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2025 DIGILAW 2277 (KER)

Narayanan R. S/o Ramunni Menon v. State of Kerala

2025-08-23

A.BADHARUDEEN

body2025
ORDER : 1. The revision petitioner who is aggrieved by order dated 12th November 2024 passed by the Enquiry Commissioner and Special Judge Thiruvananthapuram in C.C. No. 10 of 2015, has preferred this revision. According to the revision petitioner, who is the 1st accused in this case, discharge plea raised by the 1st accused on the ground that there was no sanction obtained under Section 197 Code of criminal procedure (for short, ‘CrPC') was negatived by the special judge without valid reasons. The respondent is the State of Kerala represented by VACB. 2. In this matter, the prosecution alleges commission of offences punishable under Section 13 (1)(c) and (d) read with Section 13 (2) of the the Prevention of Corruption Act , 1988 (for short ‘PC Act’ hereafter) as well as under Sections 109, 409, and 420 read with Section 120 B of the Indian Penal Code by the accused. 3. The prosecution case is that, A1 and A3 were the Chairman of Kerala State Electricity Board (for short the KSEB) at the relevant time. A2, A7 and A8 were members of the Board of Directors and A4 and A9 were the employees of the KSEB. A5 was the Minister for Electricity in the State Cabinet at the relevant time. A6 was the General Manager, M/s. ATV Projects India Ltd, which was an Indian collaborator of M/s. S.E.M.T Pielstick, a French company, arrayed as A12 herein. A10 was the Chairman and All was the Manager of A12 company. The specific allegation is that A1 to A5 and A7 to A9 while holding different posts in KSEB as public servants at different times since 1991, with dishonest and fraudulent planning for securing a purchase contract in favour of A10 to A12, for purchase of five Diesel Power Generator sets, auxiliaries and other accessories for the proposed Brahmapuram Diesel Power Plant (for short BDPP) in Brahmapuram, which is a project of KSEB. The further allegation is that the above accused persons intentionally omitted to invite global tenders or limited global tenders or tenders by adopting corrupt and illegal means and without any public interest, they intentionally committed to perform public duty by abusing their ofÏcial positions and secured the contract in favour of A10 to A12 by purchasing Diesel Power Generator and accessories at an escalated price causing a loss of Rs.4,70,000/- to KSEB and corresponding unlawful gain to A10 to A12. 4. The learned counsel for the 1st accused/revision petitioner pointed out that in this matter without obtaining sanction under Section 197 of CrPC, no cognizance or prosecution is permissible as far as the petitioner is concerned, who worked as the Chairman of the KSEB during the period. In this connection, the learned counsel for the 1st accused relied on Section (5)(1) and (2) and subclause (5) along with Section 10 of the Electricity (Supply) Act 1948. According to the learned counsel for the revision petitioner reading the above provision, it is crystal clear that the Chairman of the KSEB will be appointed by the Government and removable by the Government. Therefore the special court wrongly found that no sanction under Section 197 of CrPC is required to prosecute the petitioner. According to the learned counsel for the revision petitioner since no prosecution is permissible as against the petitioner for want of sanction under Section 197 of CrPC the petitioner is entitled to get discharge. Accordingly he sought interference in the order impugned. 5. Dispelling this contention the learned public prosecutor placed a decision of this Court reported in Padmarajan C.V. v. Government of Kerala and Others, 2009 (1) KHC 65 where the petitioner herein also is one among the writ petitioners. In fact, in this decision this court considered two writ petitions filed by the 5th accused (Sri.C V Padmarajan) and the present petitioner who is the 1st accused (R Narayanan). According to the learned public prosecutor as per Paragraph No.13 of judgment this court appraised the contention regarding want of sanction and found that “As far as the present case is concerned the overt acts by each of the public servants including accused Nos. 1 and 5 and the circumstances under which and the purported position in which those public servants committed the aforesaid overt acts can be considered in a better way only by the Trial Court and that too after trial. It will be hazardous for the Trial Court or for this Court in a Writ Petition to attempt a decision on that question at this stage of the proceedings. Hence, I leave it to the petitioners to raise the question of prosecution sanction under S.197 CrPC before the Trial Court at the appropriate stage when the whole factual gamut is within the comprehension of the Court”. Hence, I leave it to the petitioners to raise the question of prosecution sanction under S.197 CrPC before the Trial Court at the appropriate stage when the whole factual gamut is within the comprehension of the Court”. In view of the said finding the learned Public Prosecutor submitted that, as per Relief No. 3 granted by this Court in Padmarajan C.V.'s case (supra), the question of prosecution sanction under Section 197 of the CrPC, was relegated to the stage of trial as indicated hereinbefore, and therefore the parties in the above case could not raise plea of discharge for want of sanction, without opting for trial. According to the learned counsel for the revision petitioner in Padmarjan C V’s case (supra) the right of the petitioner to seek discharge was reserved and therefore the said decision could not have any deterrent effect on the plea for discharge on the ground of want of sanction. But this contention cannot be accepted as this court relegated the decision regarding want of sanction during trial after adducing evidence, and not before trial by way of discharge or otherwise. 6. In paragraphs 19 and 20 of the impugned order, the learned Special Judge discussed the plea raised by the first accused and negatived the same. The relevant portions read as under: “Point No. 2 : As a continuation to the history narrated above it is apposite to note that the prosecuting agency filed the charge sheet in this court on 23.04.2015 after obtaining necessary sanction from the Government of India as envisaged under Sec. 188 of Cr.P.C. Mr. Chandrasekharan, former Deputy Chief Engineer (KSEB), who was A7 in the first chargesheet filed before the Enquiry Commissioner and Special Judge Thrissur, expired when the writ petitions were pending. The present charge sheet was filed excluding him from the array and thus the total number of accused is reduced twelve. Pending this case, accused No.2, Y.R.Moorthi, former Member, KSEB died and charge against him stood abated. Accused Nos. 10 to 12 have not appeared so far. A10 and A11 are French Nationals and A12 is a foreign company. It is seen that extradition proceedings were initiated even when the charge sheet was filed before the Enquiry Commissioner and Special Judge, Thrissur. However, even when the charge sheet was filed before this court, nothing materialized. Accused Nos. 10 to 12 have not appeared so far. A10 and A11 are French Nationals and A12 is a foreign company. It is seen that extradition proceedings were initiated even when the charge sheet was filed before the Enquiry Commissioner and Special Judge, Thrissur. However, even when the charge sheet was filed before this court, nothing materialized. In spite of repeated queries made by this court, prosecution could not place any positive material as to the present stage of extradition. Therefore, this court decided to proceed with the case against the other accused. 20. It appears that prosecution attempted to obtain sanction under Sec. 197(1) of Cr.P.C as against A1 and A5. It was declined by the Government as per order dated 14.10.2022 in GO.MS.No. 18/2022/Vig. A copy of this order was produced by the prosecution on 27.02.2023 with a report of the Investigating officer. Learned Public Prosecutor took several adjournments for producing a clarificatory order since he points out that this order proceeds as if the request of the Vigilance was for a review of earlier order whereas, there was no earlier order at all. Finally, the learned Public Prosecutor expressed his helplessness in getting a clarificatory order. He submitted that despite earnest efforts and reminders by the VACB, the Government has not bestowed its attention. However, in the light of my finding on point No.1 above, granting or rejection of sanction under Sec. 197 of Cr.P.C has no relevancy at all as far as the offences under the P.C. Act is concerned.” 7. Going by the decision in Padmarajan C.V.’s case (supra) , it could be gathered that one of the writ petitions considered by this Court is W.P. No. 20817 of 2008 , filed by the present petitioner/first accused, Sri R. Narayanan and the prayer therein was to drop the proceedings on the ground that the prosecution was in violation of Section 42 of the PC Act, and Sections 197 and 188 of the CrPC. The prayers are as under: a) issue a writ of certiorari or other writ or order to quash Ext. P1 charge sheet and Ext. P2 summons and thereby upholding the protections of the petitioner under the provisions of S.188 and 197(1) CrPC. b) declare that the Vigilance Court, Thrissur has no jurisdiction and legal authority to proceed with Ext. P1 charge sheet and P2 summons against the petitioner. P1 charge sheet and Ext. P2 summons and thereby upholding the protections of the petitioner under the provisions of S.188 and 197(1) CrPC. b) declare that the Vigilance Court, Thrissur has no jurisdiction and legal authority to proceed with Ext. P1 charge sheet and P2 summons against the petitioner. c) issue a writ of mandamus or other writ or order or direction directing the respondents 1 to 4 to drop the prosecution proceedings now initiated against the petitioner without any sanction from the competent authorities under S.188 and 197 (1) CrPC. d) issue such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of this case. 8. On perusal of Section 5 of the Electricity (Supply) Act , 1948, it is evident that the power to constitute an Electricity Board is vested with the Government by issuing an appropriate notification. As per sub-section (5) of Section 5 , one of the members possessing any of the qualifications specified in sub-section (4) shall be appointed by the Government as the Chairman of the Board. Sub-section (4) specifies the required qualifications and there is no dispute that the first accused herein possessed the said qualifications. Section 10 of the Electricity (Supply) Act , 1948 lays down the procedure for the removal or suspension of members, and the authority to do so is vested in the State Government. 9. While addressing the challenge raised in this revision petition it could be gathered that the challenge herein was already addressed by this Court in Padmarajan C.V.’s case (supra) while addressing the first prayer in W.P.(C) No. 20817 of 2008 seeking quashment of charge sheet and summons issued against the petitioners for want of sanction under Section 188 and 197 of CrPC and this Court categorically held in relief No.3 that “The question of prosecution sanction under Section 197 of CrPC is relegated to the stage of trial as indicated hereinabove. Both sides are at liberty to raise all other contentions before the trial court during trial.” While holding so this observed that as far as the present case is concerned the overt acts by each of the public servants including accused Nos.1 and 5 and the circumstances under which and the purported position in which those public servants committed the aforesaid overt acts can be considered in a better way only by the trial court and that too, after trial. It will be hazardous for the trial court for this court in a writ petition to attempt a decision on that question at this stage of the proceedings. Hence I leave it to the petitioners to raise the question of prosecution sanction under Section 197 CrPC before the trial court at the appropriate stage when the whole factual gamut is within the comprehension of the court. Even though this court observed that the said order was “without prejudice to the right of the accused persons to plead for a discharge” this court never intended that after permitting the petitioners that “the question prosecution sanction under Section 197 of CrPC is relegated to the stage of trial” the same could be a ground for discharge. In fact, on merits the discharge plea would not succeed as the prosecution materials would prima facie show that the case against the petitioner would require trial though the discharge plea was raised for want of sanction under Section 197 of CrPC. Therefore the revision petition is liable to be dismissed holding that the trial shall go on and the petitioner is at liberty to raise the issue of prosecution sanction under Section 197 of CrPC during trial based on the evidence to be adduced as held in Padmarajan C V’s case (supra), since the said verdict has become final. Accordingly this revision petition fails and is dismissed.