE AGAINST HE ACCUSED WHICH WAS MADE| ||BY THE SPECIAL COURT, THALASERRY DATED 21ST| ||JANUARY 2019.| |Exhibit P6|TRUE COPY OF THE ORDER DATED 28TH JANUARY| ||2021 MADE IN CRL.M.C. 5604/2019 MADE BY THIS| ||HON'BLE COURT| O.P.( Crl.) No.21/2020 & another 14 ## **APPENDIX OF OP(CRL.) 21/2020** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|CERTIFIED COPY OF THE FIR NO.VC 5/2001 DATED| ||06.04.2001.| |EXHIBIT P2|CERTIFIED COPY OF THE FINAL REPORT DATED| ||14.01.2019.| |EXHIBIT P3|CERTIFIED COPY OF THE MEMO OF EVIDENCE DATED| ||14.02.2019.| |EXHIBIT P4|CERTIFIED COPY OF THE ORDER OF THE SPECIAL| ||VIGILANCE COURT, THALASSERRY MADE IN CA| ||NO.176/2019 IN CC NO.2/2019 DATED 1ST DAY OF| ||AUGUST 2019.| |EXHIBIT P4 A|CERTIFIED COPY OF THE COPY APPLICATION| ||BEARING CA NO.176/2019 FILED BEFORE THE| ||SPECIAL VIGILANCE COURT, THALASSERRY.| |EXHIBIT P5|CERTIFIED COPY OF THE COPRA YIELDING| ||CERTIFICATE ISSUED IN THE NAME OF PRASAD| ||SEBASTIAN (CW-59).| |EXHIBIT P5A|CERTIFIED COPY OF THE COPRA YIELDING| ||CERTIFICATE ISSUED IN THE NAME OF| ||KURUNTHOTTAM ABRAHAM (CW 66).| |EXHIBIT P5B|CERTIFIED COPY OF THE COPRA YIELDING| ||CERTIFICATE ISSUED IN THE NAME OF| ||N.P.RAMACHANDRAN (CW 67).| |EXHIBIT P5C|CERTIFIED COPY OF THE COPRA YIELDING| ||CERTIFICATE ISSUED IN THE NAME OF MATHEW| ||JOSEPH (CW 68).| |EXHIBIT P5D|CERTIFIED COPY OF THE COPRA YIELDING| ||CERTIFICATE ISSUED IN THE NAME OF| ||KOCHUPURAYIL MATHEW (CW 71).| |EXHIBIT P6|CERTIFIED COPY OF THE ORDER IN CA NO.181/2019| ||IN CC NO.2/2019 DATED 3RD AUGUST 2019.| |EXHIBIT P6A|CERTIFIED COPY OF THE APPLICATION NO.CA| O.P.( Crl.) No.21/2020 & another 15 NO.181/2019 IN CC NO.2/2019 DATED 27.07.2019. EXHIBIT P7 CERTIFIED COPY OF THE COPRA YIELDING CERTIFICATE DATED 16.08.2000 OF VARGHESE KOCHUPURAYIDATHIL. EXHIBIT P7A CERTIFIED COPY OF THE COPRA YIELDING CERTIFICATE DATED 16.08.2000 OF VARGHESE KOCHUPURAYIDATHIL. EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 29TH JANUARY MADE IN OP(CRL) NO.202/2016. EXHIBIT P9 CERTIFIED COPY OF THE ORDER MADE BY THE SPECIAL COURT, THALASSERRY IN CC NO.02/2019 DATED 21ST JANUARY 2019.