IMPORTANT POINT
The court ruled that prior approval under Section 17A of the Prevention of Corruption Act is not required for investigating allegations of corruption in educational institutions, emphasizing the definition of public duty.

JUDGMENT :

K. Babu, J.

The prayers in this writ petition are as follows:-

“i) To issue a Writ of Certiorari and quash Exhibit P5 order/communication of the 3rd respondent as illegal, arbitrary and without jurisdiction.

ii) To issue a Writ of Mandamus commanding the 1st and 2nd respondents to register FIR and commence investigation forthwith upon Exhibit-P1 petition without waiting for previous approval contemplated under section 17A of the Prevention of Corruption Act.

iii) To dispense with filing of the translation of vernacular documents.

iv) To issue any other writ, orders or directions as this Hon’ble Court may deem fit on the facts and circumstances of the case.”

2. The petitioner seeks enquiry/investigation into the allegations of misappropriation and corruption in the educational institution by the name ‘Nazreth Pharmacy College’. The petitioner alleges a conspiracy among the members of a charitable society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, which runs the college. The petitioner arraigned nine persons as suspects in Ext.P1 complaint submitted before the Director of Vigilance. It is alleged that the suspected persons, in furtherance of their common intention, denied admission to eligible students in the Pharmacy College in the seats allotted to the Government and sold the said seats to private students after receiving a huge capitation amount and misappropriated the amount so obtained to their credit causing wrongful loss to the society and wrongful monetary gain to them. It is further submitted that the above-said acts are in violation of the provisions of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee & Other Measures to Ensure Equity & Excellence in Professional Education) Act, 2006. They are alleged to have committed offences punishable under Section 5 read with Section 15 of the Act, Section 13 of the Prevention of Corruption Act, 1988 and Sections 406 and 409 of the Indian Penal Code.

3. When the Vigilance and Anti-corruption Bureau (VACB) refused to take action on the complaint, the petitioner filed a complaint before the Court of Enquiry Commissioner and Special Judge, Kottayam, under Sections 190 and 200 of the Code of Criminal Procedure and prayed for conducting an inquiry under Section 202 Cr.P.C. or for a direction to conduct investigation under Section 156(3) Cr.P.C. After hearing the learned counsel for the petitioner and the Legal Advisor for the VACB, the Special Judge posted the matter for report from the VACB. The VACB took the stand that as approval under Section 17A of the Prevention of Corruption Act, 1988 (‘the PC Act') is required, they are not in a position to enquire or investigate into the allegations.

4. The petitioner thereafter filed an application seeking investigation under Section 156(3) Cr.P.C. The Special Court dismissed the prayer and adjourned the matter, instructing the petitioner/complainant to produce Section 17A approval under the PC Act from the competent authority. The Vigilance submitted an application seeking prior approval from the competent authority. The Government, on that application, decided that as the allegations are pending consideration of the Admission Supervisory Committee for Medical Education, no vigilance enquiry is required in the matter.

5. The petitioner essentially challenges the legality of the order passed by the Government (Ext.P5).

6. I have heard the learned counsel for the petitioner and the learned Special Government Pleader (Vigilance).

7. The learned counsel for the petitioner submitted that though this educational institution is managed by a society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, as the Director Board members are ‘public servants’ they discharge ‘public duty’ as defined in the P.C. Act. The learned counsel further argue