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2025 DIGILAW 644 (KER)

Rajasree Ajith v. State Of Kerala

2025-03-19

P.G.AJITHKUMAR

body2025
ORDER : The petitioner is the accused in C.C. No.8 of 2023 pending before the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram. The Special Court as per the order dated 27.02.2023 took cognizance of the offence punishable under Section 120B of the Indian Penal Code, 1860 ( IPC ) read with Sections 13 (1)(c) and 13 (1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (PC Act). The petitioner assails the said order in this petition filed under Section 482 of the Code of Criminal Procedure, 1973 (Code). 2. Annexure-3 is the final report filed by the Vigilance and Anti-Corruption Bureau (VACB), Special Investigation Unit-I, Thiruvananthapuram. The said final report was filed in Crime No.5/13/SIU-I. There were 10 accused in the crime. A final report was initially filed excluding the petitioner, who was the 1 st accused, based on which C.C.No.25 of 2020 was initiated. The prosecuting agency applied for sanction to prosecute the petitioner, she being a public servant as defined in Section 2(c) of the PC Act. The competent authority declined sanction vide Annexure-2 order. It was thereafter Annexure 3 final report was filed requesting to prosecute the petitioner for the offences punishable under Section 120B read with Sections 13(1)(c) and 13(1)(d) read with Section 13(2) of the PC Act, and also Section 120B read with Sections 420, 468 and 471 of the IPC . The Special Court considered whether cognizance could be taken in respect of the offences alleged against the petitioner even without a sanction under Section 19(1) of the PC Act. The Special Court, after considering the matter in detail, held as per the impugned order that cognizance could be taken for the offences under Section 120B of the IPC read with Section 13(2) of the PC Act. 3. Heard the learned counsel for the petitioner, the learned Senior Public Prosecutor and the Special Public Prosecutor (Vigilance). 4. The allegations set forth against the petitioner and her co-accused are summarised below: The 1st accused/petitioner was the managing director of the Kerala Transport Development and Financial Corporation (KTDFC). Sri.Vinod S.Nair availed a loan of Rs.22,68,329/- from KTDFC. A conspiracy was allegedly hatched among the accused to illegally avail that loan. A landed property belonged to witness Nos.2 to 5 was mortgaged to a nationalized bank. The 6 th accused obtained a power of attorney to sell that property. Sri.Vinod S.Nair availed a loan of Rs.22,68,329/- from KTDFC. A conspiracy was allegedly hatched among the accused to illegally avail that loan. A landed property belonged to witness Nos.2 to 5 was mortgaged to a nationalized bank. The 6 th accused obtained a power of attorney to sell that property. He executed a sale deed in favour of the 5 th accused, who in turn executed an agreement for sale in favour Sri.Vinod S.Nair. He availed the loan purportedly for the purchase of that property. In doing so the sale of the property in favour of the 5 th accused and the mortgage in favour of the bank were suppressed. It is also alleged that as a result of the conspiracy, witness Nos.2 to 5 were made to execute the power of attorney in the name of the 6 th accused on 17.02.2005 and executed the sale deed in favour of 5 th accused. The further allegation is that in pursuance of the conspiracy accused Nos.1 to 5 being the Managing Director and other public servants of KTDFC sanctioned the loan without proper verification of the documents and surpassing the mandatory procedure contemplated for processing the loan application. It is further alleged that the loan application and other documents were prima facie insufficient for granting the loan. The loan amount therefore has become irrecoverable. 5. The learned counsel for the petitioner would submit that having the request for prosecuting the petitioner been declined, the final report should not have been filed before the Special Court and the Special Court should not have taken cognizance of the offences. The view taken by the Special Court in the impugned order is that the criminal conspiracy is a stand-alone offence and no sanction is required to prosecute a public servant for an offence of criminal conspiracy; no matter such conspiracy is to commit an offence punishable under Section 13(2) of the PC Act. The learned counsel for the petitioner further would submit in this regard that although the offence put to trial is criminal conspiracy, the ingredients of an offence under Sections 13(1)(c) and 13(1)(d) of the PC Act are to be proved. The learned counsel for the petitioner further would submit in this regard that although the offence put to trial is criminal conspiracy, the ingredients of an offence under Sections 13(1)(c) and 13(1)(d) of the PC Act are to be proved. Moreover, the allegation being commission of offences under Sections 13(1)(c) and 13(1)(d) which are punishable under Section 13(2) of the PC Act, and the petitioner was also a privy to that, it is totally incorrect that its conspiracy aspect alone can be independently tried. According to the learned counsel, the petitioner cannot therefore be prosecuted without sanction. 6. The learned Special Public Prosecutor would point out that the Special Court is empowered to try non-public servants in the situations covered by Sections 3(1) and 4(3) of the PC Act. The question of sanction for taking cognizance does not arise in such situations. It is submitted that an offence of criminal conspiracy is independent of the main offence, although the ingredients of the main offences often transcend at a trial of its conspiracy. In the view of the learned Special Public Prosecutor, the impugned order does not require interference inasmuch as cognizance was taken only for the offences of conspiracy. 7. Another contention raised by the learned counsel for the petitioner is that the offence that would emerge against the petitioner from the averments in the final report is only a supervisory lapse and that would not amount to an offence under the PC Act. After referring to the allegations set forth in the final report, it is submitted that the petitioner sanctioned the loan based on the documents submitted before her, and she was not expected to go beyond and verify the correctness of such documents. Even if it may be able to say that there was violation of some departmental norms or procedure, that does not constitute an offence of criminal misconduct. When the materials would not show any dishonest intention on the part of the petitioner and obtainment of any material thing or pecuniary advantage, there can hardly be a prosecution for the offence under Section 13(1)(c) or 13(1)(d) of the PC Act and it is contended that for that reason, an offence of conspiracy cannot be hurled against the petitioner. 8. 8. The Apex Court in C.K.Jaffer Sharief v. State (Through CBI), [ (2013) 1 SCC 205 ] took the view that if in doing an act, the rules of norms applicable were violated or the decision taken shows an extravagant display of redundancy, that by itself would not indicate that it was actuated by a dishonest intention. In order to attract the offence, corrupt or illegal means and abuse of position as a public servant must be proved. In Surendranath C. v. State of Kerala , [ 2024(1) KLT 728 ] , this Court followed that view and held that dishonest intention is a sine qua non to attract an offence punishable under Section 13(2) of the PC Act. Acts of the accused which violate the rules and departmental norms would not amount to criminal misconduct unless there was dishonest intention on his part. In Manimekhala S. v. State of Kerala , [ 2024 (2) KHC 37 ] also this Court took an identical view and held that violation of any departmental norm or instruction would not result in the prosecution for offences under Section 13(1)(c) or 13(1)(d) of the PC Act. 9. In the facts of this case, the question that requires consideration is different. Going by the allegations in the final report, the petitioner was not only a privy to the criminal conspiracy but also having an active role in the commission of the offence inasmuch as she, allegedly, under influence sanctioned the loan without verifying the records. Thus the criminal conspiracy regarding which the Special Court took cognizance, fructified in commission of the main offence and the petitioner took a lead role in it as the person sanctioning the loan. In a case where conspiracy to commit an offence under the PC Act alone is the allegation and the accused had no active role in commission of the main offence, the view taken by the Special Court may be said to be correct. But in a case where an offence punishable under Section 13(2) of the PC Act is committed in furtherance of a criminal conspiracy, every conspirator who was party in actual commission of that offence is liable for trial not only for the conspiracy but also for the main offence. But in a case where an offence punishable under Section 13(2) of the PC Act is committed in furtherance of a criminal conspiracy, every conspirator who was party in actual commission of that offence is liable for trial not only for the conspiracy but also for the main offence. In such a case it is incorrect to try such a conspirator for criminal conspiracy alone leaving aside the offence under Section 13(2) of the PC Act. Contrary view will make the provisions of Section 19 of the PC Act nugatory. As rightly pointed out by the learned counsel for the petitioner a thing which cannot be done directly cannot be done indirectly also. That also is a reason to take the view that the petitioner cannot be tried for the offence of criminal conspiracy alone. 10. The learned Special Public Prosecutor conceded that the investigating agency, having had the view that sanction was required to prosecute the petitioner applied for sanction, but the competent authority declined sanction. Annexure-2 is that order. Thereafter the final report was filed without sanction. The Special Court took the view that no sanction was required to take cognizance of the offence alleged against the petitioner. As stated, the allegations in the final report make out ingredients of not only criminal conspiracy but also criminal misconduct defined under Section 13(1)(d) and punishable under Section 13(2) of the PC Act. In view of what are stated above, the order of the learned Special Judge taking cognizance of the offence of conspiracy alone is not able to be sustained in law. 11. Further, conspiracy to commit offences punishable under Sections 420, 468 and 471 of the IPC also has been alleged. The learned Special Judge did not consider whether or not cognizance of those offences could be taken. In view of the above, what the Special Court ought to have done was to return the final report to the investigating officer to take appropriate action in accordance with law. Impugned order is accordingly set aside. This Crl.M.C. is disposed of accordingly with a direction to take further action as mentioned hereinbefore.