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2023 DIGILAW 575 (KER)

State Of Kerala v. Navaneeth Krishnan

2023-07-26

KAUSER EDAPPAGATH

body2023
ORDER : An important question relating to the authority of Vigilance and Anti-Corruption Bureau (for short, 'VACB') of the State to register the crime and investigate the offences under the Prevention of Corruption Act, 1988 (for short, 'the P.C.Act') committed by the employees of the Central Government arises for consideration in these Criminal Revision Petitions. 2. The VACB, Kottayam unit registered a crime as V.C.No.5/2010/KTM against four accused persons. After completing the investigation, they filed final report at the court of Enquiry Commissioner and Special Judge, Kottayam (for short, 'the court below') alleging offences punishable under Sections 13(1)(c) and (d) r/w 13(2) of the P.C.Act and Sections 120-B, 420, 468, 471 and 204 of the IPC. 3. The prosecution allegation in short is a s follows: The accused No.1 is the Village Extension Officer, Thalayolaparamba and the Implementing Officer of Project No.137/2006 of Thalayolaparamba Grama Panchayat. Accused Nos. 2 to 4 are the officials of North Malabar Gramin Bank, Thalayolaparamba Branch. The accused Nos. 1 to 4 conspired together with the intention to cheat Thalayolaparamba Grama Panchayath and the beneficiaries of the project No.137/2006. In pursuance of the conspiracy, the accused No.1 misappropriated the project amount of Rs.1,85,000/-by forging signatures in the pay orders issued in the name of the beneficiaries. The accused Nos. 2 to 4 without ascertaining the beneficiaries passed nontransferable pay orders and enabled accused No.1 to derive undue pecuniary advantage during the period from 27/02/2006 to 02/01/2007. 4. The court below took cognizance of the case as C.C.No.35/2014. The accused Nos. 2 to 4 filed three separate applications for discharge under Section 239 of Cr.P.C. mainly on the ground that the VACB, Kottayam had no authority or jurisdiction to register the crime and conduct the investigation in as much as they are the employees of the Central Government. The court below accepted the said contention and discharged them as per the common order dated 06/02/2020. The said order is impugned in these revision petitions filed by the State. 5. I have heard Sri.A. Rajesh, the learned Special Prosecutor for VACB, Smt. Shameena Salahudheen, the learned counsel for the accused Nos.2 and 3 (respondent in Crl.Rev.Pet Nos.422 & 626 of 2022) and Sri. A.Arunkumar, the learned counsel for the accused No.4 (respondent in Crl.Rev.Pet No.332 of 2023). 6. 5. I have heard Sri.A. Rajesh, the learned Special Prosecutor for VACB, Smt. Shameena Salahudheen, the learned counsel for the accused Nos.2 and 3 (respondent in Crl.Rev.Pet Nos.422 & 626 of 2022) and Sri. A.Arunkumar, the learned counsel for the accused No.4 (respondent in Crl.Rev.Pet No.332 of 2023). 6. The learned Special Public Prosecutor for VACB Sri.A.Rajesh submitted that the P.C Act does not exclude or prevent the State Police or a Special Agency of the State like VACB from investigating cases relating to corruption committed by the public servants of the Central Government and hence, the impugned order passed by the court below is unsustainable. The learned Special Public Prosecutor further submitted that the decision in Vijayan Kottari v. State of Kerala ( 2016(3) KHC 749 ) relied on by the Court below to rest its conclusion is no longer good law. The learned Public Prosecutor relied on the decision of the Apex Court in Sharma A.C. v. Delhi Administration [1973 KHC 504], the decision of the Full Bench of the Madhya Pradesh High Court in Arvind Jain v. State of Madhya Pradesh [2018 KHC 4261], the decision of the Divsion Bench of the Madhya Pradesh High Court in Ashok Kumar Kirtiwar v. State of Madhya Pradesh [2001 KHC 2396] and the decision of the Single Bench of the Andhra Pradesh High Court in G.S.R. Somayaji (Dr.) v. State through CBI [2002 KHC 2104] in support of his submissions. 7. On the other hand, the learned counsel for the accused/respondent submitted that the Gramin Banks are governed by the policies of the Central Government, the State Government has no control or power on the affairs of the North Malabar Gramin Bank, and the accused Nos 2 to 4, being officers of the North Malabar Gramin Bank, CBI, Central Vigilance Commission or such other Central Government Authority alone has authority and jurisdiction to investigate the offences allegedly committed by them under the P.C Act. There is no illegality or impropriety in the impugned order warranting inference by this Court in exercise of its jurisdiction under Section 397 r/w 401 of Cr.P.C., submitted the learned counsel. 8. As per Sections 24 and 29 of the Regional Rural Banks Act, 1976, Gramin Banks are governed by the policies of the Central Government. There is no illegality or impropriety in the impugned order warranting inference by this Court in exercise of its jurisdiction under Section 397 r/w 401 of Cr.P.C., submitted the learned counsel. 8. As per Sections 24 and 29 of the Regional Rural Banks Act, 1976, Gramin Banks are governed by the policies of the Central Government. The Apex Court in Chandra Prakash Singh and Others v. Chairman, Purvanchal Gramin Bank and Others (2008 KHC 4340) held that the State Government does not have any control over the Gramin Bank. In Prathama Bank, Head Office, Moradabad through its Chairman v. Vijay Kumar Goel and Another ( AIR 1989 SC 1977 ), it was held that the provisions of the Regional Rural Banks Act, 1976 make it clear that the Regional Rural Banks are under deep and pervasive control of the Central Government and have been established as its instrumentality. At any rate, it is not in dispute that the North Malabar Gramin Bank could only be treated as a Central Government institution and the Central Government has the power and control over it and its employees. Thus, the short, but important question required to be decided is -Whether the State Police or Special Agency of the State like VACB has power and jurisdiction to investigate into the offences under the PC Act against the employees under the Central Government? 9. Section 156 of the Cr.P.C falling within Chapter XII deals with powers of the police officers to investigate cognizable offences. Sub Clause (1) of Section 156 of Cr. P.C says that any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Sub Clause (2) of Section 156 of Cr. P.C says that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Section 4 of Cr. P.C. deals with the trial of offences under the Indian Penal Code and other laws. Sub Section (1) of Section 4 of Cr. Section 4 of Cr. P.C. deals with the trial of offences under the Indian Penal Code and other laws. Sub Section (1) of Section 4 of Cr. P.C says that all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions of the Code. Sub Section (2) of Section 4 of Cr. P.C makes it clear that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The Criminal Procedure Code is the parent statute which provides for investigation, inquiry into and trial of cases and unless there is specific provision in another statute to indicate a different procedure to be followed, the provisions of Cr. P.C cannot be displaced. In other words, the existence of a special law by itself cannot be taken to exclude the operation of Cr. P.C. Unless the special law expressly or impliedly provides a separate provision for investigation, the general provision under Section 156 of Cr. P.C shall prevail. 10. The PC Act is a special enactment enacted to deal with the bribery and corruption. Going by Section 4(2) read with Section 156 of Cr.P.C, the provision of Cr.P.C shall be applied to the extent that they are not inconsistent with the provisions of the P.C Act which being a Special Act, will deal with all kinds of the offences committed under it. Section 17 of the P.C. Act deals with investigation into cases under the Act. Section 17 of the P.C. Act deals with investigation into cases under the Act. It is extracted hereunder for easy reference: “S.17: Persons authorised to investigate.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,— (a) in the case of the Delhi Special Police Establishment, of an Inspector of Police; (b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police; (c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant: Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant: Provided further that an offence referred to in clause (e) of subsection (1) of section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.” 11. The PC Act does not specifically envisage a separate procedure for conducting investigation. The offences under the PC Act can be investigated into by the State agency or by the Central agency or by any police agency as can be seen from S.17 of the said Act with the qualification that the police officer shall be of a particular rank. Section 17 does not exclude or prevents the State Police or a Special Agency of the State from registering a crime or investigating cases relating to bribery, corruption and misconduct against Central Government employess. Section 17 does not exclude or prevents the State Police or a Special Agency of the State from registering a crime or investigating cases relating to bribery, corruption and misconduct against Central Government employess. It is for convenience and to avoid duplication of work, the Central Bureau of Investigation -a specialised investigating agency under the Special Police Establishment -is entrusted with the task of investigation of the cases of corruption and bribery against the employees of Central Government and its Undertakings and the Anti Corruption Bureau -a specialised investigating agency of the State -is entrusted with the task of investigation of the cases of corruption and bribery against the employees of State Government and its Undertakings. As stated already, Section 156 of Cr.P.C. authorizes any police officer in charge of a police station to investigate a cognizable offence without the order of the Magistrate. The word ‘Police Station’ has been defined in Clause (s) of Section 2 of the Code to mean “any post or place declared generally or specially by the State Government, to be a police Station, and includes any local area specified by the State Government in this behalf”. VACB is also a wing of State Police. The offences under the PC Act are also cognizable and can, therefore, be investigated by the State Police or VACB. The only rider is that the investigation can be done only by a police officer of the rank specified in Section 17 of the PC Act. As per Section 22 thereof, the provisions of Cr.P.C shall apply save and except the specific areas envisaged by the Act. 12. A Single Bench of this Court in Vijayan Kottari (supra) took the view that since the Central Government alone has power and control over the North Malabar Gramin Bank, the investigation into the offences committed by the officers of the Bank under the P.C Act can only be conducted by CBI or Central Vigilance Commission or any other Central Government Authority. While arriving at such a conclusion, the learned Single Judge mainly relied on the provisions in the North Malabar Gramin Bank (Officers and Employees) Service Regulations, 2000 (for short, the Regulations) and the provisions in Manual of Vigilance and Anti-Corruption Bureau (for short, the Vigilance Manual). While arriving at such a conclusion, the learned Single Judge mainly relied on the provisions in the North Malabar Gramin Bank (Officers and Employees) Service Regulations, 2000 (for short, the Regulations) and the provisions in Manual of Vigilance and Anti-Corruption Bureau (for short, the Vigilance Manual). Regulation Nos.42 and 42(i) of the Regulations says that in case an investigation into the allegation of corruption or misconduct by an officer of Bank employee could not be undertaken by the Bank itself, the same may be entrusted to the Central Bureau of Investigation or the Central Vigilance Commission or such other Authority as may be approved by the Chairman. Paragraph 14(a) of the Vigilance Manual says that the main function of the Bureau is to effectively combat corruption and misconduct on the part of the Government Servants and other public servants of the State. Paragraph 35(ii) of the Vigilance Manual says that the instances of corruption and misconduct relating to the public servants under the Central Government received by the Bureau may be brought to the notice of the appropriate authorities. Relying on these provisions, the learned Single Judge found that the activities of the VACB is limited to investigation to the corruption and misconduct on the part of the Government servants and other public servants of the State and not the Central Government. 13. A similar question came up for consideration before the Apex Court as early as in 1973 in Sharma A.C. (supra). That was a case where a crime was registered against the accused under Section 5(2) of the P.C. Act, 1947 by the Anti-Corruption Department of Delhi Administration (State agency). After investigation, the final report was filed. The accused was tried before the Special Judge, Delhi and he was convicted and sentenced to undergo imprisonment. His appeal was dismissed by the High Court of Delhi. He challenged the conviction and sentence before the Apex Court. The main ground urged by the accused before the Apex Court was that Delhi Special Police Establishment Act, 1946 (for short, DSPE Act) as amended prescribed special powers and procedure for investigation of offences of bribery and corruption in the Departments of Central Government and as he was an employee of the Central Public Works Department and offences against him could only be investigated by the Special Police Establishment established under the Delhi Special Police Establishment Act. The investigation having not been done by the Delhi Special Police Establishment, his trial was vitiated, contended the accused. The Apex Court after evaluating the rival contentions held that the scheme of the DSPE Act does not either expressly or by necessary implication divest the regular police authorities of their jurisdiction, power and competence to investigate into offences under any other competent law. It was further held that the DSPE Act seems to be only permissive or empowering, intended merely to enable the Delhi Special Police Establishment also to investigate into the offences specified as contemplated by Section 3 without impairing any other law empowering the police authorities to investigate offences. The Central Bureau of Investigation has also been constituted by notification passed under Section 3 of the DSPE Act. Hence, the dictum laid down in the above decision squarely applies to the facts of the case. 14. The decision of the Apex Court in Sharma A.C. (supra) was not brought to the notice or considered by the learned Single Judge in Vijayan Kottari (supra). A conjoint reading of Sections 4(2), 156(1) of the Code and Sections 17 and 22 of the PC Act make it clear that the offences committed by the Central Government employees under the PC Act can very well be investigated by the State Police or VACB. The learned Single Judge did not consider the provisions of Sections 156 (1), 4(2) of Cr.P.C and Sections 17 and 22 of the P.C. Act mentioned above which has a significant impact on the decision. Hence, the decision of the learned Single Judge in Vijayan Kottari (supra) is rendered per incuriam and need not be followed. A decision is said to be per incuriam if it is passed in ignorance of a binding precedent or a relevant provision of a statute which has a significant impact on the decision. In National Insurance Co. Ltd. V. Pranay Sethi & Others [ (2017) 16 SCC 680 ], it has been held by the Constitution Bench of the Apex Court that a decision 0r judgment can be per incurium if any provision in a statute, rule or regulation was not brought to the notice of the court or if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or Larger Bench. 15. 15. The learned Single Judge, as stated already, relied on the Manual of Vigilance and Anti-Corruption Bureau as well as the North Malabar Gramin Bank (Officers and Employees) Service Regulations, 2000 to arrive at the conclusion that the investigation into the offences committed by the officers of the North Malabar Gramin Bank under the P.C Act can only be conducted by CBI or Central Vigilance Commission or any other Central Government Authority. They being Regulation and Manual have no force of a statute and hence cannot supercede the provisions of the Cr. P.C. The Apex Court in Lalita Kumari v. Govt. of U.P. And Others [ 2013 (4) KHC 552 ] in paragraph 79 considered the binding authority of the CBI Crime Manual. It was held that CBI Crime Manual is not a statute, it is only a set of administrative orders issued for internal guidance of the CBI officers and it cannot supersede the provisions of Cr. P.C. It was further held that in the absence of any indication to the contrary in the Cr. P.C itself, the provisions of the CBI Crime Manual cannot be relied upon. A Single Bench of this Court in Santhosh T.A. And Another v. State of Kerala [ 2017 (5) KHC 107 ] dealt with the binding authority of the Kerala Excise Manual under the Abkari Act. It was held that the Manual contains only executive instruction and has no force of a statutory provision. Thus, the provisions in the Vigilance Manual and the Regulations cannot override Sections 4(2) and 156(1) of Cr. P.C. That apart, neither Regulation 14(a) of the Regulations nor paragraph 35 (ii) of the Vigilance Manual strictly exclude the authority of VACB to investigate matters involving corruption and criminal misconduct among Central Government Employees or employees under the control of Central Government. The terminology used in Regulation 14(a) is 'main' and not 'only'. The word 'main' denotes that the primary function of VACB is to investigate corruption of public servants and Government servants of the State. The State VACB has other ancillary functions such as to investigate instance of corruption among Central Government employees or employees under the Central Government when the offence is committed within its territory. It does not imply that VACB restricts jurisdiction to Government servants and public servants of the State. The State VACB has other ancillary functions such as to investigate instance of corruption among Central Government employees or employees under the Central Government when the offence is committed within its territory. It does not imply that VACB restricts jurisdiction to Government servants and public servants of the State. Regulation 14(a) of the Regulations and paragraph 35(ii) of the Vigilance Manual were inserted only as a matter of convenience and not intended to restrict powers of VACB. Clause 42(i) of the Regulations mentions that when the investigation into allegation cannot be undertaken by the bank, the same may be entrusted to the CBI. It presupposes the bank to conduct an investigation into the allegation of corruption, criminal misconduct initially and then to entrust the investigation to CBI only in cases where the Chairman feels that the allegation cannot be conveniently investigated by the bank. The said provision goes against all the basic principles of criminal jurisprudence against registration of crime and conducting of investigation. Registration of a crime and subsequent investigation can only be undertaken by the police or investigating agency. 16. The question whether State police has jurisdiction to investigate the offences of bribery and corruption under the PC Act against the Central Government employees came up for consideration before the High Court of Madhya Pradesh and Andhara Pradesh. A Division Bench of the Madhya Pradesh High Court in Ashok Kumar Kirtiwar (supra) held that the State Police, be it a regular police force or the Special Police Establishment, can investigate the offences of bribery and corruption against the Central Government employees posted in the State of Madhya Pradesh. The Full Bench of the Madhya Pradesh High Court in Arvind Jain (Supra) also took the view that the offence of bribery and corruption against the Central Government employees posted in the State of Madhya Pradesh can be investigated by regular police force or Special Police Establishment. The Single Bench of Andhra Pradesh High Court in G.S.R. Somayaji (supra) held that the trap laid down against Central Government employees and investigation done by the State agency cannot be questioned on the premises that it is illegal for want of jurisdiction. I perfectly agree with the dictum laid down in those decisions. 17. The Single Bench of Andhra Pradesh High Court in G.S.R. Somayaji (supra) held that the trap laid down against Central Government employees and investigation done by the State agency cannot be questioned on the premises that it is illegal for want of jurisdiction. I perfectly agree with the dictum laid down in those decisions. 17. The upshot of the above discussion is as follows: There is no special provision in the P.C. Act or DSPE Act excluding or preventing the State police or a Special Agency of the State from investigating cases relating to the corruption of the Central Government employees. None of the provisions of the P.C Act or DSPE Act authorises CBI or Central Vigilance Commission or any other Central Government Agency alone to investigate in matters relating to the Central Government employees. In the absence of a specific provision in the DSPE Act or PC Act divesting the power of the regular police authorities to investigate into the offences under any other competent law, it cannot be said that the power of the State police or a Special Agency of the State to register a crime and investigate into the offence allegedly committed by the Central Government employees in their State is taken away. For these reasons, I hold that the VACB, being a specially constituted body to investigate into the bribery, corruption and misconduct mainly under the P.C. Act is always clothed with the authority to investigate offences involving corruption that take place within the State, whether it is committed by a Central Government employee or a State Government employee. Hence, the impugned order discharging the accused Nos.2 to 4 cannot be sustained. 18. There is yet another aspect. It is obvious from Sub Section (2) of Section 156 of Cr. P.C that the investigation done by a police officer who is not empowered under Sub Section (1) of Section 156 shall not be called in question at any stage of the proceedings on the ground that he was not empowered to investigate under the said Section. It is obvious from Sub Section (2) of Section 156 of Cr. P.C that the investigation done by a police officer who is not empowered under Sub Section (1) of Section 156 shall not be called in question at any stage of the proceedings on the ground that he was not empowered to investigate under the said Section. Referring to the provisions of Sections 190, 193, 195 to 199 and 537 of the Code of Criminal Procedure, 1898 in the context of an offence under the Prevention of Corruption Act, 1947, the Apex Court in H.N. Rishbud v. State of Delhi ( AIR 1955 SC 196 ) has held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. The same was reiterated in M.P. and others v. Ram Singh [2000 Cri LJ 1401 (SC)]. In Union of India v. Prakash P. Hinduja and Another ( AIR 2003 SC 2612 ), it was held that once the charge sheet is filed, merely because the Investigating Agency had no jurisdiction to investigate the matter, the charge sheet cannot be quashed as it is not possible to say that "cognizance on a invalid police report is prohibited and is therefore quashed". On this ground also, the impugned order is not sustainable. It is, accordingly, set aside. 19. The accused Nos.2 to 4 have also contended in their applications for discharge that, on merits also, the prosecution against them will not lie. It is their case that, even if the entire allegations in the final report are believed in toto, no offence under the P.C.Act is made against them. The court below did not consider the contention of the accused on merits. On the other hand, the court below allowed the application on the ground that the investigating agency had no authority to conduct the investigation. Therefore, the court below is directed to consider the application for discharge preferred by the accused on merits and dispose of the same in accordance with law. The Criminal Revision Petitions are disposed of as above.