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1999 DIGILAW 638 (KER)

T. M. Jacob v. State of Kerala

1999-12-03

A.R.LAKSHMANAN, S.SANKARASUBBAN

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JUDGMENT S. Sankarasubban, J. 1. This Writ Appeal is filed by the petitioner in O.P.No.2150 of 1999. Theprayers in the Original Petition were to call for the records leading to Ext. P2 request for sanction for prosecution purported to be under S.197 of the Code of Criminal Procedure, made in Vigilance Case No. 1/97 and quash all proceedings thereto including the order granting sanction to prosecute the petitioner in the Vigilance Case No. 1 of 1997 and for the issue of a writ of mandamus forbearing the respondents from proceeding further in pursuance of the order of sanction against the petitioner in Vigilance Case No. 1/1997 on the file of the Court of Inquiry Commissioner and the Special Judge, Kozhikode. The statement of facts in the Original Petition are as follows: - 2. Petitioner is a member of the Kerala Legislative Assembly. He was formally a Minister in the Government of Kerala, as Minister for Irrigation. In his capacity as Minister for Irrigation, the petitioner had participated in the meeting of the Subject Committee for Irrigation constituted by the Kerala Legislative Assembly. The said Committee on 16.5.1995 took certain decisions in respect of the Karappara Kuriarkutty Project. In relation to that, long after the event, on 8.1.1998, a raid was conducted simultaneously in the residence of the petitioner at Thiruvananthapuram and his ancestral house at Koothattukulam. According to the petitioner, the documents seized did not evidence any involvement of the petitioner in any case. They were produced before the Court of Inquiry Commissioner and Special Judge, Kozhikode, where the case is pending as Vigilance Case No. 1 of 1997. It appears that the petitioner was added as 9th accused in Vigilance Case No. 1 of 1997. The charge against the petitioner is as follows: "A9 Sri.T.M.Jacob was the Minister of Irrigation and Culture. As on 1.7.1995, a division was formed for the KKIP and the work started on 15.7.1995 without the necessary requirement as mentioned supra. A subject committee meeting was held on 16-5-95 in which A9 has mention that though financial sanction was not provided with, directions have been given for some work through Departmental execution. The meeting was convened by A8 and A9 who was the Chairman. A subject committee meeting was held on 16-5-95 in which A9 has mention that though financial sanction was not provided with, directions have been given for some work through Departmental execution. The meeting was convened by A8 and A9 who was the Chairman. When A9 made the statement, A8 though he was aware of the position that the necessary sanctions were not obtained for the concerned work and to begin the work without the necessary sanction is not permissible he preferred to observe silence when he was responsible to talk. The statement of A9 linked with the silence of A8 is capable of inferring the consents between the two accused persons". 3. According to the petitioner, the charge is intimately linked with the conduct of the petitioner not only as Minister for Irrigation but it directly relates to the decisions taken by the Subject Committee constituted by the Kerala Legislative Assembly. Petitioner is a public servant. To prosecute a public servant in law, sanction as prescribed under S.197 of the Code of Crimin Procedure is necessary. At the time when the petitioner was added as additional accused and a report was made to take cognizance of the case against the petitioner, no such sanction had been obtained. Thereafter, a petition was presented before the Government of Kerala seeking sanction to prosecute the petitioner. On coming to know that such a request was made, the petitioner submitted a representation before the Governor of Kerala seeking an opportunity to be heard in the matter as the entire proceedings against the petitioner were barred under the provisions of the Constitution of India. According to the petitioner, a Minister or member of Legislative Assembly is protected under Art.194 of the Constitution of India. The petitioner was prosecuted for taking a decision in a house committee which is specifically covered under Art.194 of the Constitution of India. A similar question was decided by the Supreme Court in the decision reported in P. V. Narasimha Rao v. State 1998 (4) SCC 626 . Petitioner further complaints that sanction was granted by the Governor without even hearing him. Apart from contending the validity of the sanction, according to the petitioner, the entire proceedings are clearly contrary to Art.194 of the Constitution of India and contravening the same. Petitioner further complaints that sanction was granted by the Governor without even hearing him. Apart from contending the validity of the sanction, according to the petitioner, the entire proceedings are clearly contrary to Art.194 of the Constitution of India and contravening the same. Any person participating in the meeting of the subject committee is immune from prosecution and other proceedings under Art.194 of the Constitution of India. All the proceedings taken against the petitioner in Vigilance Case No. 1 of 1997 are therefore unconstitutional. 4. A counter affidavit has been filed in the Original Petition by the second respondent, viz., the Deputy Superintendent of Police, Vigilance and Anti Corruption Dept., Palakkad. In para.3 of the counter affidavit, it is stated that the sanction for prosecution was issued on the basis of various actions taken by the petitioner in entrusting the work of Kuriarkutty - Karappara Project to the contractor, T. E. Kunhimahin Haji. It was not based on the conduct of the petitioner in the Original Petition in participating in a meeting of the House Committee. The instance of convening of the Subject Committee was mentioned in the Government order sanctioning prosecution as one of the events. It has been revealed during the investigation that accused No. 1 in the case went ahead full fledged in the execution and award of the entire contract to the contractor without following any of the mandatory proceedings and practices. According to the respondent, the Subject Committee has only powers under R.235 of the Procedure and Conduct of Business of Kerala Legislative Assembly Rules and its decisions are only recommendatory in nature. Hence, the sanction for prosecution was given on the basis of totality of facts and actions taken by the petitioner in awarding the contract to T. E. Kunhimahin Haji. In para.4 of the counter affidavit, it is contended that the Investigating agency has not harped upon the Subject Committee's discussion and no proceeding has been taken on it. The allegation of malafide is denied. The contention of the petitioner that the charge was intimately linked with the conduct of the petitioner not only as Minister for Irrigation but it directly relates to the decision taken in the Subject Committee is incorrect. The procedure in the subject committee is not the subject matter of the prosecution. The prosecution was not launched on the basis of the subject committee's reference. The procedure in the subject committee is not the subject matter of the prosecution. The prosecution was not launched on the basis of the subject committee's reference. The charge has been laid against A9 as Minister to derive pecuniary advantage to T. E. Kunhimahin Haji. The sanction need be obtained only before the filing of the charge sheet. The contention of the petitioner regarding violation of Art.194 of the Constitution of India is not correct. 5. During the course of hearing before the learned single Judge, by memo dated 8-3-1999, the respondents produced the sanction order dated 24-10-1998 and also the charge sheet filed against the petitioner. Learnedsingle Judge, after hearing both parties, dismissed the original petition. In para.8 of the judgment, the learned single Judge has taken the view that a reading of the charge now framed against the petitioner shows that it isentirely different. Petitioner's participation in the meeting of the Subject Committee is not the foundation of the charge. No prosecution has now been launched against the petitioner on the basis of his participation in the Subject Committee, The charge is under the Prevention of Corruption Act and various Sections of Indian Penal Code that the petitioner abused his official position and guilty of corruption, which resulted in huge loss to the Government. Learned single Judge distinguishes the decision in P.V. Narasimha Rao v. State 1998 (4) SCC 626 that the petitioner is not being proceeded against for any such conduct as a Member of Legislative Assembly. Learned single Judge relied on the decisions in K. Veeraswamy v. Union of India 1991 (3) SCC 655, State of Bihar v. P.P. Sharma 1992 Supp. (1) SCC 222 and State of Maharashtra v. Ishwar Piraji Kalpatri 1996 (1) SCC 542 - for coming to the conclusion that the order of sanction is only an administrative act and not a quasi judicial one. Therefore, the Governor is not bound to give an opportunity to the petitioner. Regarding the ground of malafide the learned Judge took the view that the prosecution cannot be interfered with in the initial stage on the ground of malafide on the basis of the decision of the Supreme Court in State of Bihar v. J.A.C. Sidanha 1980 (1) SCC and Bhajan Lal's case 1992 Supp. Regarding the ground of malafide the learned Judge took the view that the prosecution cannot be interfered with in the initial stage on the ground of malafide on the basis of the decision of the Supreme Court in State of Bihar v. J.A.C. Sidanha 1980 (1) SCC and Bhajan Lal's case 1992 Supp. (1) SCC 335, Learned single Judge held that the mere fact that the complainant was guilty of malafide would be of no ground for quashing the prosecution. It is against the above judgment that the Writ Appeal is filed. 6. The contentions, which were urged before the learned single Judge, were reiterated before us. Learned counsel for the appellant contended that under Art.194 of the Constitution of India, there shall be freedom of speech in the Legislature of every State. Under clause (2) of Art.194, no member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect or the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. According to the learned counsel, the main charge against the petitioner/appellant is with regard to certain proceedings in the subject committee of the Kerala Legislative Assembly of which he was the Chairman. Hence, learned counsel contended that the entire charge is illegal. He also cited various decisions including the decisions of English Courts, which have held that a Member of Parliament cannot be proceeded against for what was said in the House of Legislature. The question of protection of Art.194 of the Constitution of India arises only if it is found that the petitioner/appellant is prosecuted for what was said in the subject committee. For this purpose, we would have to look into the charge sheet and find out the allegations in the same. The charge sheet is produced at 45 of the paper book. The introductory portion of the charge sheet is as follows: "The Kuriarkutty Karappara Irrigation Project (KKIP) was abandoned in the year 1986 vide order No. 18318/IS W-2/Ird. dated 5-12-86 of Govt. of Kerala in as is where is condition. The clearance from the Ministry of Environment and Forest and the Central Water Commission were not obtained from the Government of India. dated 5-12-86 of Govt. of Kerala in as is where is condition. The clearance from the Ministry of Environment and Forest and the Central Water Commission were not obtained from the Government of India. The Reservoir at Karappara and overflow weir at Kuriarkutty were not constructed. The power project was not finalised. There was no availability of the tail race water from the power project (Hydro Electric Project) for conveyance through the canals. The availability of 7.25 TMC of water at Moolathara Regulator as per the Inter State agreement "Parambikulam - Aliyar Project Agreement" between the States of Tamil Nadu and Kerala executed in the year 1958 was not even sufficient to cater to the needs of the existing left bank canal system of KKIP...." Sri. T. M. Jacob, former Minister for Irrigation and Culture (A9) entered into a criminal conspiracy with Sri. T. B. Kunhimahin Haji, S/o. Moideenkunhi, Padhur House, Thekkil (PO), Kasaragod (A7) a contractor, who had previously taken up the work of Karapuzha Irrigation Project during 1991 and thus became familiar to A9 on or about a day in January, 1992 to award the work of KKIP to A7 which was abandoned in 1986 ..... and in pursuance of the said conspiracy A9 visited Parambikulam Project area and discussed with officers on 14-1-92 of Irrigation Department and that A9 knowing fully well that the KKIP was abandoned for want of clearance from the Ministry of Environment and Forest, Govt. of India and the Central Water Commission, instructed the officials of Project-I, Kozhikode to submit feasibility report for the extension of canal and based on which instructions were given to the officials to go ahead with the proposals taken in the meeting held by A9 in his Chamber at Secretariat on 15-6-92. In furtherance of the above conspiracy Sri. V. P. Arumugham, (A1), former Chief Engineer, Project-I, Kozhikode gave a letter to Sri. N. V. Madhavan, the then Secretary, Irrigation Dept. (A8) on 29-1-94 requesting to lift the ban so as to resume work and that A8 knowing fully well that the Finance Dept, had rejected the very same proposal on 24-9-93, instead of declining the proposal, kept it for consideration at a later stage with the connivance of A9. And that A9 in furtherance of the said conspiracy, directed the said Al to produce a letter from Sri. And that A9 in furtherance of the said conspiracy, directed the said Al to produce a letter from Sri. K. Krishnankutty, MLA, Chittur constituency where the project is proposed, indicating for consuming the canal works abandoned in 1986 and to execute the work departmentally and that the said Al in furtherance of the conspiracy with Sri. R. Jayapalan Nair former Asst. Engineer, KKIP Section-I, Kozhinjampara (A6), Sri. T. M. Jacob (A9) and Sri. Narayanan Nambeesan, former Asst. Executive Engineer, KKIP Sub Division-I, Kozhinjampara (Approver) visited the canal site along with the said A7 on 17-8-1994 and thereafter approached Sri. K. Krishnankutty, MLA to give a request addressed to A9 containing details necessary for resuming the said work and to carry out the work departmentally in terms of the proposals in violation of procedures to resume the work as per decisions taken by the said A9 during his visit at Parambikulam Project area and discussion with officers on 14-1-92 and in the meeting held at Secretariat on 15-6-92 which have already been turned down by Finance Department in 1993. And that the said A9 in furtherance of the conspiracy, knowing fully well that Finance Department sanction is mandatory to resume the work, held a meeting on 15-11-94 and gave an assurance to the said Sri. K. Krishnankutty, MLA that the work would be carried out departmentally and the said A1 in pursuance of the said conspiracy with A9 and A8 submitted proposals for construction of canal departmentally to Govt. dated 7-3-95 and 7-4-95 for consideration of tender committee and A8 and A1 in their capacities as convenor and member of the Tender Committee, wilfully included the proposal which did not have the required Administrative Sanction and Financial Sanction from the Government of Kerala for consideration of the Tender Committee and the same was withdrawn on some pretext. And that A8 in furtherance of his conspiracy with A9 issued orders to Al to commence the work on spirit of declaration of the said A9 in the subject committee dated 16-5-95 and that the said Al in turn issued Technical Sanction for the estimate amounting to Rs. 43.75 lakhs without observance of the procedures ....." 7. Learned counsel brought to our notice the report of the meeting of the subject committee dated 16-5-1995, which is produced as Ext. P4. Ext. P4(a) is the translation. 43.75 lakhs without observance of the procedures ....." 7. Learned counsel brought to our notice the report of the meeting of the subject committee dated 16-5-1995, which is produced as Ext. P4. Ext. P4(a) is the translation. It is true that there was a discussion regarding Kuriarkutty Karappara Irrigation Project by the Subject Committee. The following passages are very relevant. A question was put by K. Krishnankutty for explanation of the delay in executing the work. Then the Chairman said that steps are being taken. The Secretary then stated as follows: "The concerned have been asked to invite tenders for construction of canal in, the land surrendered free. Though it is unauthorised to commence the construction before the approval of the CWC, steps are taken to undertake some works at the Departmental level. A special team has been deputed for preparation of Projects. Till now no contract work has commenced". The Chairman, A9, then stated as follows: "Steps are taken to erect a canal in the land surrendered. When the matter was taken up with the Finance Department, they objected and thereforeinstructions have been given to execute the work by the department". The Secretary then stated that without following the rules nothing can be done. Steps are being taken to go ahead with the work of erecting a canal at least in the land surrendered. 8. The charge sheet mentions that in the subject committee meeting on 16-5-1995 in pursuance of the conspiracy he had stated that works have been allowed to start unauthorisedly. A reading of the charge sheet does not show that the charge against the petitioner/appellant is only regarding what has happened in the subject committee. The charge sheet shows that the Kuriarkutty - Karappara Irrigation Project even though started in 1986 was not continued. Appellant entered into a conspiracy with the contractor and other officials to continue the construction of the project in 1991. A decision was taken to award the work to A7 in January, 1992. On 14-1-1992 A9 visited the project in pursuance of the conspiracy and instructed the officials to submit feasibility report for the extension of the canal. A meeting was held on 15-6-1992 to go ahead with the proposal. In furtherance of the conspiracy, the former Chief Engineer gave a letter to the Secretary to lift the ban so as to resume the work. A meeting was held on 15-6-1992 to go ahead with the proposal. In furtherance of the conspiracy, the former Chief Engineer gave a letter to the Secretary to lift the ban so as to resume the work. Then the appellant directed Al to procure a letter from the local MLA for continuing the work immediately. Appellant again visited the site on 17-8-1994. Appellant held a meeting on 15-11-1994 and gave an assurance to Krishnankutty that the work could be carried on Departmentally and then the proposal for the construction of the canal was placed before the tender committee. Thereafter, A8, in pursuance of the conspiracy with A9 issued orders to commence the work on the spirit of declaration of A9 in the subject committee dated 16-5-1995. 9. Thus it can be seen that the discussions in the Subject Committee cannot be said to be the basis for the prosecution. In the subject committee, the appellant had only said what has done by him. According to the allegation, the conspiracy was there even before the Subject Committee meeting. The MLAwanted to know what has been done in pursuance of the earlier assurance of the Minister. Then it was revealed at the Subject Committee that already instructions have been given to start the work even though it was unauthorised. Hence, we agree with the learned single Judge that it cannot be said that the prosecution is based on what is said in the Subject Committee. Learned counsel then submitted that what was said in the Subject Committee will be produced as an item of evidence to prove the entire prosecution case. The question whether the appellant can get privilege of what is said in the subject committee need not be considered now. Hence, according to us, the charge sheet is not merely based on what was said or done in the subject committee. It is left to the appellant to raise before the Criminal Court any privilege with regard to the proceedings in the Subject Committee and it is for that court to decide on that question, if it is raised. On looking into the charge sheet, we are of the view that it is not hit by Art.194 of the Constitution of India. 10. In the above view of the matter, we are not discussing the various decisions cited by the learned counsel for the appellant. On looking into the charge sheet, we are of the view that it is not hit by Art.194 of the Constitution of India. 10. In the above view of the matter, we are not discussing the various decisions cited by the learned counsel for the appellant. According to us, the facts in this case are entirely different. 11. As already stated, the Governor granted sanction to prosecute the appellant. According to the appellant, the Governor ought to have heard him before granting sanction. We are not able to accept this argument. In K. Veeraswamy v. Union of India 1991 (3) SCC 655, it has been held that the power to give sanction for prosecution can be conferred on sanctioning authority. The sanctioning authority has to apply its mind to material on record and form its own opinion. But if material makes out the offence, authority is bound to accord the sanction. It is further stated that this provision is not meant to afford protection to public servant from criminal prosecution. It is only to protect the honest public servants from frivolous and vexatious prosecution.In State of Maharashtra v. Ishwar Piraji Kalpatri - 1996 (1) SCC 542 , the Supreme Court observed that there is no provision in law or otherwise which makes it obligatory of an opportunity of being heard to be given to a person against whom the report is to be lodged. On a reference to the order passed by the Governor, it is clear that there has been application of mind. 12. Regarding the allegation of malafide, the appellant J.A.C. Saldanha 1980 (1) SCC 554 , "If an information is lodged at the police station and an offence is registered, the mala fide of the informant would be of secondary importance if the investigation produces unimpeachable evidence disclosing the offence". 13. After considering the entire facts and circumstances of the case, we are of the view that the power of this court under Art.226 of the Constitution cannot be used for quashing the charge sheet against the petitioner/appellant. Writ Appeal is dismissed.