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2021 Supreme(Online)(KER) 37847
HIGH COURT OF KERALA
R. NARAYANA PISHARADI, J
SHANAVAS PAZHOOR – Appellant
Versus
STATE OF KERALA – Respondent
Crl.Rev.Pet/1043/2017
SRI.S.RAJEEV, SRI.K.K.DHEERENDRAKRISHNAN, SRI.D.FEROZE, SRI.V.VINAY
The court established that lack of sanction under the Prevention of Corruption Act voids cognizance of charges against accused public servants, especially if they are no longer public servants at the time of prosecution.
Headnote:
Corruption - Accused Discharge - Prevention of Corruption Act, 1988, Section 19(1); Code of Criminal Procedure, 1973, Section 239 - The court found that lack of sanction under the Prevention of Corruption Act voids cognizance; discharge granted as petitioner ceased to be public servant at trial time.
Fact of the Case:
The petitioner, an accused in a corruption case involving misappropriation in a cooperative bank, challenged the legality of charges against him after failing to secure necessary prosecution sanction when he was a public servant.
Finding of the Court:
The court concluded that the prosecution's cognizance was invalid due to the absence of necessary sanction under the Act, and since the petitioner was no longer a public servant at the time of the subsequent charge-sheet, the case could not proceed.
Issues: Whether the second charge-sheet against the petitioner was valid without sanction under Section 19(1) of the Prevention of Corruption Act, given that he was no longer a public servant when cognizance was taken.
Ratio Decidendi: It was determined that failure to obtain necessary sanction invalidates cognizance, and since the petitioner had ceased to be a public servant, prosecution under the same facts was impermissible.
Final Decision: The petitioner is discharged from the charges against him.
O R D E R
The petitioner is Accused No.9 in the case C.C.No.87/2008 pending in the Court of the Enquiry Commissioner and Special Judge, Kottayam.
2. The offences alleged against the accused in the above case are punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and also under Sections 409, 468, 471, 477A and 120B of the Indian Penal Code.
3. The first accused in the case was the President of the Thiruvarppu Village Service Co-operative Bank Limited (hereinafter referred to as 'the Bank'). Accused 2 to 7 and 9 were members of the Director Board of the Bank. Accused No.8 was the Secretary of the Bank.
4. The prosecution case is as follows: A paddy procurement programme was implemented in the Bank in the year 1995 for the purpose of helping farmers. The accused hatched a conspiracy to misappropriate the money intended for implementing the aforesaid programme. Pursuant to such conspiracy, accused 2 to 7 purchased paddy and produced bogus purchase notes showing purchase of larger quantity of paddy than the actual purchase made. The bogus purchase notes were prepared with the assistance of Accused No.9. Accused 1 and 8 also assisted the other accused in committing the financial irregularities. The accused misappropriated a total amount of Rs.9,52,866.95/-.
5. The case was originally pending in the Court of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur as C.C.No.23/2000. When the trial of the case was in progress before that court, after examination of 11 witnesses by the prosecution as PW1 to PW11, the Public Prosecutor filed an application under Section 321 of the Code of Criminal Procedure, 1973 (for short 'the Code') for granting permission to withdraw from the prosecution. The reason for filing such an application was that there was no sanction for prosecution under Section 19 (1) of the Act against accused 1 to 7 and 9 who were public servants. Sanction for prosecution had been obtained only against Accused No.8.
6. As per Annexure-I order dated 11.10.2002, the Court of the Enquiry Commissioner and Special Judge, Thrissur allowed the aforesaid application filed by the Public Prosecutor and granted permission to the prosecution to withdraw the case.
The operative portion of this order reads as follows:
“In the result the CMP is allowed and the prosecution is permitted to withdraw the case on account of the impropriety in the sanction order obtained, with liberty to file fresh charge and after obtaining proper sanction from the competent authority against the accused. In the present case, the accused shall stand discharged and it is made clear that the order of discharge would not in any way bar initiation of fresh prosecution with proper sanction. Ordered accordingly.”
7. Thereafter, a fresh charge-sheet against the accused was filed in the Special Court at Thrissur, after obtaining sanction for prosecution against Accused No.8 only. The Special Court took cognizance of the offences on the basis of the fresh charge-sheet and the case was numbered as C.C.No.25/2003 by that court. Subsequently, the case was transferred to the Court of the Enquiry Commissioner and Special Judge, Kottayam and re-numbered as C.C.No.87/2008.
8. Along with two other accused, the petitioner (A9) filed an application for discharge in the Special Court under Section 239 of the Code. As per the order dated 24.06.2017, the Special Court dismissed that application but granted liberty to the accused to raise the contention regarding absence of sanction at the time of the trial of the case.
9. Accused No.9 has filed this revision petition challenging the aforesaid order passed by the Special Court. 10. Heard learned counsel for the petitioner and also the learned Public Prosecutor.
11. Learned counsel for the petitioner has contended that, cognizance of the offences taken against the petitioner by the Special Court on the basis of the second charge-sheet is void in the a
