P.Sasidharan Nair vs State Of Kerala

R.Narayana Pisharadi, J

The petitioner was the Programme Officer in the Kerala State Council for Child Welfare (for short 'the Council'). He is the sole accused in the case C.C.No.30/2021 pending in the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram.

One Jeevan Thomas had filed a complaint against the petitioner in the Special Court raising the allegation that the petitioner had misappropriated money. As per the direction of the Special Court, the Vigilance and Anti-Corruption Bureau (VACB) conducted a preliminary enquiry into the allegations in that complaint. On the basis of the preliminary enquiry report, the Special Court ordered the VACB to conduct investigation into the offences disclosed. Accordingly, a case was registered against the petitioner as VC2/2017/TVM by the VACB, Thiruvananthapuram Unit.

After completing the investigation, the VACB filed charge-sheet against the petitioner in the Special Court. The investigating officer had sought sanction from the competent authority for prosecution against the petitioner but sanction was declined by the authority concerned. As per Annexure-V order dated 17.09.2020, the Special Court found that the sanctioning authority considered extraneous and irrelevant matters for declining sanction for prosecution against the petitioner. Therefore, the Special Court returned the final report (charge-sheet) to the investigating officer with a direction to approach the sanctioning authority again for obtaining sanction for prosecution against the petitioner under Section 19 of the Act and to file final report thereafter.

Subsequently, as per Annexure-VI order, the General Secretary of the Council granted sanction for prosecution against the petitioner. It appears that, the investigating officer, then filed charge-sheet against the petitioner along with Annexure-VI order and that the Special Court took cognizance of the offences against the petitioner and numbered the case against him as C.C.No.31/2021.

As per the charge-sheet filed against the petitioner, the prosecution case against him is as follows: He was the Programme Officer cum Administrative Officer in the Council during the period from February, 2013 to March, 2014. He had obtained a total amount of Rs.2,45,000/- from the Council, on different dates during the period from 04.02.2013 to 01.03.2014, as advance towards the expenses to be met for conducting cases before the High Court of Kerala. He forged eleven bills for advocate fee, purported to have been issued by Adv.B.S.Swathikumar and produced those forged bills in the Council as if they are genuine bills and misappropriated the amount of Rs.2,45,000/-. Thus, he committed the offences 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, 465 and 471 of the Indian Penal Code.

This petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') is filed by the petitioner for setting aside Annexure-V order passed by the Special Court.

Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned senior counsel who appeared for the second respondent.

The validity of Annexure-VI order granting sanction for prosecution against the petitioner has been challenged by him in the writ petition filed as W.P(C) No.15482 of 2021 and therefore, I do not propose to consider that question in this application filed under Section 482 of the Code.

Learned counsel for the petitioner has challenged Annexure-V order passed by the Special Court on three grounds :  (1) Annexure-V order was passed by the Special Court without affording an opportunity of hearing to the petitioner (2) The Special Court has no power to direct the sanctioning authority to grant sanction for prosecution or to reconsider the decision taken by it by which it declined to grant sanction for prosecution.(3) An order passed by the sanctioning authority is not amenable to judicial review by the Special Court.

There is no merit in the contention of the learned counsel for the petitioner that the Special Court should have heard him at the pre-cognizance stage. The accused is not entitled to be heard before the trial court at that stage. When the jurisdictional court consideres the final report filed by the police, the accused has got no right of hearing. The principle underlying audi alteram partem rule has no application at that stage.

There is merit in the contention of the learned counsel for the petitioner that the Special Court has no power to direct the sanctioning authority to grant sanction for prosecution. It is settled law that court cannot compel or give direction to the sanctioning authority for granting sanction for prosecution (See Mansukhlal Vithaldas Chauhan v. State of Gujarat : AIR 1997 SC 3400).

In the instant case, as per Annexure-V order, the Special Court has not given any direction to the sanctioning authority to grant sanction for prosecution against the petitioner. The Special Court has only directed the investigating officer to approach the sanctioning authority again seeking sanction for prosecution. The Special Court has not even directed the sanctioning authority to reconsider the decision taken by it.

Regarding the third contention raised by the petitioner, the Special Court has certainly got power to decide on the questions of adequacy, validity, need for sanction etc. at the post-cognizance stage. The legality and/ or validity of the order granting sanction would be subject to review by the Criminal Courts [See State of Punjab v. Mohammed Iqbal Bhatti : (2009) 17 SCC 92].

The question whether the Special Court has got power of judicial review, at the pre-cognizance stage, of the decision taken by the sanctioning authority need not be considered here in the absence of any direction given by that court to the sanctioning authority to grant sanction for prosecution against the petitioner or to reconsider the decision already taken by it.

The burden of proving that the requisite sanction has been obtained rests on the prosecution. Such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based. Such facts might appear on the face of the sanction or might be proved by extraneous or independent evidence given during trial (See Madan Mohan Singh v. State of U.P : AIR 1954 SC 637 and State of Rajasthan v. Tarachand Jain : AIR 1973 SC 2131).

The validity of a sanction order, if one exists, has to be tested on the touchstone of the prejudice to the accused which is essentially a question of fact and, therefore, should be left to be determined in the course of the trial and not in the exercise of jurisdiction either under Section 482 of the Code of Criminal Procedure, 1973 or in a proceeding under Article 226/227 of the Constitution of India [See Director, C.B.I v. Ashok Kumar Aswal : (2015) 16 SCC 163].

The question, whether sanction for prosecution against the petitioner was granted by the competent authority on independent application of mind to the materials placed before it by the investigating officer, is a matter which can be agitated by the petitioner before the trial court at the appropriate stage.

In the light of the discussion above, I find no sufficient ground to interfere with the direction given by the Special Court in Annexure-V order to the investigating officer, especially at a stage at which the court has already taken cognizance of the offences against the petitioner.

Consequently, the petition is dismissed. The petitioner is at liberty to raise before the trial court all questions with regard to the adequacy and validity of the order granting sanction for prosecution, at the appropriate stage.