Point of Law: Section 19(1) of PC Act says that no court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with previous sanction of competent authority..

JUDGMENT :

Ext.P6 common order passed by the Enquiry Commissioner and Special Judge, Kozhikode (for short, “the court below”) forwarding the private complaints to the VACB, Kozhikode, for investigation u/s 156(3) of Cr.P.C. is under challenge in this Original Petition.

2. Four private complaints with identical allegations were filed by respondents Nos.3 to 6 against the petitioners and several others before the court below, alleging that they have committed the offences punishable under sections 468, 471 and 120B of IPC r/w sections 7, 8, 10 and 13(1) of the Prevention of Corruption Act, (for short, 'the PC Act').

3. The petitioners are the owners of Ashirvad Lawns and M/s Aiswarya Arcade situated at Karaparamba, Kozhikode. They were arrayed as the accused Nos.8 to 11 in all the four complaints. The accused Nos.1 to 4 and 7, the officers of the Kozhikode Corporation, are public servants. The accused No.5 was an officer of the Kozhikode Corporation and has now retired from service. The accused No.6, the Regional Fire Officer, Kozhikode, is also a public servant. The allegation set out in all the complaints is that the petitioners, along with the remaining accused, hatched a criminal conspiracy and, in pursuance of the conspiracy so hatched, put-up construction in wetlands unauthorizedly and illegally and in violation of the Kerala Building Rules. It is further alleged that when the direction was given to the petitioners to demolish the building, corporation officials filed a false report to the effect that the building was demolished though it was not demolished. According to the complainants, the accused committed forgery, falsification of documents and criminal misconduct.

4. The court below called for a preliminary enquiry report from VACB, Kozhikode. Accordingly, the Deputy Superintendent of Police, VACB, Kozhikode, conducted a preliminary enquiry and filed Ext.P5 report. The enquiry officer found that the allegations in the complaints are not fully correct. He concluded that there was laches on the part of the officers of the corporation. There is no finding in the report that any criminal offence was committed by any officials. However, the court below, on perusal of the report and connected documents, concluded that there are materials to show criminal misconduct on the part of the corporation officials and the creation of false documents in connivance with the accused Nos.8 to 11. Accordingly, complaints were forwarded to the Station House Officer, VACB, Kozhikode, for registration of the crime and investigation u/s 156(3) of Cr.P.C. as per the impugned order.

5. I have heard Sri.M.Asokan, the learned counsel for the petitioners, Sri.A. Rajesh, the learned Special Public Prosecutor for VACB and Sri.R.Muraleedharan, the learned counsel appearing for respondents 3 to 6.

6. The learned counsel for the petitioners placing reliance on the decisions of the Apex Court in Anil Kumar and Others v. M.K.Aiyappa and Another (2013 KHC 4790) and in L.Narayana Swamy v. State of Karnataka and Others [(2016) 9 SCC 598] argued that prior sanction for prosecution against a public servant is necessary u/s 19 of the PC Act before setting in motion even the investigation process under section 156(3) of Cr.P.C. The learned Special Public Prosecutor endorsed the said view. Per contra, the learned counsel, Sri.R.Muraleedharan appearing for respondents 3 to 6, submitted that section 19 of the PC Act mandates sanction only at the time of taking cognizance and no sanction is necessary while the court exercises its jurisdiction under section 156(3) of Cr.P.C which is a precognizant stage. The counsel further submitted that since gross misconduct, criminal conspiracy, and falsification of documents are alleged against the public servants, there is no necessity for previous sanction as envisaged under section 19 of the PC Act. He has placed reliance on the decision of the Apex Court in Station House Officer, CBI/ACB/Bangalore v. B.A.Srinivasan and Another