IMPORTANT POINT
Cognizance of conspiracy does not negate the requirement for sanction under the Prevention of Corruption Act when the accused is involved in the commission of the main offence.

ORDER :

The petitioner is the accused in C.C. No.8 of 2023 pending before the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram. The Special Court as per the order dated 27.02.2023 took cognizance of the offence punishable under Section 120B of the Indian Penal Code, 1860 ( IPC ) read with Sections 13(1)(c) and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act). The petitioner assails the said order in this petition filed under Section 482 of the Code of Criminal Procedure, 1973 (Code).

2. Annexure-3 is the final report filed by the Vigilance and Anti-Corruption Bureau (VACB), Special Investigation Unit-I, Thiruvananthapuram. The said final report was filed in Crime No.5/13/SIU-I. There were 10 accused in the crime. A final report was initially filed excluding the petitioner, who was the 1^st accused, based on which C.C.No.25 of 2020 was initiated. The prosecuting agency applied for sanction to prosecute the petitioner, she being a public servant as defined in Section 2(c) of the PC Act. The competent authority declined sanction vide Annexure-2 order. It was thereafter Annexure 3 final report was filed requesting to prosecute the petitioner for the offences punishable under Section 120B read with Sections 13(1)(c) and 13(1)(d) read with Section 13(2) of the PC Act, and also Section 120B read with Sections 420, 468 and 471 of the IPC . The Special Court considered whether cognizance could be taken in respect of the offences alleged against the petitioner even without a sanction under Section 19(1) of the PC Act. The Special Court, after considering the matter in detail, held as per the impugned order that cognizance could be taken for the offences under Section 120B of the IPC read with Section 13(2) of the PC Act.

3. Heard the learned counsel for the petitioner, the learned Senior Public Prosecutor and the Special Public Prosecutor (Vigilance).

4. The allegations set forth against the petitioner and her co-accused are summarised below:

The 1st accused/petitioner was the managing director of the Kerala Transport Development and Financial Corporation (KTDFC). Sri.Vinod S.Nair availed a loan of Rs.22,68,329/- from KTDFC. A conspiracy was allegedly hatched among the accused to illegally avail that loan. A landed property belonged to witness Nos.2 to 5 was mortgaged to a nationalized bank. The 6^th accused obtained a power of attorney to sell that property. He executed a sale deed in favour of the 5^th accused, who in turn executed an agreement for sale in favour Sri.Vinod S.Nair. He availed the loan purportedly for the purchase of that property. In doing so the sale of the property in favour of the 5^th accused and the mortgage in favour of the bank were suppressed. It is also alleged that as a result of the conspiracy, witness Nos.2 to 5 were made to execute the power of attorney in the name of the 6^th accused on 17.02.2005 and executed the sale deed in favour of 5^th accused. The further allegation is that in pursuance of the conspiracy accused Nos.1 to 5 being the Managing Director and other public servants of KTDFC sanctioned the loan without proper verification of the documents and surpassing the mandatory procedure contemplated for processing the loan application. It is further alleged that the loan application and other documents were prima facie insufficient for granting the loan. The loan amount therefore has become irrecoverable.

5. The learned counsel for the petitioner would submit that having the request for prosecuting the petitioner been declined, the final report should not have been filed before the Special Court and the Special Court should not have taken cognizance of the offences. The view taken by the Special Court in the impugned order is that the criminal conspiracy is a stand-alone offence and no sanction is required to prosecute a public servant for an offence of criminal conspiracy; no matter such conspiracy is to commit an offence punishable under Section 13(2) of