[Prevention Of Corruption Act] Private Complaint Against Public Servant Can't Be Forwarded For Investigation Without Sanction: Kerala High Court

The Kerala High Court on Friday reiterated that the requirement of sanction under section 19 of the Prevention of Corruption Act is a prerequisite for presenting private complaint against a public servant alleging the commission of an offence specified in sections 7, 11, 13 and 15 of the Act, for investigation.

The Single Judge Bench of Justice Kauser Edappagath, held that in the absence of such sanction, no such complaint could be forwarded for the conduct of an investigation under Section 156(3) of the Cr.P.C. 

"...as the law now stands, the requirement of sanction under Section 19 of the PC Act is a prerequisite for presenting a private complaint against a public servant alleging the commission of an offence specified in Sections 7, 11, 13, and 15 of the PC Act. No such complaint could be forwarded for investigation under Section 156(3) of Cr.P.C. in the absence of sanction granted by the competent authority under Section 19 of the PC Act", it was observed. 

The petitioners in the present case, who are owners of Ashirvad Lawns and M/s Aiswarya Arcade in Kozhikode, were arrayed as the accused in four private complaints alleging commission of offences punishable under sections 468, 471 and 120B of IPC r/w sections 7, 8, 10 and 13(1) of the Prevention of Corruption Act (PC Act). The allegation against the petitioners was that they along with the remaining accused, had hatched a criminal conspiracy and, in pursuance of the same, put-up construction in wetlands unauthorizedly and illegally and in violation of the Kerala Building Rules. It was further alleged that when direction was given to the petitioners to demolish the building, the corporation officials filed a false report to the effect that the building had been demolished, although it was not actually demolished. 

The complainants thus alleged that the accused persons had committed forgery, falsification of documents and criminal misconduct.

Pursuant to the Enquiry Commissioner & Special Judge, Kozhikode (court below), calling for a preliminary enquiry report from the Vigilance and Anti-Corruption Bureau, pursuant to which, the Deputy Superintendent of Police, VACB, filed a report stating that the allegations in the complaints were not fully correct. It was found that there were laches on the part of the officers of the corporation. The report also could not find any criminal offence committed by any of the officials. However, the court below concluded that there were sufficient materials to show criminal misconduct on the part of the corporation officials and the creation of false documents in connivance with the accused persons 8 to 11. 

It was contended by the petitioners that prior sanction for prosecution against a public servant was necessary under Section 19 of the PC Act before setting in motion even the investigation process under section 156(3) of Cr.P.C. On the other hand, the counsels for the respondent argued that the said provision Section 19 of the PC Act mandates sanction only at the time of taking cognizance and no sanction would be necessary while the court exercises its jurisdiction under section 156(3) of Cr.P.C which is a precognizant stage. It was further argued that since the allegations against the accused public servants included gross misconduct, criminal conspiracy, and falsification of documents, previous sanction as envisaged under Section 19 of the PC Act was not necessary. 

The Court perused Section 19 of the PC Act, and discerned that as per Clause (1), no court could take cognizance of an offence punishable under Sections 7, 11, 13, and 15 that have been alleged to be committed by a public servant, without obtaining the previous sanction of the competent authority referred to in sub-clauses (a), (b) and (c).

"The question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duties. The purpose of obtaining sanction is to see that the public servant is not entangled in false and frivolous cases", it was observed. 

The Court went on to note that the question whether a sanction under Section 19 of the PC Act is necessary or not while ordering an investigation against a public servant invoking powers under Section 156(3) Cr.P.C. was no longer res integra. 

It went on to note a plethora of precedents in this regard such as Anil Kumar & Ors. v. M.K. Aiyappa & Anr. (2013), L. Narayana Swamy v. State of Karnataka & Ors. (2016), and others to conclude that sanction was a necessary prerequisite. 

"Considering the above findings, I am of the view that the Court below could not have forwarded the complaints under Section 156(3)Cr.P.C. for investigation without any sanction under Section 19(1) of the PC Act obtained by the complainants", the Court observed while setting aside the impugned order. 

The Court below was thus directed to proceed with the complaints in accordance with law only after production of the prosecution sanction order under Section 19 of the Act.

Advocates S.K. Saju and M. Asokan appeared on behalf of the petitioners. The respondents were represented by Advocates Muraleedharan R., and K.P. Jose Pious. Special Public Prosecutor VACB A. Rajesh, and  Senior Public Prosecutor S. Rekha also appeared in the case. 

Case Title: C.V. Balan & Ors. v. State of Kerala & Ors. 

Citation: 2023 LiveLaw (Ker) 94

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