J U D G M E N T

The petitioner is the sixth accused in the case registered as

V.C.No.4/2018 by the Vigilance and Anti-Corruption Bureau (VACB), Kozhikode.

2. The third respondent filed Ext.P7 complaint in the Court of the Enquiry Commissioner and Special Judge, Kozhikode against six persons, including the petitioner. The offences allegedly committed by the accused are not mentioned in Ext.P7 complaint with specific reference to the penal provisions.

3. Accused 1 to 4 were persons who were working as Geologist in the Mining and Geology Office, Kozhikode. The fifth accused was the Director of Mining and Geology. The petitioner, the sixth accused in the case, is a private person. He is the Managing Partner of the firm M/s.Poonoorpoyil Granites.

4. It is not necessary here to narrate in detail the allegations contained in Ext.P7 complaint. Suffice it to state that the crux of the allegations in the complaint is that accused 1 to 5 had entered into a criminal conspiracy with the sixth accused and pursuant to such conspiracy, they had allowed the sixth accused to extract granite stones excess in quantity from excess area of land in violation of the terms of the lease granted to him.

5. On receiving the complaint, the Special Court forwarded it to the Dy.S.P, VACB, Kozhikode for quick verification and report. The Inspector of Police, VACB, who was authorised by the Dy.S.P to conduct the preliminary enquiry, conducted the enquiry and filed Ext.P8 report, which only contained recommendation of departmental action against T.Mohanan (A1), the Senior Geologist.

6. The learned Special Judge considered the preliminary enquiry report and the allegations in the complaint and came to the conclusion that the available materials were, prima facie, sufficient to presume commission of an offence under Section

13(1)(d) read with 13(2) of the Prevention of Corruption Act (for short 'the Act') by the officers of the Geology Department and a detailed investigation is necessary in the case. Accordingly, the learned Special Judge passed Ext.P9 order, forwarding the complaint to the Dy.S.P, VACB, Kozhikode under Section 156(3) of the Code of Criminal Procedure, 1973 (for short 'the Code') for investigation.

7. Accordingly, Ext.P10 F.I.R was registered against accused 1 to 6 by the VACB, Kozhikode under Section 13(1)(d) read with 13(2) of the Act.

8. This original petition is filed under Article 227 of the Constitution of India by the petitioner seeking the relief of quashing Ext.P7 complaint, Ext.P9 order and Ext.P10 F.I.R.

9. Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel for the third respondent.

10. All persons arrayed as accused in the complaint, except the petitioner, are public servants. On receiving the complaint and after obtaining the preliminary enquiry report, the learned Special Judge could not have forwarded the complaint under Section 156(3) of the Code for investigation, in the absence of any sanction under Section 19(1) of the Act obtained by the complainant.

11. Section 19(1) of the Act (as it stood before the amendment by Act 16 of 2018) provided that no Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority.

12. In Anil Kumar v. Aiyappa : (2013) 10 SCC 705 , the Apex Court has held as follows:

"When a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C, obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post cognizance stage. ....... We may now examine whether, in the above mentioned legal situation, the requirement of sanction is a pre-condition for ordering inves