Ajas M.M vs State Of Kerala And Ors

The petitioner is the sixth accused in the case registered as V.C.No.4/2018 by the Vigilance and Anti-Corruption Bureau (VACB), Kozhikode.

The third respondent filed Ext.P7 complaint in the Court of the Enquiry Commissioner and Special Judge, Kozhikode against six persons, including

the petitioner. The offences allegedly committed by the accused are not mentioned in Ext.P7 complaint with specific reference to the penal provisions.

Accused 1 to 4 were persons who were working as Geologist in the Mining and Geology Office, Kozhikode. The fifth accused was the Director of

Mining and Geology. The petitioner, the sixth accused in the case, is a private person. He is the Managing Partner of the firm M/s.Poonoorpoyil

Granites.

It is not necessary here to narrate in detail the allegations contained in Ext.P7 complaint. Suffice it to state that the crux of the allegations in the

complaint is that accused 1 to 5 had entered into a criminal conspiracy with the sixth accused and pursuant to such conspiracy, they had allowed the

sixth accused to extract granite stones excess in quantity from excess area of land in violation of the terms of the lease granted to him.

On receiving the complaint, the Special Court forwarded it to the Dy.S.P, VACB, Kozhikode for quick verification and report. The Inspector of

Police, VACB, who was authorised by the Dy.S.P to conduct the preliminary enquiry, conducted the enquiry and filed Ext.P8 report, which only

contained recommendation of departmental action against T.Mohanan (A1), the Senior Geologist.

The learned Special Judge considered the preliminary enquiry report and the allegations in the complaint and came to the conclusion that the

available materials were, prima facie, sufficient to presume commission of an offence under Section 13(1)(d) read with 13(2) of the Prevention of

Corruption Act (for short 'the Act') by the officers of the Geology Department and a detailed investigation is necessary in the case. Accordingly, the

learned Special Judge passed Ext.P9 order, forwarding the complaint to the Dy.S.P, VACB, Kozhikode under Section 156(3) of the Code of Criminal

Procedure, 1973 (for short 'the Code') for investigation.

Accordingly, Ext.P10 F.I.R was registered against accused 1 to 6 by the VACB, Kozhikode under Section 13(1)(d) read with 13(2) of the Act.

This original petition is filed under Article 227 of the Constitution of India by the petitioner seeking the relief of quashing Ext.P7 complaint, Ext.P9

order and Ext.P10 F.I.R.

Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel for the third respondent.

All persons arrayed as accused in the complaint, except the petitioner, are public servants. On receiving the complaint and after obtaining the

preliminary enquiry report, the learned Special Judge could not have forwarded the complaint under Section 156(3) of the Code for investigation, in the

absence of any sanction under Section 19(1) of the Act obtained by the complainant.

Section 19(1) of the Act (as it stood before the 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 competent

authority.

In Anil Kumar v. Aiyappa : (2013) 10 SCC 705, the Apex Court has held as follows:

When a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C, obviously, he has not taken cognizance of the offence and,

therefore, it is a pre-cognizance stage and cannot be equated with post cognizance stage. ....... We may now examine whether, in the above

mentioned legal situation, the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) Cr.P.C even at a pre-

cognizance stage. ...... Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the

Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C"".

Having regard to the ratio of the judgment in Anil Kumar (supra), in Narayana Swamy v. State of Karnataka (AIR 2016 SC 4125), the Apex

Court held that an order directing further investigation under Section 156(3) of the Code cannot be passed in the absence of valid sanction under

Section 19(1) of the Act.

In Manju Surana v. Sunil Arora : (2018) 5 SCC 557, the question that was considered was whether prior sanction for prosecution against a public

servant was required before setting in motion even the investigative process under Section 156(3) of the Code. The Apex Court referred the question

to be decided by a Larger Bench.

A Division Bench of this Court, in Muhammed v. State of Kerala : 2019 (1) KHC 239: 2019 (1) KLT 156, has held that until a final decision is

taken in the reference in Manju Surana (supra), the dictum laid down in Anil Kumar (supra) would hold the field.

Therefore, as per the law as it stood at the time when the learned Special Judge passed Ext.P9 order and as it stands now, a complaint filed

against a public servant alleging commission of an offence specified in Section 19(1) of the Act cannot be forwarded by the court under Section

156(3) of the Code for investigation in the absence of sanction under Section 19(1) of the Act obtained by the complainant.

In Ext.P9 order, the learned Special Judge has relied upon the decision of this Court in Maneesh v. State of Kerala : 2016 (1) KHC 96 : 2016 (1)

KLT 323 and observed that previous sanction is not necessary for ordering investigation in exercise of the power under Section 156(3) of the Code. In

the light of the decision of the Division Bench of this Court in Muhammed (supra), the view taken by the Single Bench of this Court in Maneesh

(supra) cannot be followed.

Learned Special Judge could not have taken cognizance of the offences under the Act in the absence of sanction under Section 19(1) of the Act.

The provision contained in Section 19(1) of the Act is couched in mandatory terms and forbids the court from taking cognizance of any offence

mentioned therein against a public servant except with the previous sanction of the competent authority. Grant of sanction by the competent authority

under Section 19(1) of the Act is a sine qua non for taking cognizance of the offence. The language employed in sub-section (1) of Section 19 admits

of no equivocation and operates as a complete and absolute bar to any Court taking cognizance of any offence mentioned therein against a public

servant except with the previous sanction of the competent authority (See Nanjappa v. State of Karnataka : AIR 2015 SC 3060).

In the instant case, as already found, in view of the decision in Anil Kumar (supra), in the absence of sanction under Section 19(1) of the Act, the

learned Special Judge could not have forwarded the complaint under Section 156(3) of the Code for investigation. In view of the bar under Section

19(1) of the Act, he could not have taken cognizance of the offences under the Act and proceeded further. In such circumstances, even assuming that

the allegations in the complaint and the findings in the vigilance enquiry report, prima facie, disclosed commission of offences under the Act by the

accused persons, the learned Special Judge could not have acted upon such complaint without any sanction under Section 19(1) of the Act.

Section 19 of the Act has undergone changes by virtue of the amendment of the Act which came into effect from 26.07.2018. The newly

introduced first proviso to Section 19(1) of the Act states that, no request can be made by a person, other than a police officer or an officer of an

investigating agency or other law enforcement authority, to the Government or the competent authority for previous sanction for taking cognizance by

the court of any of the offences specified in that provision unless such person has filed a complaint in a competent court about the alleged offences for

which the public servant is sought to be prosecuted and the court has not dismissed the complaint under Section 203 of the Code and directed the

complainant to obtain sanction for prosecution against the public servant for further proceeding. The second proviso to Section 19(1) of the Act states

that, in case of any request from any such person, the Government or the competent authority shall not accord sanction to prosecute a public servant

without providing an opportunity of being heard to the concerned public servant.

Therefore, after the amendment of Section 19(1) of the Act, in order to get sanction for prosecution, a private person has to satisfy two conditions.

The first condition is that he should have filed a complaint in the competent court alleging the offences for which the public servant is sought to be

prosecuted. The second condition is that the court has not dismissed such complaint under Section 203 of the Code but directed him to obtain sanction

for prosecution against the public servant. In such a situation, the law now also provides an opportunity to the public servant concerned of being heard

in the matter of granting sanction for prosecution.

In the instant case, Ext.P9 order passed by the learned Special Judge, forwarding the complaint under Section 156(3) of the Code for investigation,

is liable to be quashed in the absence of any sanction under Section 19(1) of the Act obtained and produced by the third respondent before the court.

Once Ext.P9 order is quashed, it would mean that Ext.P10 F.I.R registered pursuant to such order and all further proceedings based on Ext.P10 F.I.R

would also become non-est.

However, in exercise of the powers under Article 227 of the Constitution of India, the complaint filed by the third respondent in the court below

cannot be quashed, especially in the absence of any order passed by the court below taking cognizance of the offences on the basis of the allegations

in the complaint.

Quashing of Ext.P9 order will result in restoring the complaint to the file of the Special Court. In view of the amendment of Section 19(1) of the

Act noticed earlier, it is for the Special Court to decide what further action should be taken by it on the complaint.

I have consciously refrained from discussing the merits of the allegations contained in Ext.P7 complaint lest it may cause prejudice to the parties in

the further proceedings before the court below.

Consequently, the petition is allowed in part and Ext.P9 order passed by the Court of the Enquiry Commissioner and Special Judge, Kozhikode is

set aside. Ext.P7 complaint shall stand restored to the file of the court below. Learned Special Judge shall pass appropriate orders on the complaint in

accordance with law. It is made clear that this Court has not expressed any opinion on the merits of the allegations contained in Ext.P7 complaint.

All pending interlocutory applications are closed.