IMPORTANT POINT
Prosecution of public servants for corruption does not require sanction when actions are not related to official duties.

ORDER :

A. Badharudeen, J.

This revision petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 , at the instance of the State of Kerala, aggrieved by discharge of the respondent, who is arrayed as the 2^nd accused in C.C. No.158 of 2016 on the files of the Court of the Enquiry Commissioner and Special Judge, Thalassery, as per the order dated 26.09.2018 in C.M.P. No.15 of 2016 in the above case.

2. Heard the learned Public Prosecutor representing the State of Kerala and the learned counsel appearing for the respondent, in detail. Perused the order impugned and the decisions placed by both sides.

3. Parties in this criminal revision petition shall be referred as ‘prosecution’ and ‘1^st, 2^nd and 3^rd accused’, hereafter.

4. In this matter, the prosecution case is that, the 1^st accused conspired and colluded with the 2^nd accused, who has been working as Scheduled Caste Development Officer, Kalpetta Block, and the 3rd accused, a document writer, with dishonest intention to misappropriate government fund meant for the scheme ‘Rehabilitation of Landless and Homeless Scheduled Caste People’ of the Scheduled Caste Development Department, implemented through the Block Development Office for Scheduled Castes, Kalpetta, forged two sale deeds on 09.02.2011 and eight sale deeds on 31.03.2011 with the connivance and assistance of the other accused and the 1^st accused created false documents showing his own land of three cents each at Pakkalippallam, comprised in RS No.295/9 of Kottappadi Village in Vythiri Taluk to 10 Scheduled Caste beneficiaries without the consent or knowledge of the prospective beneficiaries, at the rate of Rs.75,000/- per beneficiary. Thereby, the accused misappropriated Rs.7,50,000/- and obtained undue pecuniary advantage. On this premise, the prosecution alleges commission of offences punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred as ‘P.C. Act’ for short] and under Sections 409 , 420 and 468 read with 34 of the Indian Penal Code , by all the accused.

5. In this matter, the 1^st accused No.177/2016 and the 2nd accused filed C.M.P. No.6/2016 before the Special Court seeking discharge. The Special Court dismissed the discharge petition filed by the 1st accused and discharged the 2^nd accused as well as the 3^rd accused as per the impugned order.

6. While assailing the impugned order, it is pointed out by the learned Public Prosecutor that, the Special Court discharged the 2nd accused finding two reasons. The first reason found by the Special Court to discharge the 2nd accused is the non obtaining of sanction under Section 197 of Cr.P.C . to prosecute him. Secondly, the Special Court found that there was no allegation in the charge or any materials on record to the effect that the 2nd accused dishonestly or fraudulently misappropriated or otherwise converted for his own use any property entrusted to him or under his control as a public servant.

7. Insofar as the sanction under Section 197 of Cr.P.C . in relation to the 2^nd accused is concerned, the learned Public Prosecutor argued that, since the 2^nd accused is not a person, who holds a civil post under the Union or State, he could not be removed by an authority subordinate to the Government by which he was appointed and therefore, no sanction under Section 197 of Cr.P.C . is necessary to prosecute the 2^nd accused. In this connection, the learned Public Prosecutor placed decision of the Apex Court reported in [2023 KHC 6761 : 2023 (5) KHC SN 21 : 2023 KHC OnLine 6761] Sreenivasa Reddy A. v. Rakesh Sharma , with reference to paragraph Nos.40 and 41. The same