The necessity of prior sanction under Section 197 Cr.P.C. is essential for prosecution of public servants involved in corruption; alteration of documents to bypass due process indicates collusion and misconduct.

ORDER :

A.BADHARUDEEN, J.

The 3rd accused in C.C. No.10/2015 on the of the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, has filed this criminal revision petition under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the order in Crl.M.P. No.1394/2023 dated 12.11.2024, whereby the plea of discharge raised by the 3rdaccused was negatived by the Special Court. The State of Kerala and the Superintendent of Police, Vigilance and Anti Corruption Bureau, Special Cell, Ernakulam, represented by the learned Public Prosecutor are the respondents herein. 

2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor, in detail. Perused the order under challenge as well as the relevant materials available.

3. In this matter, the prosecution case is that, A1 and A3 were the Chairman of Kerala State Electricity Board (hereinafter referred as ‘KSEB’ for short) 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 A11 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 official 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.2.538 Crore to KSEB and corresponding unlawful gain to A10 to A12. On this premise, the accused alleged to have committed offences punishable under Sections 13(1) (c) and 13(1)(d) read with Section 13(2) of the the Prevention of Corruption Act, 1988(hereinafter referred as ‘PC Act, 1988’ for short) as well as under Sections 109, 409, and 420 read with Section 120 B of the Indian Penal Code (hereinafter referred as ‘IPC’ for short).

4. While challenging the order negativing the plea of discharge at the instance of the revision petitioner/3^rd accused, the learned counsel for the revision petitioner argued two specific points to interfere in the order impugned. The first point argued is that, no prosecution is possible as against the revision petitioner without obtaining sanction under Section 197 of the Code of Criminal Procedure [hereinafter referred as ‘Cr.P.C.’ for short]. The second point argued is that, merely because the revision petitioner being the Chairman of the KSEB, alleged to have recommended a project to the “Government” instead of “Council of Ministers”, he could not be prosecuted, since the action was approved by the 5^th accused, who was the then Minister of KSEB and subsequently by the Council of Ministers though by circulation. The learned counsel for the revision petitioner has placed Rules of Business and the relevant paragraphs to substantiate that