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2024 DIGILAW 1606 (KER)

M. R. Simon, S/o. Moshanadar v. State Of Kerala

2024-12-06

P.G.AJITHKUMAR

body2024
ORDER : This Crl.M.C. was filed invoking the provisions under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 by the accused in Crime No.VC.05/2023/SC of VACB, Special Cell, Thiruvananthapuram. The petitioner seeks to quash Annexure 1 First Information Report in the said crime. 2. Heard the learned counsel for the petitioner and the learned Senior Public Prosecutor as well as Special Public Prosecutor. 3. Crime No.VC.05/2023/SC of VACB, Special Cell, Thiruvananthapuram was registered alleging an offences punishable under Section 13(2) of the Prevention of Corruption Act, 1988. Acquisition of disproportionate assets by the petitioner attracting the offences described under Section 13(1)(e) of the PC Act (unamended) and 13(1)(b) of the PC Act (amended), is alleged. The petitioner raises several grounds in support of his plea for quashing Annexure 1. The twin contentions set forth by the learned counsel for the petitioner at the time of hearing as reasons to quash Annexure 1 First Information Report are: i) lack of previous approval from the Government as contemplated in Sections 17-A of the PC Act, and ii) lack of sanction under Section 19 of the PC Act 4. The learned Senior Public Prosecutor, on the other hand, would submit that no previous approval of the Government is required since the offence alleged against the petitioner is one described in Section 13(1)(e) of the PC Act (unamended) and 13(1)(b) of the PC Act (amended). In regard to the second contention, it is submitted that sanction under Section 19(1) is required to take cognizance only. 5. Ingredients of both of the said provisions are similar. Section 13(1)(e) of the PC Act (unamended) reads as follows: “13. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct,- a) xxx b) xxx c) xxx d) xxx e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known source of income.” Section 13(1)(b) of the PC Act (amended) reads as follows: “13. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct,- a) xxxx b) if he intentionally enriches himself illicitly during the period of his office” 6. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct,- a) xxxx b) if he intentionally enriches himself illicitly during the period of his office” 6. The offence that constitutes under the said provisions is criminal misconduct by a public servant by intentionally enriching himself illicitly during the period of his office. Indisputably, the petitioner was a public servant during the relevant period in connection with the affairs of the State Government. The Vigilance has registered the crime after verification of the allegations that during the check period between 01.01.2011 and 30.06.2019, the petitioner acquired assets far exceeding the known sources of himself and his family members. The question first raised is that without previous approval from the State Government under Section 17A of the PC Act, the Vigilance conducted the enquiry and commenced the investigation. 7. The relevant part of Section 17-A of the P.C. Act reads as follows: “17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties. (1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval- xxxxxxx” 8. A reading of the above provision makes it explicitly clear that previous approval of the competent authority is required for enquiry, inquiry, or investigation by police in respect of offences which have direct nexus with a recommendation made or decision taken by such public servant in discharge of his official functions or duties. An offence of acquiring disproportionate assets coming within the criminal misconduct under Section 13(1)(e) or 13(1)(b) of the P.C. Act is not such a kind of offence and hence previous approval under Section 17 A is not required for enquiry, inquiry or investigation into that offence by the police. 9. I am fortified in that regard by the law laid down by this Court in Shankara Bhat and Others v. State of Kerala and Others [ 2021 (5) KHC 248 ] and Jayaprakash J and Others v. State of Kerala and Another [ 2022 (1) KHC 206 ]. 10. 9. I am fortified in that regard by the law laid down by this Court in Shankara Bhat and Others v. State of Kerala and Others [ 2021 (5) KHC 248 ] and Jayaprakash J and Others v. State of Kerala and Another [ 2022 (1) KHC 206 ]. 10. In Shankara Bhat (supra), it was held, “22. The object of the Prevention of Corruption Act is to protect honest and upright public officers and to ensure that they are unnecessarily not dragged into litigation. It is also intended to ensure that the officers are insulated and protected against unnecessary litigation. Such a protection enable the officers to take prompt and bold decisions on files and the administrative machinery will move forward. Otherwise the officers would be reluctant to make any official recommendation or to take any decision on files, apprehending false accusation of corruption. In this context, it has to be noted that scope of Section 17A is specifically confined to "any recommendation made or decision taken by public servant" which alone falls within the protection under Section 17A. Definitely, the case of offences like misappropriation of funds, fraud, falsification of accounts, criminal breach of trust, conspiracy , etc. cannot be covered by the protection under Section 17A. Definitely, they do not involve any decision or recommendation at all. Such acts cannot be considered as one done in discharge of his official functions and duties as contemplated under Section 17A. Hence, it cannot, by any stretch of imagination, be held that investigation into any of the offences as mentioned above also needs prior approval, under Section 17A. Such an interpretation alone can be in consonance with the section as interpreted by the various decisions. In other words, the scope of Section 17A is only confined to investigation, inquiry or enquiry into any offence which is relatable to any decision taken or recommendation made by the authority. This purposive interpretation seems to be in consonance with the scope of Section 17A. 11. In Jayaprakash (supra), it was held, “21. The expression "discharge of his official functions or duties" in Section 17A of the Act reflects the legislative intent that the protection envisaged is not a blanket protection. The purpose is to protect an honest and responsible public servant if the recommendation made or decision taken by him is in discharge of his official functions or duties. The expression "discharge of his official functions or duties" in Section 17A of the Act reflects the legislative intent that the protection envisaged is not a blanket protection. The purpose is to protect an honest and responsible public servant if the recommendation made or decision taken by him is in discharge of his official functions or duties. As a necessary corollary, previous approval is required only if the recommendation made or decision taken is directly concerned with the official functions or duties of the public servant. When a recommendation or decision is made by a public servant, which is not directly and reasonably connected with his official functions or duties, he is not entitled to get the protection under Section 17A of the Act. 22. In order to apply the provisions of Section 17A of the Act, there shall be a "decision" or "recommendation" by a public servant against which an enquiry or investigation is under contemplation. Such "decision" or "recommendation" shall be a "decision" taken or "recommendation" made by the public servant in discharge of his official functions or duties.” 12. What follows from the above is that in a case where the offence alleged is one of amassing disproportionate assets or intentional enrichment by a public servant illicitly during the period of his office coming under Section 13(1)(e) (old) or Section 13(1)(b) (new) of the PC Act, no previous approval from the competent authority is required for the police to conduct an enquiry, inquiry, or investigation. Such an offence is not precisely relatable to a recommendation made or a decision taken by such public servant. Therefore the petitioner's contention in that regard is untenable. 13. The second limb of the petitioner's contention is that no sanction under Section 19 of the PC Act is obtained. As rightly pointed out by the learned Senior Public Prosecutor sanction of the Government under Section 19(1) of the PC Act is required to take cognizance of the offence by the court. Now, the investigation is going on and a final report is yet to be filed. Therefore, the stage of taking cognizance of the offence is not reached and therefore the contention with reference to Section 19 of the PC Act seldom arises now for consideration. That is a matter to be considered by the trial court once a final report alleging commission of an offence is submitted after the investigation. Therefore, the stage of taking cognizance of the offence is not reached and therefore the contention with reference to Section 19 of the PC Act seldom arises now for consideration. That is a matter to be considered by the trial court once a final report alleging commission of an offence is submitted after the investigation. In the said circumstances, I am of the view that this Crl.M.C. is liable to be disposed of without prejudice to the right of the petitioner to raise his contention concerning sanction under Section 19 of the PC Act before the trial court at the appropriate stage of the proceedings. 14. The learned Senior Public Prosecutor would submit that the investigating officer has no intention to arrest the petitioner during the investigation into the matter. The said submission is recorded. Accordingly, this Crl.M.C. is disposed of rejecting the plea for quashing Annexure 1 FIR, but without prejudice to the aforementioned right of the petitioner.