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2025 DIGILAW 760 (KER)

E. M. ABDUL AZEEZ v. STATE OF KERALA

2025-03-27

P.G.AJITHKUMAR

body2025
ORDER : The petitioners are the accused in C.C.No.12 of 2021 pending before the Court of Enquiry Commissioner and Special Judge, Kozhikode (crime No.4/2015/NRK of the Vigilance and Anti-Corruption Bureau, Kozhikode). They seek to quash the proceedings in C.C.No.12 of 2021. 2. Heard the learned Senior Counsel, appeared on instructions, for the petitioners, the learned Senior Public Prosecutor and the learned Special Public Prosecutor (Vigilance). 3. The offences alleged against the petitioners are punishable under Section 13 (1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (PC Act) and Sections 120B and 465 of the Indian Penal Code, 1860 ( IPC ). The 1 st petitioner was the Secretary of Ramanattukara Grama Panchayat from 15.12.2011 to 17.12.2014. The 2 nd petitioner was the Assistant Engineer, LSGD Section, Ramanattukara Grama Panchayat during the period from 10.08.2012 to 06.08.2015. The 3 rd petitioner was an L.D.Clerk at the Ramanattukara Grama Panchayat. The 4 th petitioner was the Assistant Engineer, LSG Department, Ramanattukara Grama Panchayat during the period from September, 2009 till May, 2012. The 5 th petitioner owned a building within the local limits of the said Grama Panchayat. Petitioners No.6 and 7 were licensed building supervisors. The allegation against the petitioners are that in furtherance of a criminal conspiracy hatched among them, the first floor of the building belonging to the 5 th petitioner was constructed illegally and styling it as a commercial building comprising shop rooms. Later, the second floor was constructed based on a fake building plan. Four residential units were included in the second floor. Without completing the construction, its assessment was completed and building numbers were assigned. A false completion certificate was submitted in order for getting the building numbered. The petitioners allegedly had done so with dishonest intention of gaining pecuniary advantage. 4. The contentions of the petitioners are that without obtaining proper sanction, prosecution was initiated, and cognizance was taken by the court. The learned Senior Counsel for the petitioners would submit that sanction under Section 19(1) of the PC Act was accorded not by the competent authority and that no sanction under Section 248 of the Kerala Panchayat Raj Act, 1994 was obtained. The further submission is that the materials produced by the prosecution do not make out any criminal offence but, the Special Court, without applying mind, took cognizance of the offences. 5. The further submission is that the materials produced by the prosecution do not make out any criminal offence but, the Special Court, without applying mind, took cognizance of the offences. 5. The learned Senior Counsel for the petitioners would submit further that the law laid down in Anil Kumar v. M.K. Aiyappa [ (2013) 10 SCC 705 ] was blatantly violated. It is submitted that petitioners No.1 and 3 being Secretary and a staff member of the Grama Panchayat respectively, sanction from the Government as insisted on by Section 248 of the Panchayat Raj Act should have been obtained. It is also submitted that the investigation was vitiated for want of obtaining previous approval from the competent authority as insisted on by Section 17A of the PC Act. 6. The learned Special Public Prosecutor would submit that sanction to prosecute petitioners No.1 and 3 was obtained from the Director of Panchayats, who is witness No. 29, and in the case of petitioners No.2 and 4 sanction was obtained from the Chief Engineer, who is witness No.30. When valid sanctions in terms of Section 19(1) of the PC Act were obtained, there is no requirement of obtaining a permission under Section 248 of the Panchayat Raj Act. In regard to the previous approval as envisaged in Section 17A of the PC Act, it is submitted that having the crime been registered as early as on 22.01.2015, the said provision cannot have application. Upon the merits of the case, it is submitted that submission of false documents and assignment of building number for unauthorised constructions, that too, before completion are substantiated by the materials produced by the prosecution. Thus, it is submitted by the learned Special Public Prosecutor that none of the grounds urged by the petitioners can be reckoned with to quash the proceedings. 7. Section 17A was inserted in the PC Act with effect from 26.07.2018. The crime was registered as early as on 22.01.2015. When Section 17A was not in existence at that time, one cannot insist that the said provision should have been complied with. That is an impossibility. The law in existence as on the date of commencement of the enquiry/ investigation could only be followed. Therefore, the contention that the provisions of Section 17A of the PC Act have been violated is without any reason. 8. That is an impossibility. The law in existence as on the date of commencement of the enquiry/ investigation could only be followed. Therefore, the contention that the provisions of Section 17A of the PC Act have been violated is without any reason. 8. In order to prosecute a public servant coming within the purview of Section 2(1)(c) of the PC Act, sanction from the competent authority under Section 19(1) is mandatory. In Anil Kumar (supra) it was held unequivocally that sanction should be obtained before taking cognizance. Section 19(1)(b) of the PC Act provides for obtaining sanction to prosecute public servants employed in connection with the affairs of the State. If such an employee is removable by the order of the Government alone, the authority to accord sanction is the Government. In the case of other public servants, sanction by the authority competent to remove them is insisted on by clause (c) of sub-Section (1) of Section 19 of the PC Act. 9. Director of Panchayats granted sanction to prosecute petitioners No.1 and 3, who are the Secretary and L.D.Clerk in the Ramanattukara Grama Panchayat. Witness No.29 is the Director. He being the authority competent to remove petitioners No.1 and 3 from service, he is the competent authority to accord sanction. Similarly, petitioners No.2 and 4, Assistant Engineers are removable by the Chief Engineer. Going by the statement of witness No.30, who is the Chief Engineer, he is competent to grant sanction to prosecute petitioners Nos.2 and 4 under Section 19(1) of the PC Act. Therefore, there is valid sanction under Section 19(1) of the PC Act to prosecute petitioners Nos.1 to 4. Petitioners No.5 to 7 are non-public servants. 10. As per Section 248 of the Panchayat Raj Act in order for taking cognizance of an offence committed by the President, Vice-President, Chairman of the Standing Committee or a member of the Panchayat or the Secretary or other employees of a Panchayat, who is removable from his office save by or with the sanction of the Government for an offence committed while acting or purporting to act in the discharge of his official duty, previous sanction of the Government is required. An offence of criminal misconduct punishable under Section 13(2) of the PC Act or an act of forgery cannot be said to be an act while in discharge of an official duty. An offence of criminal misconduct punishable under Section 13(2) of the PC Act or an act of forgery cannot be said to be an act while in discharge of an official duty. Even if it is taken that the act in question was done by purporting to act in discharge of official duty, obtaining of previous sanction under Section 248 of the Panchayat Raj Act does not arise for prosecuting the officials for the offences under the PC Act. 11. This Court in Sivadasan Pillai and others v. State of Kerala and others [ 2019 (4) KHC 529 ] after considering the relative legislative powers of the Centre and the State and the method of resolution contained in Article 251 of the Constitution of India in the event of conflict between the Central and State statutes, it was held that a prosecution under the provisions of the PC Act must be governed by that Act itself. Such a prosecution cannot be controlled by the provisions of any special or local law by way of protection or immunity from prosecution. A public servant facing prosecution under the PC Act cannot therefore resort to a provision in any other special or local law to claim protection from prosecution. Therefore, the contention that the cognizance taken against the petitioners is bad for want of sanction is not able to be countenanced. 12. As regards the contention that sanction under Section 197 of the Code of Criminal Procedure, 1973 (Code) was also required since one of the offences is under Section 465 of the IPC , the law laid down by the Apex Court in Shreekantiah Ramayya Munipalli v. State of Bombay [ AIR 1955 SC 287 ] gets application. It was held that offences of criminal conspiracy punishable under Section 120B read with Section 409 of IPC and also Section 5(2) of the PC Act, 1947 cannot be said to be of the nature mentioned in Section 197 of the Code. To put it shortly, it is not part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code is, therefore, no bar. Therefore, the said contention also is not able to be accepted. 13. To put it shortly, it is not part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code is, therefore, no bar. Therefore, the said contention also is not able to be accepted. 13. Although it is contended that the materials produced by the prosecution are insufficient to make out commission of the offences alleged therein, I am unable to accept the said contention at this stage. The statements of witnesses and records produced by the prosecution would prima facie substantiate the allegation. In view of what are stated above, the plea of the petitioners seeking quashment of the further proceedings in C.C.No.12 of 2021 on the files of the Court of Enquiry Commissioner and Special Judge, Kozhikode can only be rejected. I do so. The petition is therefore dismissed.