Accused public servants require prosecution sanction under Section 197 of CrPC; such issues should be resolved at trial rather than during discharge motions.

ORDER :

1. The revision petitioner who is aggrieved by order dated 12th November 2024 passed by the Enquiry Commissioner and Special Judge Thiruvananthapuram in C.C. No. 10 of 2015, has preferred this revision. According to the revision petitioner, who is the 1st accused in this case, discharge plea raised by the 1st accused on the ground that there was no sanction obtained under Section 197 Code of criminal procedure (for short, ‘CrPC') was negatived by the special judge without valid reasons. The respondent is the State of Kerala represented by VACB.

2. In this matter, the prosecution alleges commission of offences punishable under Section 13 (1)(c) and (d) read with Section 13 (2) of the the Prevention of Corruption Act, 1988 (for short ‘PC Act’ hereafter) as well as under Sections 109, 409, and 420 read with Section 120 B of the Indian Penal Code by the accused.

3. The prosecution case is that, A1 and A3 were the Chairman of Kerala State Electricity Board (for short the KSEB) at the relevant time. A2, A7 and A8 were members of the Board of Directors and A4 and A9 were the employees of the KSEB. A5 was the Minister for Electricity in the State Cabinet at the relevant time. A6 was the General Manager, M/s. ATV Projects India Ltd, which was an Indian collaborator of M/s. S.E.M.T Pielstick, a French company, arrayed as A12 herein. A10 was the Chairman and All was the Manager of A12 company. The specific allegation is that A1 to A5 and A7 to A9 while holding different posts in KSEB as public servants at different times since 1991, with dishonest and fraudulent planning for securing a purchase contract in favour of A10 to A12, for purchase of five Diesel Power Generator sets, auxiliaries and other accessories for the proposed Brahmapuram Diesel Power Plant (for short BDPP) in Brahmapuram, which is a project of KSEB. The further allegation is that the above accused persons intentionally omitted to invite global tenders or limited global tenders or tenders by adopting corrupt and illegal means and without any public interest, they intentionally committed to perform public duty by abusing their ofÏcial positions and secured the contract in favour of A10 to A12 by purchasing Diesel Power Generator and accessories at an escalated price causing a loss of Rs.4,70,000/- to KSEB and corresponding unlawful gain to A10 to A12.

4. The learned counsel for the 1st accused/revision petitioner pointed out that in this matter without obtaining sanction under Section 197 of CrPC, no cognizance or prosecution is permissible as far as the petitioner is concerned, who worked as the Chairman of the KSEB during the period. In this connection, the learned counsel for the 1st accused relied on Section (5)(1) and (2) and subclause (5) along with Section 10 of the Electricity (Supply) Act 1948. According to the learned counsel for the revision petitioner reading the above provision, it is crystal clear that the Chairman of the KSEB will be appointed by the Government and removable by the Government. Therefore the special court wrongly found that no sanction under Section 197 of CrPC is required to prosecute the petitioner. According to the learned counsel for the revision petitioner since no prosecution is permissible as against the petitioner for want of sanction under Section 197 of CrPC the petitioner is entitled to get discharge. Accordingly he sought interference in the order impugned.

5. Dispelling this contention the learned public prosecutor placed a decision of this Court reported in Padmarajan C.V. v. Government of Kerala and Others, 2009 (1) KHC 65 where the petitioner herein also is one among the writ petitioners. In fact, in this decision this court considered two writ petitions filed by the 5th accused (Sri.C V Padmarajan) and the present petitioner who is the 1st accused (R Narayanan). According to the learned public prosecutor as per Paragraph No.13 of judgment this court appraised the contention regarding want of sanction and found that “As fa