Thomas Malieckal Vs. Deputy Superintendent of Police, Vigilance and Anti - Corruption Bureau Idukki and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1181853
CourtKerala High Court
Decided OnSep-25-2015
Case NumberWP (C) No. 19011 of 2014 (B)
JudgeB. Kemal Pasha
AppellantThomas Malieckal
RespondentDeputy Superintendent of Police, Vigilance and Anti - Corruption Bureau Idukki and Others
Excerpt:
indian penal code - section 409, section 465, section 468, section 471, section 120(b) - prevention of corruption act, 1988 - section 13(1)(d) r/w section 13(2) - comparative citations: 2015 (4) klt 95 (sn) (c.no.120), 2016 (1) ilr(ker) 158, 1. the petitioner is the 2nd accused in c.c.no.7/2014 pending before the court of the enquiry commissioner and special judge, kottayam, for the offences punishable under section 13(1)(d) read with section 13(2) of the prevention of corruption act, 1988, and sections 409, 465, 468, 471 and 120(b) of the indian penal code. 2. the petitioner is a former government employee, who has retired from service as an executive engineer from the irrigation department. while he was working as the assistant executive engineer, poverty alleviation unit, idukki, he was the officer responsible for the construction work of the play ground of the government vocational higher secondary school, devikulam, which was completed during january, 2007. the vigilance department, on investigation, prepared a factual report and placed it before the government seeking sanction to prosecute the petitioner, alleging that the petitioner along with others had swindled an amount of rs.80,257/- in completing the said work, allegedly by making excess payment to the 3rd accused. 3. the government, on examining the matter, through ext.p4 found that a lenient view could be taken in the case of the petitioner on account of his imminent retirement on superannuation, and the proposal for prosecution sanctioned against him could be dispensed with subject to the remittance of the liability amounting to rs.80,257/- by him. the petitioner was given such an opportunity by the government through ext.p4 order dated 19.03.2012. 4. the petitioner wanted to get the said order reviewed by refixing the liability, since the liability was not properly assessed. through ext.p6 order, the government has reviewed the matter and found that the total liability was rs.20,787/- only and the same had to be shared by all the persons involved and that the individual liability of the petitioner was rs.6,929/- only. through ext.p7 chalan, the petitioner remitted the said amount on 28.09.2012. 5. it seems that the vigilance department has never challenged the said orders passed by the government. they have waited till the retirement of the petitioner from service. after his retirement, without revealing anything about the earlier orders in the matter, they have filed the final report before the court below, on the basis of which cognizance has been taken. 6. heard the learned senior counsel for the petitioner and the learned public prosecutor. 7. the learned senior counsel has invited the attention of this court to the decision in chittaranjan das v. state of orissa[air 2011 sc 2893] wherein, in an identical situation it was held: here in the present case while the appellant was in service sanction sought for his prosecution was declined by the state government. vigilance department did not challenge the same and allowed the appellant to retire from service. after the retirement, vigilance department requested the state government to reconsider its decision, which was not only refused but the state government while doing so clearly observed that no prima facie case of disproportionate assets against the appellant is made out. notwithstanding that vigilance department chose to file charge-sheet after the retirement of the appellant and on that special judge had taken cognizance and issued process. we are of the opinion that in a case in which sanction sought is refused by the competent authority, while the public servant is in service, he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction for prosecution under the prevention of corruption act is necessary after the retirement of public servant. any other view will render the protection illusory. 8. in the decision in state of himachal pradesh v. nishant sareen[(2010) 14 scc 527] it was held: by way of foot-note, we may observe that the investigating agency might have had legitimate grievance about the order dated 27-11-2007 refusing to grant sanction, and if that were so and no fresh materials were necessary, it ought to have challenged the order of the sanctioning authority but that was not done. the power of the sanctioning authority being not of continuing character could have been exercised only once on the same materials. 9. this is a case wherein the vigilance department had sought for sanction from the government to prosecute the petitioner and such a request was placed before the government while the petitioner was in service. then the government considered the matter and took a lenient view, by considering the amount involved in the matter, and also the imminent retirement on superannuation of the petitioner. the government has directed the petitioner to pay the amount, which he was liable to pay. by complying with the said direction, the petitioner has paid the said amount. it has to be noted that the vigilance department has not challenged any of the orders of the government; on the contrary, they waited for the retirement of the petitioner, and without challenging the earlier orders, and without revealing anything regarding the said orders, they filed final report before the court below, which was taken cognizance of. considering all these, this court is satisfied that the prosecution against the petitioner is only a futile exercise. matters being so, all further proceedings against the petitioner in c.c.no.7/2014 pending before the court of the enquiry commissioner and special judge, kottayam can be quashed. in the result, this writ petition is allowed and all further proceedings against the petitioner in c.c.no.7/2014 pending before the court of the enquiry commissioner and special judge, kottayam are hereby quashed.
Judgment:

1. The petitioner is the 2nd accused in C.C.No.7/2014 pending before the Court of the Enquiry Commissioner and Special Judge, Kottayam, for the offences punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, and Sections 409, 465, 468, 471 and 120(B) of the Indian Penal Code.

2. The petitioner is a former Government employee, who has retired from service as an Executive Engineer from the Irrigation Department. While he was working as the Assistant Executive Engineer, Poverty Alleviation Unit, Idukki, he was the officer responsible for the construction work of the play ground of the Government Vocational Higher Secondary School, Devikulam, which was completed during January, 2007. The Vigilance Department, on investigation, prepared a factual report and placed it before the Government seeking sanction to prosecute the petitioner, alleging that the petitioner along with others had swindled an amount of Rs.80,257/- in completing the said work, allegedly by making excess payment to the 3rd accused.

3. The Government, on examining the matter, through Ext.P4 found that a lenient view could be taken in the case of the petitioner on account of his imminent retirement on superannuation, and the proposal for prosecution sanctioned against him could be dispensed with subject to the remittance of the liability amounting to Rs.80,257/- by him. The petitioner was given such an opportunity by the Government through Ext.P4 order dated 19.03.2012.

4. The petitioner wanted to get the said order reviewed by refixing the liability, since the liability was not properly assessed. Through Ext.P6 order, the Government has reviewed the matter and found that the total liability was Rs.20,787/- only and the same had to be shared by all the persons involved and that the individual liability of the petitioner was Rs.6,929/- only. Through Ext.P7 chalan, the petitioner remitted the said amount on 28.09.2012.

5. It seems that the Vigilance Department has never challenged the said orders passed by the Government. They have waited till the retirement of the petitioner from service. After his retirement, without revealing anything about the earlier orders in the matter, they have filed the final report before the court below, on the basis of which cognizance has been taken.

6. Heard the learned Senior Counsel for the petitioner and the learned Public Prosecutor.

7. The learned Senior Counsel has invited the attention of this Court to the decision in Chittaranjan Das v. State of Orissa[AIR 2011 SC 2893] wherein, in an identical situation it was held:

Here in the present case while the appellant was in service sanction sought for his prosecution was declined by the State Government. Vigilance Department did not challenge the same and allowed the appellant to retire from service. After the retirement, Vigilance Department requested the State Government to reconsider its decision, which was not only refused but the State Government while doing so clearly observed that no prima facie case of disproportionate assets against the appellant is made out. Notwithstanding that Vigilance Department chose to file charge-sheet after the retirement of the appellant and on that Special Judge had taken cognizance and issued process. We are of the opinion that in a case in which sanction sought is refused by the competent authority, while the public servant is in service, he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction for prosecution under the Prevention of Corruption Act is necessary after the retirement of Public Servant. Any other view will render the protection illusory.

8. In the decision in State of Himachal Pradesh v. Nishant Sareen[(2010) 14 SCC 527] it was held:

By way of foot-note, we may observe that the investigating agency might have had legitimate grievance about the order dated 27-11-2007 refusing to grant sanction, and if that were so and no fresh materials were necessary, it ought to have challenged the order of the sanctioning authority but that was not done. The power of the sanctioning authority being not of continuing character could have been exercised only once on the same materials.

9. This is a case wherein the Vigilance Department had sought for sanction from the Government to prosecute the petitioner and such a request was placed before the Government while the petitioner was in service. Then the Government considered the matter and took a lenient view, by considering the amount involved in the matter, and also the imminent retirement on superannuation of the petitioner. The Government has directed the petitioner to pay the amount, which he was liable to pay. By complying with the said direction, the petitioner has paid the said amount. It has to be noted that the Vigilance Department has not challenged any of the orders of the Government; on the contrary, they waited for the retirement of the petitioner, and without challenging the earlier orders, and without revealing anything regarding the said orders, they filed final report before the court below, which was taken cognizance of. Considering all these, this Court is satisfied that the prosecution against the petitioner is only a futile exercise. Matters being so, all further proceedings against the petitioner in C.C.No.7/2014 pending before the Court of the Enquiry Commissioner and Special Judge, Kottayam can be quashed.

In the result, this Writ Petition is allowed and all further proceedings against the petitioner in C.C.No.7/2014 pending before the Court of the Enquiry Commissioner and Special Judge, Kottayam are hereby quashed.