IMPORTANT POINT
Prior sanction is mandatory for investigating public servants under the Prevention of Corruption Act, distinguishing between investigation and cognizance stages.

ORDER :

1. The challenge in this Crl. M.C. is to the common order dated 17.06.2022 in Crl. M.P. Nos. 60 and 318 of 2021 passed by the Court of the Enquiry Commissioner and Special Judge, Kottayam.

2. The petitioner filed a complaint as Crl. M.P. No. 60 of 2021 before the Special Judge, arraying respondent Nos. 2 to 10 as accused, alleging that they illegally collected capitation fee for admitting students to Nazareth Pharmacy College run by the Nazareth Ashramam Society. The petitioner alleged that respondent Nos.2 to 10discharge public duty, and hence, they fall within the purview of 'Public Servant' as defined under Section 2(viii) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the PC Act 1988’). The petitioner alleged that respondents 2to 10 committed offences punishable under Section13 of the PC Act 1988, Sections 406 and 409 of the IPC and Section 5 read with Section 15 of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006. The petitioner requested the Special Judge to order investigation under Section 156(3) of the Code by filing a separate application as Crl. M.P. No. 318 of 2021.

3. The Special Judge dismissed the application, observing that the alleged act of collection of capitation fee and its misappropriation cannot strictly be said to be not relating to are commendation or decision taken while discharging the functions of the Nazareth Ashramam and Pharmacy College and hence prior approval of the competent authority under Section 17-A of the PC Act, 1988 is necessary for ordering an inquiry or investigation in to the allegations in the complaint.

4. The operative portion of the order reads thus:

“In the result, Crl. M.P. No. 318/2021, seeking to forward the complaint under Section 156(3) Cr.P.C. for investigation, is dismissed. The private complaint Crl. M.P. No. 60/2021 is adjourned for producing approval of the competent authority under Sec. 17A of the Prevention of Corruption Act, 1988.”

5. As per the impugned order, the question of whether respondent Nos. 2 to 10 come within the definition of public servants and are liable to be prosecuted under the penal provisions of the PC Act1988 was deferred to be considered at an appropriate stage.

6. The Special Judge relying on Anil Kumar and Ors. v. M.K. Aiyappa and Anr. 2013 (4) KLT 125 (SC) : (2013) 10 SCC 705, L. Narayana Swamy v. State of Karnataka and Ors. AIR 2016 SC 4125, Manju Surana v. Sunil Arora, (2018) 5 SCC 557, Muhammed V.A. and Ors. v. State of Kerala and Ors. 2019 (1) KLT 156 : 2019 (1) KHC 239 and Shylaja P. v. Vigilance & Anti Corruption Bureau Director and Others, 2021 (2) KLT 294 : 2021 (2) KHC 11 held that in the absence of sanction under Section 19(1) of the P.C. Act, the court could not have for warded the complaint under Section 156(3) of the Code for investigation. The learned Special Judge further held that approval of the competent authority as provided under Section 17-A of the P.C. Act is apre-requisite for directing an investigation.

7. I have heard the learned counsel for the petitioner Sri. Sooraj Thomas, the learned Special Government Pleader (Vigilance) Sri. A. Rajesh and the learned Amicus Curiae Sri. M.K. Sreegesh.

8. The learned counsel for the petitioner submitted that the court below ought to have forwarded the complaint for investigation under Section 156(3) of the Cr.P.C. as sanction under Section 19 of the P.C. Act is applicable only at the time of taking cognizance of the offences by the court and the decision to order investigation under Section 156(3) is at a pre-cognizance stage. The learned counsel for the petitioner submitted that the question of approval comes into play only when the alleged offences are relatable to any recommendation made or decision taken by the public servant in discharge of his public functions or duty. The lear