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2024 Supreme(Ker) 1495
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C. JAYACHANDRAN, J.
Sam John T. Thomas, S/o. T.T. Thankachan – Appellant
Versus
State Of Kerala – Respondent
Crl.M.C. No.6348 of 2023 & O.P.(Crl.) No.362 of 2024
Decided on : 15-10-2024
Advocate Appeared:
For the Appellant : RINNY STEPHEN CHAMAPARAMPIL, ASHA ELIZABETH MATHEW, NEENA ELISABATH ANTONY
For the Respondent: SRI.A.RAJESH, SPECIAL PUBLIC PROSECUTOR (VIGILANCE), SMT.REKHA S., SENIOR PUBLIC PROSECUTOR
IMPORTANT POINT
The Special Court has the authority to order further investigation in cases involving offences under the Penal Code intertwined with the Prevention of Corruption Act, and the absence of prosecution sanction does not invalidate the ongoing investigation.
Headnote:
(A) Prevention of Corruption Act, 1988 - Section 19 - Criminal Procedure Code, 1973 - Section 197 - Criminal Procedure (Identification Act, 2022) - Further investigation ordered by Special Court - Petitioners challenge the validity of the final report due to lack of sanction under the P.C. Act and the Criminal Procedure Code - Court held that further investigation renders the finality of the report lost and infirmities can be cured - Ext.P9 order allowing further investigation is upheld. (Paras 7, 10, 14)
(B) Powers of Special Court - Special Court can order further investigation in respect of offences under the Penal Code interwoven with P.C. Act offences - Challenge to the Special Court's authority to conduct further investigation is repelled. (Para 10)
(C) Criminal Procedure (Identification Act, 2022) - Applicability of the Act discussed - Court finds no legal impediment in applying the Act to ongoing investigations. (Paras 11-15)
Facts of the case:
The petitioners challenged the final report filed against them for offences under the Penal Code, arguing that they were public servants requiring sanction to be prosecuted under the P.C. Act, which was denied. The prosecution alleged conspiracy to manipulate staff fixation and issue bogus transfer certificates. (Paras 3-4)
Findings of Court:
The Court endorsed the Special Public Prosecutor's submission that the final report's infirmities may be cured by further investigation, and the report would merge with the outcome of that investigation. (Paras 7-8)
Issues: Whether the petitioners can be prosecuted without sanction under the P.C. Act and if the Special Court has the authority to order further investigation. (Paras 4, 10)
Ratio Decidendi: The Court ruled that the Special Court has the authority to order further investigation, and the final report's validity is contingent upon the outcome of that further investigation. (Paras 7, 10)
Result: Criminal Miscellaneous Case and Original Petition dismissed.
Key Points
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The petitioners challenged the final report (Annexure-F) in C.C. No.1/2023 before the Special Court, Kottayam, arguing lack of sanction under Section 19 of the P.C. Act and Section 197 Cr.P.C. for public servants, and that prosecution for Penal Code offences alone before the Special Court is invalid. (!)
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Prosecution alleged conspiracy to manipulate staff fixation by issuing bogus transfer certificates and creating fictitious admissions to prevent division fall and gain pecuniary advantage, involving offences under P.C. Act Sections 13(1)(d), 13(2) and IPC Sections 465, 120B. (!)
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Special Public Prosecutor argued that further investigation ordered via Ext.P9 renders the final report non-final, allowing cure of infirmities like sanction issues, with options for fresh sanction applications or transfer to jurisdictional court. (!)
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Court held that further investigation under Section 173(8) Cr.P.C. via Ext.P9 eliminates finality of the original final report; infirmities can be addressed in the supplementary report, into which the original merges. (!)
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Challenge to Annexure-H circular's applicability rejected, as further investigation provides avenues to address Section 197 Cr.P.C. sanction needs post-investigation. (!)
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Special Court under P.C. Act Section 4(3) has authority to order further investigation for interwoven Penal Code offences (e.g., Section 465 IPC) with P.C. Act offences, triable together under Cr.P.C. (!)
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Criminal Procedure (Identification) Act, 2022 applies to ongoing investigations commenced before but continued after its enactment (Ext.P9 dated 06.12.2022), as procedural and no legal bar exists. (!)
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Section 5 of the 2022 Act empowers Magistrate to direct "any person" (not limited to arrested persons unlike Section 3) to provide measurements (e.g., specimen handwriting/signature) for investigation under Cr.P.C., without arrest precondition. (!)
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Section 311A Cr.P.C. proviso requiring arrest does not limit 2022 Act Section 5, which consciously omits such condition to preserve Magistrate's powers. (!)
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Petitions challenging final report, Ext.P9 (further investigation), and Ext.P13 (specimen directions) dismissed; contentions left open for final report post-further investigation, except those concluded. (!) (!)
ORDER :
The first Criminal Miscellaneous Case is preferred challenging Annexure-F Final Report, based upon which C.C. No.1/2023 is pending consideration of the Special Court, Kottayam. The Original Petition second above referred is one challenging Ext.P9 and P13 orders, the first of which permits the prosecution to conduct further investigation in C.C.No.1/2023 and another Calendar Case under Section 173(8) Cr.P.C; and the second, directing the petitioner to appear before the Investigating Officer to give the specimen signature and hand writing.
2. Heard the learned counsel for the petitioners in both these matters and the learned Special Public Prosecutor (Vigilance).
3. Accused nos.2 to 8, 10 and 12 in Crime No.02/2014/ERK of Vigilance and Anti-Corruption Bureau Eastern Range, Kottayam are the petitioners in Crl.M.C. No.6348 of 2023. The prosecution case centers around the allegation that the accused persons have criminally conspired, with malafide intention, to manipulate the staff fixation done by the Education Department and fraudulently issued bogus transfer certificate in the name of twelve fictitious students, utilising which, the second accused fabricated twelve bogus admissions. In the name of twelve other students, who were studying in the K.G. Section, bogus admissions were created, thus creating 24 bogus/fictitious pupil altogether during the academic year 2009-2010. The whole exercise was to prevent the division fall, so as to enable accused nos.7 and 12 to continue in their job and to obtain pecuniary advantage illegally, thus committing the offences under Section 13(1)(d), read with Section 13(2), of the Prevention of Corruption Act (‘P.C. Act’, for short) and also, under Sections 465 and 120B of the Indian Penal Code, 1860 (‘Penal Code’, for short).
4. Learned counsel for the petitioners would point out that in Annexure-F Final Report, the petitioners are charge sheeted only for offences punishable under Sections 465, 471, 120B and Section 34 of the Penal Code, whereas the first accused is charge sheeted for offences under Section 13(1)(d), read with Section 13(2) of the P.C. Act, along with other cognate offences under the Penal Code. The thrust of the argument advanced by the learned counsel for the petitioner is that, in respect of offences under the Penal Code only, the petitioners cannot be prosecuted before the Special Court. Sanction sought for to prosecute the petitioners under Section 19 of the P.C. Act stands declined, vide Annexure-G. Learned counsel would emphasise that a sanction in terms of Section 19 of the P.C. Act is a sine qua non to prosecute the petitioners, who are admittedly public servants, at the time of commission of offences, wherefore, the present final report as against the petitioners only for offences under the Penal Code, but before the Special Court, is legally flawed. It was then pointed out that Annexure-H circular relied upon by the prosecution to file Annexure-F final report is applicable only in cases where sanction under Section 197 Cr.P.C. is not required. In the instant case, learned counsel would rely upon Section 12(2) of the Kerala Education Act to argue that previous sanction from the Government is required for dismissal or removal of the petitioners, wherefore sanction under Section 197 is required. Annexure–H circular cannot therefore be relied upon to give a final report as Annexure–F, for which reason also, Annexure–F final report cannot be sustained. On such premise, Annexure-F final report is sought to be quashed.
5. In answer to the above contention, learned Special Public Prosecutor (Vigilance) would submit that, as per Ext.P9 order produced in the connected Original Petition, the Special Court has permitted to conduct further investigation in C.C.No.1/2023, wherefore, the investigation cannot be deemed to be complete and the technical infirmities with respect to Annexure-F final report cannot loom large, so as to entail quashment of the same.
6. Learned Special Pu
