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2025 Supreme(Online)(KER) 1627
HIGH COURT OF KERALA
P. G. Ajithkumar, J
D. DEVAPRASAD – Appellant
Versus
STATE OF KERALA – Respondent
Crl.Rev.Pet 348/2024
S.RAJEEV, V.VINAY, M.S.ANEER, PRERITH PHILIP JOSEPH, ANILKUMAR C.R., K.S.KIRAN KRISHNAN, NOURIN S. FATHIMA
Prosecution initiated after the retirement of the accused is flawed if prior sanction was declined due to insufficient evidence, as established in Chittaranjan Das.
Headnote:(A) Prevention of Corruption Act, 1988 - Sections 7 and 13(1)(d) read with 13(2) - Code of Criminal Procedure, 1973 - Section 239 - Accused sought discharge from prosecution for alleged bribery - The Special Judge dismissed the discharge petition, but the court found insufficient evidence to establish grave suspicion of guilt and ruled that the prosecution was initiated improperly post-retirement of the accused. (Paras 5, 10, 12)
(B) Sanction for Prosecution - The court emphasized that the initial rejection of sanction by the Government, based on insufficient evidence, must be respected, and subsequent prosecution attempts were invalid. (Paras 6, 9)
Facts of the case:
The petitioner, a retired Taluk Supply Officer, was accused of accepting a bribe of Rs.27,500/- during a surprise check. The Government initially declined sanction for prosecution, citing insufficient evidence.
Findings of Court:
The prosecution was deemed invalid as it was initiated after the accused's retirement without necessary sanction.
Issues: The main issues were the validity of the prosecution post-retirement and the sufficiency of evidence to establish bribery.
Ratio Decidendi: The court ruled that the prosecution was improperly initiated after the accused's retirement, and the evidence presented did not establish a grave suspicion of guilt.
Result: Revision petition allowed; the petitioner is discharged.
O R D E R
Petitioner is the accused in C.C No.2 of 2018 on the files of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. The final report was filed alleging that the petitioner has committed offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 . The petitioner filed Crl.M.P.No.688 of 2023 under Section 239 of the Code of Criminal Procedure, 1973 . That petition was dismissed by the Special Judge as per the order dated 25.01.2024. The petitioner impugns the said order in this revision petition filed under Section 397 read with Section 401 of the Code.
2. Heard the learned counsel for the petitioner, the learned Senior Public Prosecutor and the learned Special Public Prosecutor (Vigilance).
3. The crime, V.C.No.8 of 2013 of Vigilance and Anticorruption Bureau, Thiruvananthapuram unit was registered following recovery of Rs.27,500/- from the possession of the petitioner during a surprise check of his office on 01.10.2013. He was the Taluk Supply Officer, Neyyattinkara. That was an undeclared amount. After investigation it was concluded that the petitioner had committed the aforementioned offences.
Investigating agency applied to the Government for sanction under Section 19(1) of the PC Act to prosecute the petitioner.
As per Annexure I order dated 28.05.2016 sanction was declined. In the wake of that order, a refer report was submitted by the investigating officer before the special court.
The report was not accepted. The special court returned the report to the investigating officer directing to place the matter once again before the Government.
4. In obedience to the direction of the Special Court, matter was placed before the Government with a prayer to accord sanction for prosecution. The Government as per the order dated 08.11.2017 intimated the Director, Vigilance and Anticorruption Bureau that the petitioner already retired from service and therefore no sanction was required to prosecute him. Hence, the final report was submitted before the Special Court to prosecute the petitioner. He thereafter filed Crl. M.P No.688 of 2023 seeking discharge.
5. Two fold contentions of the petitioner were that in view of the law laid down by the Apex Court in Chittaranjan Das v. State of Orissa [ 2011(7) SCC 167 ], the prosecution initiated against him was bad in law and that materials produced by the prosecution were insufficient to make out a grave suspicion that petitioner has committed the offences.
6. The learned Special Judge held that the law in Chittaranjan Das (supra) has no application to the facts of this case. In Chittaranjan Das, the second request seeking sanction was also declined by the Government. That was after the retirement of the accused. Taking into account that the second request for sanction was also declined and the reason thereof was lack of material for a successful prosecution, it was held that the investigating agency was not right in filing the final report on the premises that the accused had already retired from service.
7. In this case the first application for sanction was rejected. The second request was not considered by the Government since the petitioner had retired from service by that time. When the Government declined sanction for prosecution first time it was observed that materials were insufficient to prove bribery. It was also observed that demand and acceptance of bribe could not be established during the investigation. Of Course, the said view of the Government is not the final word insofar as the prosecution of the petitioner is concerned. But when the permission for prosecution was declined by giving such specific reasons application of mind before taking such a decision is explicit. That order has relevance in the wake of the subsequent developments.
8. In obedience to the direction of the Special Court, the investigating agency submitted a second application for getting sanction to prosecute the petitioner. Pending considerati
