THE FACTS LEADING TO THE ACQUITTAL
The case which came up for consideration before the Hon’ble High Court of Kerala, was an appeal against the conviction entered and sentence passed against the appellant ( a U.D.Clerk in the Town Employment Exchange, Pala) by the Enquiry Commissioner and Special Judge, Thrissur ( “Special Judge” fort short) for offences under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 (“ P.C. Act” for short) and Sections 409, 465, 471 and 477-A of the Indian Penal Code, 1860 (“I.P.C.” for short).
iii) The prosecution is bad for not obtaining proper prosecution sanction by the authority competent to grant sanction under Section 19 of the P.C.Act since the authority delegated as the sanctioning authority by the Governor was the Secretary of Vigilance Department and not the Director of Employment although the said Director is the appointing authority as well as the authority competent to remove the accused from his office. (Judgment – para 24, 25 and 27)
The conviction entered and the sentence passed by the Special Judge was accordingly set aside and the appellant/accused was acquitted of all the offences charged against him.
“Therefore, I am of the view that the prosecution case is not legally sustainable in view of the bar of limitation in taking cognizance of some of the offences and also for the reason that the Trial Court did not exercise its power under S. 473 Cr.P.C. before taking cognizance.”
Such a conclusion was legally impermissible.
Absence of prosecution sanction under Section 197 Cr.P.C.
The accused public servant whether removable from his office by or with the sanction of the Government?
The following passage in the judgment in question occurring towards the bottom of page 236 and the beginning of page 237(of KLT) indicates the reasoning put forward on behalf of the appellant and upheld by the learned Judge:
“The procedural rules made by the Governor for the convenient transaction of business of the State Government apply also to quasi judicial acts; provided those rules conform to the principles of judicial procedure. It is therefore clear that the words “State Government” does not mean the Governor himself, but includes his delegates either under a valid law or under Article 154(1) read with 166(3) of the Constitution of India. Learned counsel therefore contended that as per the ratio in the above decision (Gullapalli Nageswara Rao & Ors. Vs. A.P.State Road Transport Corporation & Anr. – AIR 1959 SC 308), a Government employee removable by the Governor or his delegates as per the above said provisions will come within the definition of the Government servant removable by the Government for the purpose of Section 197(1) Cr.P.C. The contention raised by the Counsel is legally sound and therefore I am inclined to accept it. “
With due respect, it was precisely such an identical contention which was repelled by the Federal Court way back in the year 1943 in Afzalur Rahman and Others Vs. Emperor – AIR 1943 F.C. 18 while dealing with the section 197 of the Code of Criminal Procedure, 1898, which corresponds to Sec. 197 Cr.P.C. The Federal Court, in this connection, took judicial notice of the fact that Section 197, in one form or the other, had appeared in successive Codes of Criminal Procedure for more than 70 years then and hence the provision should be interpreted in the light of certain well known features of the administrative system prevailing in India. Adverting inter alia to the verdict of the Madras High Court in Pichai Pillai Vs. Balasuundara Mudali – AIR 1935 Madras 442, the Federal Court observed that rules and regulations had been framed by the provincial Governments dividing the superior and subordinate services into various classes and empowering different authorities to appoint and dismiss officers of the different classes. The Federal Court further observed that such rules and regulations had all along provided that certain superior class of officers can be dismissed only by or with the sanction of the local Government and it is to this class of officers that the Legislature intended to limit the protection given by Section 197. The Federal Court consciously refrained from applying the maxim “ Qui facit per alium facit per se” ( a person who acts through another acts himself) in such situations. Once this distinction is understood, there will be no warrant for an argument of the type advanced before the learned Judge without adequate research. In Nagraj Vs. State of Mysore – AIR 1964 S.C. 269 it was argued before a three-Judge Bench of the Supreme Court that the accused Sub Inspector of Police could be dismissed from service only by the State Government and, therefore, sanction under Section 197 CrPC was necessary for his prosecution for the offences purported to have been committed in the discharge of his duty. The said argument did not find favour with the Supreme Court which held that since an Inspector General of Police could dismiss a Sub Inspector of Police, the latter could not be said to be a public servant not removable from his office save by or with the sanction of the Government so as to insist that sanction of the State Government was necessary for prosecuting the Sub Inspector even if he had committed the offence alleged while acting or purporting to act in the discharge of his official duty. To the same effect is the decision of the Punjab and Haryana High Court in Sant Kumar Vs. State of Punjab - 2003 Crl. L.J. 2949 . Such being the legal position, the contention urged and upheld in this behalf, was wholly unsustainable.
Whether the delegated authority competent to grant prosecution sanction is the Director of Employment or the Secretary, Vigilance Department?
The impact of the writ petition and appeal filed by the accused.
Delay affecting the constitutional rights of the Appellant
“ It has no doubt been indicated in the penultimate paragraph of the impugned judgment that even on merits the offence under Sections 417 and 465 IPC has not been established but that was only a causal observation without application of mind and without consideration of the facts on record on the basis of which the learned Special Judge convicted the two respondents of the offence under Sections 417 and 465 of the Indian Penal Code.”
If as per the Rules and Regulations governing such Government servant, a lower officer of the Government has been invested with the power to appoint or remove such Government servant from office, then it cannot be said that such Government servant is removable by or with the sanction of the Government so as to necessitate a prosecution sanction by the State Government under Section 197 Cr.P.C. The said provision does not, in such a case, contemplate a prosecution sanction by the delegated authority competent to remove such Government servant from his office unlike Section 19(1)(c) of the P.C. Act.
Similar criteria with necessary changes, will apply in the case of a Central Government servant.
What Prompted me
It is in my anxiety to see that a wrong judicial precedent does not fatally affect both pending and future cases, that I have strained so much as if I were sitting in appeal against the judgement. Counsel appearing before Courts also have some responsibility. The Constitution Bench decision in Gullapalli Nageswara Rao’s case ( AIR 1959 SC 308) had been cited and quoted out of context to contend for the position that dismissal from service of a public servant by a delegate of the Government amounts to dismissal by the Government itself requiring sanction under Section 197 Cr.P.C. Similarly, both the appellant and his counsel had no qualms to disown the High Court verdicts which were invited by the appellant himself. I consider it my duty to ensure that the subordinate Criminal Courts are not carried away by some of the sweeping observations in the judgments of superior courts. But with utmost respect I hasten to add that no sort of ill will is meant towards the learned Judge whom I hold in great esteem and affection. After all, dispensation of justice by the Judges is a solemn function carried out in utmost good faith and errors may at times occur quite unintentionally and that is why we have the correctional remedy by way of appeal, revision, review etc.
Justice V.Ramkumar is a Former Judge, High Court of Kerala and Chairman, Advisory Board, Kerala Anti-social Activities Prevention Act.
Read the Judgment here.